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Video Games: 21st century art

August 2012

by Catherine Jewell, Communications Division

They thrill, exhilarate and inspire. In just four decades, video games have become an increasingly popular form of mass entertainment, a powerful and exciting platform for innovative art and a multibillion dollar industry.

Super Mario Brothers 3: Shigeru Miyamoto, Takashi
Tezuka, Hiroshi Yamauchi, directors; Satoru Iwata,
executive producer; Konji Kondo, composer, Nintendo
Entertainment System, 1990, Nintendo of America, Inc.
(Nintendo of America, Inc.)

The highly interactive, sleek, realistic and fascinating worlds created in contemporary video games are a far cry from the clunky, pixilated aliens featuring in classics such as Space Invaders and Pac-Man. Contemporary video games are an amalgam of traditional art forms – including music, narrative, sculpture, painting and storytelling - and are increasingly recognized as an artistic medium in their own right.

Pac-man developed by Namco and designed by
John Romero was first released in Japan in 1980.
A landmark in video game history, it is regarded
as one of the most influential video games of all
time. (Photo: http://americanart.si.edu/images/pr/

In 2011, the US Supreme Court put video games on a par with other traditional artistic media stating, “like the protected books, plays and movies that preceded them, video games communicate ideas – and even social messages – through many familiar literary devices (such as characters, dialogue, plot and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world).”

From March to September 2012, the Smithsonian American Art Museum is hosting an exhibition entitled, “The Art of Video Games”, which celebrates the phenomenal evolution of the medium’s art and design spanning the 40 years since video games moved from the arcade into the home.

Curated by video game enthusiast and former Gaming Chief of Sun Microsystems, Chris Melissinos, the exhibition showcases 80 games for 20 systems (ranging from Atari VCS to PlayStation 3), marking different eras of video game development. Featured games were selected through an online vote by 119,000 people from 175 countries. WIPO Magazine explores why video games stand out as an artistic medium, drawing on interviews with some of the medium’s most influential artists and designers.

Since the first pixel winked on the screen of the first home computer console (the Magnavox Odyssey) in 1972, computer game enthusiasts have pushed the boundaries of technological development to create increasingly interactive and sophisticated game environments. This phenomenal evolution is akin to “a leap from cave painting to impressionism in just a few decades,” according to Chris Melissinos.

Marble Madness: Mark Cerny, Steve Lamb, SEGA
Master System, 1992. (© SEGA, All Rights Reserved)

The imagined worlds created in contemporary games offer richly textured, emotional and social experiences that have crossed the boundary into culture and art. “Anything a human does has the potential to express art. There is no difference between digital and traditional; they are just different technologies that people invented to be expressive. They are all art,” notes Jenova Chen, creator of the game Flower.

Many believe the medium’s rapid development is just the tip of the iceberg. “What we have seen from games so far is just the beginning of what this medium is capable of doing,” notes Henry Jenkins, a video game scholar. “Games have become an art, but I think they can become a richer and deeper art.”

Technology: an enabling platform

Rapid technological developments have driven the evolution of video games. In the early days, the idea of computer graphics telling a story was so fresh that video game pioneers relied heavily on players’ imaginations. “The obligation… was heavily on the user withholding suspension of disbelief,” video game producer Don Daglow explains. In certain eras, the capacity of computers in terms of power and space was simply not sufficient to allow the narratives and interactivity that exist today to emerge.

“It used to be [the case] that the hardware engineers would put together cool technology and then throw it at the software guys and say, ‘here, figure out what you can do with this,’ and the software guys… would not only learn how to use it but they would always try to drive it to its maximum limits… evolving it into a more powerful system,” explains video game pioneer R.J. Mical. The push to develop the mechanics for improved video game design has, in turn, driven technical improvements in sound and graphics cards, and CD-ROM and DVD-ROM drives. Today, modern games are among the most demanding of computer applications. Internet connectivity has also opened new doors for creativity and is considered the single largest advance in the development of video games.

