What is a videogame under IP law?

From its first iterations in the form of Tennis for Two to Grand Theft Auto VI, videogames have always expressed a complex nature, mixing audiovisuals elements to game mechanics, scenarios and stories (in a lesser degree for the former) as well as programming to give rise to a new sort of media.

Genres rose and fell, but one common issue remains how does one protects their intellectual property linked to a videogame?

As we will explore, the answer is quite difficult, namely because of the composite nature of the videogame itself and the multiplicity of authors contributing each to a specific part of the videogame. Different part of the videogame will be protected by different legal provisions as there are no rules protecting the entirety of it.

‍

‍

1. How a videogame is viewed

‍

Defining the key element

A videogame could be divided in various parts, the principal being the story elements, the game mechanics, the audiovisuals renders as well as the software used to make all of this playable¹. This lead to three different interpretative trends across most jurisdictions².

Countries following the first interpretation understand videogame as complex composite works composed of the aforementioned elements, finding that not one should take precedence over the other. In this framework, protection will depend on which aspect of the videogame is at stake, using the closest rules provided by their legal system³.

The second interpretation, which is only shared by a small number of countries, establishes that the audiovisual element takes precedence over the software aspects. Under this interpretation, videogames benefit from the same degree of protection as a movie. These countries recognize the existence of the technical part of the videogame (and protect it), but deem it minor in comparison to the audiovisual part⁴.

Finally, under the third interpretation, it is argued that the essence of a videogame is a computer program. As the basis of the videogame is the software, it is this part of the videogame that should be protected⁵. Thus, provisions applying to software should also apply to videogames under this definition.

Impact on ownership

As mentioned, a videogame is composed of a multitude of layers, and it is uncommon for a lone developer to be capable to create a videogame from the ground up.

Therefore, comes the question of ownership, who owns the IP rights of the complete videogame?

The author of the script, the programmer for the game engine, the sound designer, the asset creator or the studio behind the game?

While there are still some differences between national laws, some trends have emerged.

Copyright ownership for software is widely understood as being automatically transferred from the employee to the employer. This is the case for Argentina and France for example, in these countries additional contractual provisions or agreements need to be entered into to provide for the transfer of copyright for other work such as music, game mechanics and so on⁶. Switzerland follows the same system through art. 17 of the Federal Act on Copyright and Related Rights (“COPA”). The question of the identity of the author is extremely difficult as such definition varies from country to country. If we were to revert to our previous examples, under French law an employee could still be considered an author, even for software, which means they retain moral rights on their creation such as the right to be named as author while patrimonial rights can be freely (or automatically in the case of software) transferred to the employer⁷. Argentina also recognizes the author as the sole holder of moral right, only economic rights can be transferred to another party through written contract with the exception of software development, in which case the employer is recognized as the author automatically⁸. Again, Switzerland follows this interpretation through art. 17 COPA which provides that the employer alone can exercise the exclusive rights of use in case of software. These exclusive rights of use are described under art. 10 COPA and include, namely, production, distribution, or presentation of the works. The employee retains the right to appear as the author of the software under art. 9 COPA. If the work is not a software, then copyright remains with the original author, but can be transferred to someone through agreement in application of art. 6 and 16 COPA.

To illustrate this, imagine a Swiss based company named A employing Swiss-based individuals for their next videogame. X was tasked to develop the part of the software responsible for the in-game physics of the cars. Y has been hired to draw the cover and the logo of the videogame. The exclusive rights of use held by X will be automatically transferred to A as long as the X’s works were created to fulfil their contractual obligations. Alternatively, Y’s rights will only be transferred to A if their employment agreement provides for the transfer of the exclusive rights of use or if an additional transfer agreement is entered into. Both X and Y are undertaking creative tasks for A, but as highlighted the consequences on copyright can vastly differ.

‍

‍

2. What protection is offered

‍

Trademarks

Trademarks allow to register name or logos and can be used to protect a videogame’s title and logo from infringing and confusing uses by third parties⁹. In addition, some iconic characters have been registered by various studios, for example Sega has registered multiple figurative and design marks for Sonic¹⁰, while Nintendo did the same for Pikachu, Link or Mario.

Recently, nontraditional trademarks are increasing in popularity, for example sounds or animations. This led to renewed interest in trademarks by the videogame industry to protect its intellectual property. Nintendo has filed the well-known Super Mario coin sound this way and Tetris Holding had already done the same for the soundtrack of their famous game¹¹.

Name, logos, characters or sounds registered as trademarks allow their holders to establish a distinctive identity for their brand and oppose the use of confusingly similar marks by competitors. However, this protection is limited to the country of registration, it is thus important to clearly delimit and establish a strategy regarding relevant territories.

Copyrights

Through copyright, an author is able to protect its work if it is (i) original and (ii) expressed in a fixed and tangible way, such as literature, theatre, music or art. As implied above, videogames integrate various aspects that can fall under copyright law such as the musical elements, the base software or artistic representations¹².

Copyright rightsholders enjoy a broad protection for their original expression of their ideas as it allows them to oppose the copy and reproduction of their original expression¹³.

