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Duder Law is an ongoing series of posts that looks at relevant areas where gaming and pop culture overlap with the law. The emphasis is on helping gamers understand the news behind the industry, as well as fun looks at odd times when games get dragged into the court room. Please understand that this is not legal advice, and should not be taken as such. Also, find the full blog at DuderLaw.
The Basics of Ownership: Intellectual Property and Gaming
As an IP Lawyer, it is awesome to listen to things like the Bombcast and hear commentators regularly refer to "the IP." Cliff Bleszinski, quite possibly gaming's biggest dude-bro, even posts enthusiastic tweets about "launching his new IP."
While most have probably picked up enough of a definition from context, what does one really mean when they refer to Intellectual Property?Let's start with the basics: In law, Property is sometimes refered to a "bundle of rights" that comes with certain types of ownership. For example, if I own a certain piece of land, it comes with property rights. I can keep others from using it, I can keep the income from the land, I can dispose of the land as I see fit.
(Although I won't be addressing it in this post, keep in mind the right to exclude. It is going to play a major role later on.)
Next, we can divide property across a few categories: First, tangible and intangible; things you can, and cannot, touch. The second distinction is between Personal and Real property. In short, land is real property, other property is personal.
Intellectual Property is primarily intangible, personal property. Of course a book is something that you can touch, and on some level the words printed on the paper have weight, mass, etc., the important piece is that the value derived from them is intangible. They are worth more than the ink and paper, it is the way they are collected and presented.
Ok, good. But we still haven't answered our first question: When Cliffy B says "Bulletstorm is a great new IP!" what is he really referring to? Well, essentially he means his ownership rights over the protectable intangibles that he has created (assuming, as Mr. Bleszinski often does, that all geniusflows directly from himself. In reality, authoriship and ownership can be complex quesstions). He has registered a trademark in the name Bulletstorm, he can exclude others from naming their games the same name. He has written a story for the characters, his copyright also him to exclude others from reproducing it. He has developed a new software process for displaying graphics, his patent also him to exclude others from using it. He has developed a new secret business formula, tradee secret law let's him prevent others from appropriating it.
As we can see, most videogames derive their value from IP law. Without it, they have no value. Anyone can easily copy game code, so why pay for one from People Can Fly? Anyone can make a cheap knock off game and call it Bulletstorm, trademarks prevent this confusion (maybe Bulletstorm was a bad example...).