WIPOD – Make IP Your Business: Transcript of Episode 1

Videogame Development: A Quest for IP
Level 0 - Videogames and IP: A Perfect Match?

Micaela Mantegna: As videogames you think of vertical slice of your game, and similarly you should think also about the vertical side of the intellectual property (IP) of your game.

Allison Mages: Welcome to Make IP Your Business podcast. We call this season “Videogame Development: A Quest for IP”. It's part of WIPO's Entrepreneur Online Network (EON). This initiative exposes entrepreneurs like you to IP issues critical to your business. It will also kick off across regional network focused on videogames where you can exchange best practices and join online events. You will also get an opportunity to participate in clinics where you get one-on-one advice from IP professionals.

We are doing a podcast about videogames. Why are we here? Let me start. My name is Allison Mages. I'm Head of the IP Commercialization section here at WIPO, and we're responsible for helping businesses maximize their potential through IP.

Micaela Mantegna: I’m Michael Mantegna and I like to define myself as an AboGamer, which in Spanish, stands for a being a fan of videogame while being a lawyer at the same time.  I'm also a scholar at Berkman Klein Center for Internet and Society at the Harvard University and I will be this season’s Co host.

Gaetano Dimita: I'm Gaetano Dimita, I'm a Senior Lecturer in Intellectual Property Law at the Queen Mary University of London. My entire research and teaching is focusing on games and interactive entertainment law.

Allison Mages: Let's talk a little bit about how we each got into videogames, Micaela, what about you?

Micaela Mantegna: The short version is the following. I have always been a gamer and I have loved videogames since I was a child. I love the ways that videogames tell stories and let you imagine yourself in different roles, in different professions and in different stories. Moreover, there are many games that I have fallen in love with, from Baldur’s Gate, to Doom. However, the game that has shifted my perspective and made me consider videogames as a career was Mass Effect. One quote in particular made a really profound impact on me, and it was the following “Does this unit have a soul?”. I consider this quote very deep as it is essentially an Android, asking its creators, whether its unit has rights. This quote has sparked my interest in AI ethics and influenced my future career.

Moreover, it is very interesting to see that you can shift your profession into the videogame industry, as there is a place for everyone there. Whoever you are, be it an artist, a coder, a lawyer, the industry needs you and that’s how I ended up involved in the videogame industry.

Allison Mages: That's awesome, thank you for sharing your experience, Micaela. Videogames indeed are a place for everyone. Gaetano, where is your place in the videogame industry?

Gaetano Dimita: Videogames have been with me since the beginning I actually do not remember which one was the first videogame that I played. I have been with them since Atari, and that goes on to show how old I am. Jokes aside, games really, have always been a vital part of my life. After law school, I did a PhD. in IP. Upon finishing my PhD, I was asked, what I would like to teach and my answer came in automatically “I want to teach interactive entertainment”. I wanted to teach about videogames and IP, as I find it fascinating to teach on videogames that I love, and at the same time, teach also about some of the most complex aspects of IP.

Allison Mages: Thanks for sharing. We will hear about what all those complex aspects of why IP really helps propel your videogames and what you want to about it throughout the series. I will of course take a turn as well and share how I got into videogames. I remember saving up for my first videogame, that was Mario Brothers. I was so excited to have my first console with Nintendo way back, and I have always had love for videogames.

That’s also why we are super excited here at WIPO, to do this project. My background is more in the business world. I spent about 15 years working for a Fortune500 company, in all sort of different aspects of IP. From helping create IP rights themselves, as an inventor, to working as a lawyer, supporting the business and then eventually helping with mergers and acquisitions.

Gaetano let us start with you. What does IP have to do with videogames?

Gaetano Dimita: Oh everything. IP is omnipresent and this is especially the case in videogames. Certainly, there is the creative and innovative part. There is also the way that games are commercialized. Moreover, the people designing videogames actually get financial benefit and recognition for their creation through IP. As I mentioned before, IP issues in videogames, are indeed complex. It is because IP law here, deals with works that are born digital and are interactive, it also involves participation of a player.

This complexity, the fact that videogames are a global business and the fact that they are a result of a very complex contractual metrics, and that globally, we have different forms of regulations, makes videogames and amazing and fascinating area of research. However, If you have to deal with videogames in practice, these issues create a lot of questions. At the same time, IP is there, for the innovators, for the creators and these are some of the aspects that we will aim to demystify. We will also discuss the ways in which IP rights in videogames are monetized.

