Video games and Intellectual property

Author: Preslav Baldzhiev

With the development of technology, consumers are getting more and more new ways to have fun. In the last 20 years, a significant part of the entertainment industry has been occupied by video games, which are increasingly displacing film and music productions.

What are video games?

Video games are electronic games with a user interface through which the player receives visual feedback. Video games are played on electronic devices known as platforms – currently, the most popular platforms are computers, PlayStation and Xbox consoles, and increasingly mobile devices (smartphones and tablets).

Video games as Intellectual property

With the development of the gaming industry, the question of whether games can be the subject of intellectual property and, if so, how they can be protected is increasingly being raised. The problem is the multi-layered production – more and more often video games have visual elements (appearance of the characters, the created reality in which the action takes place, the shape of objects in this reality, etc.), audio elements (all kinds of sounds, which are part of the game including music/soundtrack) and text elements (script and especially the code that is used to program the video game itself).

Тhis multi-layered nature is the reason why different legislations regulate video games differently – in some countries video games are accepted only as program code, others equate them to film productions, and more developed legislation accepts video games throughout their complexity (considers them as a set of individual elements).

Different approaches to determining what exactly video games are also found in the European Union, which clearly shows a legislative gap. At present, according to the European Patent Convention (EPC), games can be accepted as computer programs. According to other theorists, video games can be equated with databases – such a theoretical dispute seems meaningless, given that the legislation treats the two objects of intellectual property in the same way, as well as the prevailing understanding that the concept of “database” is broad and includes the term “computer program” in itself.

As discussed in another article, the EPC does not provide patent protection for computer programs (as well as for databases, which is an additional argument in favor of overlapping the two terms), but exceptions are possible (identical to those for artificial intelligence) – the computer program shall have a technical effect and only then its patenting will be possible but as part of the whole system in which it is integrated (such is the case with the Nintendo Wii console).

The EPC also influences the Bulgarian legislation – the Patents and Utility Models Registration Act (PUMRA) explicitly excludes the possibility of patenting video games (Article 6, paragraph 2).

Despite these limitations, video games are still subject to copyright protection – copyright is exercised in respect of each individual element of the video game (script, music, the appearance of the characters, etc.) and not as a whole. The program code on which the game is developed is also subject to copyright protection (the program code is equated to a literary work).

This can create a serious legal problem, as to date, there is almost no video game created by just one person or just one company – the productions are the result of collaboration between individual gaming studios (example: one of the studios develops the graphic part, another studio – creates the program code and so on).

However, a video game can be developed as an entirely internal project by a stand-alone company. In this case, the copyright on the final product will be only for the company-developer (unless otherwise agreed), as the company’s employees will have fulfilled their employment obligations. This is a feature of the European legislation, which is manifested in the Bulgarian Law on Copyright and Related Rights (LCRR), in particular in Art. 14.

There are also views that video games can be protected as a trade secret. At first glance, it seems logical, as any future production is kept secret until the release date. One of the peculiarities of the trade secret, however, presupposes that the protected trade secret object is not known either to the general public or to experts in the relevant field. This raises the question of whether the protection of trade secrets will be in force after the date of release of the game – however, after the date of release the game becomes known to the public (especially the story of the game) and the product can be purchased by any user.

However, the list of users who will be given access to the so-called closed beta version of the game can be protected as a trade secret (closed beta is a name that denotes games in a test period, and the testing itself is done from a predetermined small group of users).

Currently, the most used way to protect the names of video games is to register a trademark – examples of such names are “Grand Theft Auto”, “Pro Evolution Soccer”, “Assassin’s Creed” and others. However, trademarks provide protection only to the name of the respective video game in order to be able to associate it with its proprietor. The rights that the trademark owner receives are absolute, but this right only protects what is registered, namely the title and its logo (example: the famous fragmented logo of the games from the “Grand Theft Auto” series).

This incomplete protection of video games is most evident in the above-mentioned examples and their main competitors. While the title “Grand Theft Auto” is exclusively for the company Rockstar games (trademark owner), their concept of an open-world game in which the protagonist (character) performs certain missions is recreated by games such as “Saint Row”, “Driver”, Fallout, Far Cry and others (the four titles listed are registered trademarks and are owned by different companies). While the title “Pro Evolution Soccer” is exclusively for Konami, their concept for a football game simulator has been recreated by their main competitor EA GAMES in the game “Fifa”.