In the 1970s, the technological limitations were such that designers made their own graphics and sounds, wearing the hat of director, art director and musician. “We even wrote the manual and designed the box,” notes video game designer Steve Cartwright. “Pitfall evolved out of a lot of trial and error. Having succeeded in making a man run on the screen, they contextualized the game to make it look like he was running in the jungle. All you need is the faintest kernel of an idea… you work on perfecting that little nugget until it feels fun, and you build upon that,” he says.

Similarly, the original design of the iconic game character, Mario, was the result of technological limitations. Created in the early 1980s, his designer, Shigeru Miyamoto, had used just seven pixels to draw his face. “My goal within that limited palette was to create a character that was as distinct as possible,” he recalls. This explains his big nose, moustache and hat – the designer was not keen on drawing hair. Mario has since appeared in over 200 games, becoming an icon of popular culture. “Super Mario is to games what Mickey Mouse is to cartoons,” notes Ed Barton, Director of Digital Media at Strategy Analytics.

Video games and IP


Copyright protects original artistic and literary expressions. Generally speaking, the underlying software on which a video game runs is protected as a literary work, and the artwork and sound are protected as an audiovisual work. Under the terms of the Berne Convention for the Protection of Literary and Artistic Works (1886), which set minimum standards in international copyright law, protection is immediate and automatic and there are no formal requirements to register a work for it to be protected, although in some jurisdictions it is advantageous to do so.

The artwork in a video game enjoys copyright protection insofar as no one has the right to copy the creator’s original work. Certain standard and commonplace elements of the artwork in video games, however, fall under the doctrine of scenes à faire. These elements are not copyrightable to the extent that they are necessary to execute a particular genre of work. Copyright does not protect ideas as such; for example, a game of golf will always include holes, golf balls, golf clubs, golfers, grass, trees and water. While it is not legal to copy these elements verbatim from another golfing game, video game designers have the right to include such standard elements in their games.


Trademarks protect the goodwill and reputation of a company or video game as a brand. The titles or names of video games are typically protected as trademarks. Protection may be acquired through its long-term use – such unregistered marks carry the symbol ™ – or through formal registration – bearing the symbol ® – with the national trademark office of the country in which the game is commercialized. A trademark is a valuable commercial asset that allows an entity to build its reputation in the marketplace. It also ensures there is no confusion among consumers as to the origin of the product or service. Competing games that share similarities can be made distinctive – thereby avoiding any threat of trademark violation – by the name or mark that each adopts.


The functional elements of a video game – the game controllers and consoles - are protected by patents. Broadly, patents are granted for technologies that are new, useful, non-obvious or that have an inventive step.


An influential form of narrative art

In today’s interconnected world, video games are an increasingly popular form of mass entertainment. Their compelling and influential narratives and photo-realistic images are shaping the way many socialize and learn. Video games stand out as an artistic medium, because they offer an immersive experience that can educate as well as distract.

Chris Melissinos believes that, while video games include classic elements of art, they “offer designers a previously unprecedented method of communicating with and engaging audiences by including a new element – the player.” He believes “video games are the only form of artistic expression that allows the authoritative voice of the author to remain true while allowing the observer to explore and experiment… No other medium affords the world this incredible opportunity.”

Jesse Schnell notes that the fantasy role-playing game Dungeons and Dragons marked a turning point in her life as a designer. It made her realize that games offered a “world that was limitless… and that you could make the imaginary real in a tangible way.” Always fascinated with creating entertainment experiences “that make people say ‘wow’,” she says that, as “video games are always integrating new techniques… there are more ways to give people that kind of experience.”