Allison Mages: Micaela, what about from your perspective? Why IP and videogames?

Micaela Mantegna: What attracted me toward IP, is the way creativity intertwines with IP, and how IP helps protecting your creativity. At the same time, it is indeed very complex dance  between IP and videogames, as Gaetano was saying, because videogames are complex creatures. You can have various IP rights on single screenshot from a videogame. As videogamers you think of different vertical slices of your videogame, you should think of the vertical slice of the IP of your videogame.

You can have trademarks for the name of your game, you can have copyright protection of your characters, you can have copyright on the script of your game, on the music. It is important to keep in mind, that you need adequate protection for your videogame not only for the market in which you are creating it, but also for the perspective markets in which you are thinking of placing your videogame on.

Adequate protection, is really important for the success. It is also essential that you think of all these issues ahead, when you are creating the game, since the very inception of the game. This leads us to why I am also super excited about this podcast, as it will go through several phases, into the nuts and bolts of the issues that you need to pay attention to.  At the same time, it is not only about protecting your IP, but also about making sure that you are not infringing someone else’s IP.

As gamers, as fans, we know that we love to pay an homage to things and sometimes people start in the videogame industry by creating games that have these little elements that are meant with no harm and good intentions, but can give you a lot of trouble moving forward.  Sometimes, these will be passion projects, that end up being commercialized. Therefore its very important to have a really good IP education , in order to transition a side hobby into a very professional project.

Allison Mages: Thank you Micaela. Gaetano, I think it's exactly this complexity that we're going to try and breakdown during the podcast. Now here's a preview for all of you listening about what you'll hear during this season.

We're breaking it up into five different levels, and in each level we explore a different stage of videogame development with companies ranging from industry giants like Riot Games, Tencent, CD Projekt Red and Konami to indie developers like Macula Interactive and Green Horse Games. We want you to hear from people who have been there about how IP impacted their business.

We are starting at the concept phase, then we will move to development and launch, then finally we will dive into the challenges and opportunities in using intellectual property to help game developers navigate IP and understand when to ask for professional support. A special feature of each level are the PowerUps. These are one page checklists that cover key IP concepts in each level. Speaking of PowerUps, , we're in the tutorial today. Can you walk us through the different IP rights and how they relate to videogame development?

Gateano Dimita: Yes, there is a multitude of IP rights. IP rights are there to protect some subject matter against some uses. Generally, we will focus on the big IP rights.

We have copyright. Copyright is the right that is a core right for creators and authors. Copyright protects the creation of the mind; it encompasses almost everything in videogame. From the underlying software to any single audio visual element, through the expression of the storyline, the music, the dialogues, the text, and so forth. Everything that is original and is expressed is going to be protected by copyright. We will go back to discussing copyright in the course of this episode, because you get copyright protection at the time of creation or at the time of fixation, depending where you are, and it's automatic. You don't need any registration so copyright is there, even if you don't know that is there.

On the other side, we have registered rights, which are equally important. We will touch on trademarks, on design and on patents. Trademarks is the right that protects the logo, the symbols, to some extent the sound. It protects everything that is distinctive and creates a connection with your company and your business. Trademark serves to differentiate your business, as the originator of the particular good or service, from all the other companies.

Trademark is different to copyright as you have to register this right and you have to apply for registration in an IP office. Moreover, you need to specify, in your application, the countries in which you want your trademark to be protected, you also have to specify the categories of goods and services for which you seek the trademark protection.  Therefore, if you don’t get registration of the trademark, you do not have protection over the particular sign that you want to use.

When thinking about trademark, you should consider thinking about the name of the videogame, name of the company, name of the main character. At the same time, you don’t have to limit yourself to protecting what I just mentioned, you can also register for trademark protection over a particular weapon that is being used in your videogame, and you might want to create merchandise about this weapon later on. You can also protect sounds. To some extent, you can also register trademark as audio visual. We will get into the details, but these are all things you could in theory, protect by IP.

Then we have patents. Patents are normally, the one IP right that is looked at , by the videogamers, in particularly by the smaller videogame developers, with more suspicion. This is caused by the fact that videogame developers are afraid of infringing on patents. As you can infringe on a patent, even if you don’t know that there is a patent over that particular invention, and naturally, videogame developers also worry about the expenses. At the same time, importance of patents is often overlooked. Patents represent 20 years of monopoly over an invention. Therefore patents, permit you to actually control how your invention is used by others. You can license your invention, or you can stop others from using your invention.