The main issue, as already mentioned, lies on the fact that videogame are multifaceted creation and thus copyright does not apply to all of its aspects. Furthermore, each country does not protect videogames the same way. For example, in the United States, videogame protection under copyright law falls either under audiovisual work or literary works, whereas in the European Union it is considered as a complex work comprised of software and non-software elements¹⁴. Consequently, it can be difficult to establish which parts of the videogame can be protected by which copyright provisions. In any case, it is important to remember that copyright will not protect the underlying idea, only its unique and original expression.

Patents

Criterions under which an invention can be patented can vary greatly from a country to another. In the United States, one can file a patent for any new and useful process or machine as long as it is not obvious¹⁵. Members of the European Patent Union recognize patentable inventions as novel, inventive and capable of industrial application. In addition, such inventions shall be able to be described in order for a person to carry out the invention, and they should not be excluded by the Convention¹⁶.

In the case of videogame, two aspects could be the subject of patents, the hardware and the software. Regarding the hardware, such as gaming consoles or cartridges, it is usually protected as any other electronic devices¹⁷. Difficulties arise regarding software as it has been historically seen, for example in Europe, as not patentable because of explicit exclusion. However, case law has, at various points, recognized the patentability of software through the technical effect arising out of it¹⁸. In this case, the subject of the patent will be the technical effect and not directly the software. Despite this precision, the result is similar as it allows the protection of the finality of the software, barring use from third party. This allowed Konami to patent a software used to indicate and show on screen pass guides between players of the same team in a multiplayer game¹⁹.

The United States on the other hand have always showed more leeway in accepting patents for software, namely for gameplay elements and mechanics, for example Namco Ltd’s patent allowing one to play auxiliary game during loading screens²⁰ or Warner Bros’ patent for the so-called “Nemesis system” allowing for antagonists growth and evolution in response to player’s actions²¹.

Although it can be difficult to acquire a patent, it results in the ability for the holder to oppose the copy, importation or use of the patented invention by third parties.

‍

‍

3. Insights

‍

Videogames, given their multifaceted nature, provide a challenge to the existing intellectual property classification, which is accentuated by national differences. It is therefore primordial to select and highlight features of the game that requires protection such as a novel game mechanic that could be patented, or an original character design that could be trademarked. In addition, it is important to have the necessary provisions in place in agreements between the company and its employees as well as with freelancers.

With the rise of videogames in the entertainment industry, leading to the creation of derivative properties such as movies, there might be a push toward the elaboration of a common framework regarding the definition of videogames in intellectual property law. Such framework would not only protect major publishers and developers, but also allow independent developers to better understand and access protection for their creations. This checklist, while concise, offers a good starting point to reflect on your future endeavours :

• What is the product identity, how do players recognize it? This will assist in determining which logos or names should be trademarked.
• Which countries do I wish to export to? This is necessary to determine where you will register trademarks.
• What is the approach of my jurisdiction regarding copyright and videogames? This is primordial to understand how copyrights will be transferred to you.
• Do I have the necessary intellectual property transfer provisions in my various employment agreements? Without such provisions in place, it will be extremely risky to commercialize the product.

In the meantime, our firm is here to assist with your intellectual property strategies regarding videogames as well as any other kind of software. Contact us to tailor your legal strategy to your particular product and goals.

‍

¹ DIMITA Gaetano, Understanding Intellectual Property in Video Games, p. 17.

² RAMOS/LOPEZ/RODRIGUEZ/MENG/ABRAMS, The Legal Status of Video Games, N 12-17.

³ Id., N 14.

⁴ Ibid.

⁵ RAMOS/LOPEZ/RODRIGUEZ/MENG/ABRAMS, The Legal Status of Video Games, N 14.

⁶ RAMOS/LOPEZ/RODRIGUEZ/MENG/ABRAMS, The Legal Status of Video Games, N 17ss and 96ss.

⁷ Ibid.

⁸ Ibid.

⁹ DIMITA Gaetano, Understanding Intellectual Property in Video Games, p. 23.

¹⁰ ZIELAZNICKI/SUMMERFIELD/CEN, IP Protection fo Featured Characters in Digital and Physical Media, 16 November 2023 in : troutman pepper locke

¹¹ SETH Adam, Unlocking protection : trade marking your video game’s unique features, 12 September 2024 in: Kilburn&Strode.

¹² DIMITA Gaetano, Understanding Intellectual Property in Video Games, p. 18ss.

¹³ Protection of a videogame, 17 August 2022, in: Copyright.eu.

¹⁴ DIMITA Gaetano, Understanding Intellectual Property in Video Games, p. 18ss.

¹⁵ Patent essentials, in : USPTO website

¹⁶ DIMITA Gaetano, Understanding Intellectual Property in Video Games, p. 24ss.

¹⁷ Ibid.

¹⁸ CLARK Dave, IP in software: What type of software is patentable in Europe? In: Potter Clarkson

¹⁹ Decision of the Boards of Appeal of the European Patent Office, T 0928/03 of 02.06.2006

²⁰ CHAN Jacqueline, Patenting Play : Analyzing Recent Video Game Play Patents, December 2025, in: Baker Botts.

²¹ SHEPARD Kenneth, The Nemesis System Was One of The Best Things Gaming Ever Did, And WB Just Killed it, 25 February 2025, in : Kotaku

‍

‍