Panzer Dragoon II: Zwei, Yukio Futatsugi, Manabu Kusunoki, original designer; Kentaro Yoshida, art director, SEGA Saturn, 1996. (© SEGA, All Rights Reserved)

Rez: Tetsuya Mizuguchi, producer, Jun Kobayashi, director; Katsumi Yokota, art director and lead artist, SEGA Dreamcast, 2001. (© SEGA, All Rights Reserved)

The Legend of Zelda: Twilight Princess: Shigeru Miyamoto, executive producer; Eiji Aonuma, director, Satoru Takizawa, art director; Eiji Aonuma, Satoru Iwata, producers, Nintendo Wii, 2006, Nintendo of America, Inc. (© Nintendo)

The pros and cons of video gaming remain a hotly debated issue. Many proponents, however, feel they offer players a unique opportunity to gain personal insights and acquire skills. When playing a game, “you feel you’ve succeeded in learning something, and you are good at it,” notes video game developer Mike Mika. It is a medium in which players “can learn something about the world and about themselves,” says video game producer Warren Spector. This is what drives players to come back again and again to relive that experience.

No other form of entertainment puts players “in the shoes of the main character and lets them make choices that will have consequences ultimately,” muses David Cage. “We play games to get some useful information that is somehow linked deep in our brains to survival skills. With a game, it’s about what I should do, what skill should I evolve and what choices should I make,” explains video designer Noah Falstein.

Video games are a complex interplay of storytelling, graphics and music underpinned by technology which provides the mechanics that make it possible to weave together a thrilling experience for players. The story provides a context for players’ actions and choices, and gives the games significance, explains Warren Spector.

As in film, music plays a key role in enriching the narrative of video games. Game music has also come a very long way. “The original composers were essentially programmers who had musical chops… In the last 10 years, the system has changed and come to resemble the model used in the film industry (freelance composers working with a production company),” observes Austin Wintory, a game music composer. For him, the technical capabilities for audio have made it “one of the best times in history to be a working composer”.

Fellow composer Tommy Tallarico, founder of Video Games Live, also underlines the enormous musical possibilities contemporary video games offer. “Games have become so massive now, and there are so many things you can do.” Whereas the games of the past required about 50 sound effects, contemporary games have around 100 hours of game play, 25,000 lines of dialogue and 7,000 different sound effects. “We’re doing things now that Beethoven and Mozart never dreamed would be possible,” he enthused. “We’re able to branch out interactively. I can layer different elements depending on what’s happening on screen and what the player is doing. The player becomes the conductor on the stage. The massiveness of it all is overwhelming. At no time ever in the history of the world has more music been played more times than in video games right now,” he explains. “I’ve always said if Beethoven were alive today, he’d be a video game composer.”

A dream coming true

For the pioneers, contemporary games, such as Uncharted Two and Among Thieves (2009), “are what we used to dream about 20 years ago becoming a reality,” notes R.J. Mical. Despite the medium’s phenomenal evolution over the last 40 years, there is a sense that much more is to come. “Interactive entertainment is still in its infancy; it’s similar to the early days of the film industry,” notes Megan Guiser, President of Her Interactive. “The digital economy is changing the way we interact, the way we do business and the way we play. The rules are changing, and creativity is the equalizer,” she says.

Pioneering video gamer and founder of Atari Jeff Bushnell is unequivocal about the continuing importance of this exciting platform for innovative art: “the next big wave of competition is going to be that of creativity, and I believe that video games, more than anything else, foster the mindset that will allow creativity to grow.”

“The Art of Video Games”, which runs until September 30, 2012, is one of the first major exhibitions to explore the art and craft of this increasingly powerful, expressive medium that seems set to become the major art form of the 21st century.

The WIPO Magazine is intended to help broaden public understanding of intellectual property and of WIPO’s work, and is not an official document of WIPO. The designations employed and the presentation of material throughout this publication do not imply the expression of any opinion whatsoever on the part of WIPO concerning the legal status of any country, territory or area or of its authorities, or concerning the delimitation of its frontiers or boundaries. This publication is not intended to reflect the views of the Member States or the WIPO Secretariat. The mention of specific companies or products of manufacturers does not imply that they are endorsed or recommended by WIPO in preference to others of a similar nature that are not mentioned.