Patents are a strong right, for which you not only have to register you also have to apply. Meaning the following, in order to have patent over your invention, you have to apply for patent by specifying what the claims of your invention are. You describe your invention, then you apply to the Patent office. Patent office examiner is going to examine your invention and the claims you wish to include in your patent application. If you are successful, you will be granted a patent for 20 years in the jurisdiction in which you applied for that patent.

So this is just an overview. We're going to get back to the various IP rights in the PowerUps and in particular in the clinics, there's going to be a lot of practical discussion on this aspects of IP.

Allison Mages: Gaetano, why do you think the industry has developed this way and it is more open to letting other people use your IP, kind of approach?

Gaetano Dimita: I guess because the business model is based on being known and retaining your players. However, in some way, streaming and esports obviously are an exception because their industry is massive and they are very different companies that are within these industries. So without generalizing, the business model in the videogame industry, is about maintaining your player at peace, so they keep playing the game and either directly or indirectly they keep paying.

There is an intension, to have people playing. Creativity based within the videogames, actually increases the accessibility of the game in a sense that more people will find out about the game and when the players themselves are creative in the games, they will spend more time playing it. Therefore we can see that creativity fosters creativity.

It will indeed be interesting how it will evolve. Moving forward, Micaela mentioned the metaverse, the videogame industry could be a case study, for the rest of our more immersive, online life. This is because of the capacity of maintaining, governing and dealing with IP's within online communities. Many successful cases of cross licensing of IP, mainly trademark was done in trademarks, even in movies about videogames. So this incredible negotiation between the hundreds, if not thousands of IP owners, that takes place in order to create a new environment, is a case that you only see in videogames.  In other industries, such scenarios are much rarer.

Allison Mages: Gaetano, you were talking about how licensing is such a big deal. Micaela, how do people really make money from games? Is it the game itself, or is it through other kinds of things like merchandising and expansions of cross-media?

Micaela Mantegna: That’s a fantastic question, because videogames have really different business models. At the end of the day, it's going to be not only the one way you thought you will make money, but the one that makes more sense to your business.So Gaetano was mentioning, the secondary markets where you can get ancillary revenue, for example like licensing the creation of figurines.

There is a huge market of collectibles. You can have expansion to books. I don’t want to mention Mass Effect everytime, but not to quote every single time Mass I remember that, it is a game that was an originally created to be a videogame, and it expanded into a series of books. There were also discussions on creating a movie of the game. All that I mentioned, is interesting because, videogames used to work the other way around.

In a way that, there were videogames were adapted from already existing IP and now we are witnessing that digitally created videogames are creating IP rights that are adapted to other medias. Like when we talk about X-Runners on Netflix. It really is interesting, to see the versatility of telling stories and the markets you can reach.  So in terms of your IP strategy, it makes sense to think what are your strengths.

This is not just for AAA games, you have really successful indie games. I'm thinking about Cup Heads, for example, this game was a huge success. They ended up being supported by Microsoft and Xbox on this, but the whole project started as an independent studio. For people who are tuning in from outside the videogame area, this was a videogame that used traditional techniques from animation to create the feeling of a cartoon from the 50s. The game ended up having a massive market, also by selling T-shirts, figurines.

Their game also was adapted into Netflix series. The possibilities with your games are limitless, but you have take into account your IP strategy and also even if you are not doing, similar type of animated series, like I just mentioned, you should know where you can find allies to enhance IP you are creating.

Allison Mages: I think it's incredible Micaela, that people who are create IP that goes off and expands in huge way, are often the indie studios, who are just starting out for the first time, who may not have been thinking about all these potential expansions as they were newer to the business. All that, is pretty incredible.

That's it for our tutorial now. Tune in and join us this season with Riot Games, Macula Interactive, TENCENT, CD Project Red, Konami and Green Horse games.

To hear about how IP affected their businesses and how it can help you and your videogame succeed. This season is part of Make IP Your Business podcast brought to you by WIPO, the UN Agency for IP that enables innovation and creativity for everyone, everywhere.

You can find all the episodes, download the PowerUps and join the community on our website. Check out the show notes for the links, see you in Level 1!