In sports video games such as “Fifa” and “Pro Evolution Soccer”, image rights must also be considered. The issue became extremely popular due to the scandal between the football player Zlatan Ibrahimovic and the American company Electronic Arts INC – the athlete told the media that neither he, nor the football club he plays for, nor FIFpro allowed the California-based company to use his face in their products.

Video games can also be protected as an industrial design – only their graphic images in the form in which they are claimed fall under such protection (the possibility to protect computer programs as an industrial design is legally rejected). Simply put, graphic images should be understood as any images for the creation of which a computer program or other type of digital device has been used. That is, any textures can fall here – from those that are related to the appearance of the character (character) and the means used by him such as cars, weapons, cameras, etc. to those that relate to vegetation, the appearance of buildings, roads, and radar (mini map).

Right of the User

The creation of a video game is always accompanied by a commercial purpose – the product to bring a return on investment. This creates a specific relationship between the end-user and the company developer.

By purchasing the game, the end-user does not acquire ownership of the final product (the video game itself) – the price paid is the remuneration that the end-user pays to obtain a non-exclusive right of use (license). If the video game is purchased on a tangible medium (example: CD), then the end-user, in addition to the right of use, acquires the right of ownership only on a tangible medium.

This right of use is the reason for each purchased video game to be accompanied by a license agreement (End-user license agreement), which explicitly regulates the rights and obligations of the parties. In general, the consumer has the following rights, as long as they relate to the purposes for which the right of use was acquired:

  • To load the game;
  • To display the game on the screen;
  • To perform it;
  • To transmit it remotely;
  • Store it in computer memory;
  • Translate or rework it.

The above-mentioned rights are enshrined in both European and Bulgarian legislation, leaving the possibility between the parties to negotiate them. Despite this discretion, there would be an opportunity to negotiate in the latter right (and in particular in the case of reworking), as other rights are directly related to the actual use of the program or video game.

More details on the user’s disposal of the right to use can be found in the article ” Resale of licensed software – is it legal?”, As far as video games are equated to computer programs. In addition, the provisions of the article entitled ” Torrent sites and Intellectual property” should be taken into account, especially given that torrent sites are a major source of video games and other objects of Intellectual Property.

Pros and Cons of video game protection

The practical problems associated with the protection of video games as objects of intellectual property provoke a purely theoretical controversy over how far this protection should extend.

There are currently two opinions, one of which seems rather extreme. The first thesis advocates the idea that these products should receive comprehensive and complete protection that is not fragmented – starting with the most basic (program code and technologies used) and reaching the end result (the game as a whole).

According to the supporters of the second idea, such a move would kill the competition and create a monopoly position on the market. Instead, their proposal is related to protection to such an extent that it does not hinder the natural development and evolution of the gaming industry. Here the notion is that the same idea can be presented and used in different ways (as is the case with the superhero stories that DC Comics and Marvel create) and more attention is paid to the personal attitude and originality that the author will invest (in this case the software engineer, the graphic designer, etc.).


Video games are becoming another popular product, which is developing more dynamically than upgrading the legislation. For now, the gaming industry’s productions can receive protection that neither meets their complexity nor provides the necessary guarantees for their developers, mainly due to their fragmentation and disunity. It is only a matter of time before the legal regime changes, but it must not come after a hasty action.

This material prepared by Preslav Baldzhiev aims to provide more information about video games and Intellectual property. It does not constitute a legal opinion and cannot be interpreted as individual consultation on any concrete facts or circumstances. The advice of a specialist should be obtained for specific questions and situations. For more information on the above-mentioned issues and individual consultations, please contact the team of the law firm of Krasimira Kadieva at 00359 882 308 670 or make an inquiry using the contact form of the website. Since 2017 Preslav Baldzhiev is a law student at Sofia University “St. Kliment Ohridski “, having previously graduated from the High School of mathematics and natural science “Acad. Nicola Obreshkov” in Burgas. In February 2020 he took a course for industrial property representatives at the Patent Office of the Republic of Bulgaria in the field of trademarks, geographical indications, and industrial designs. He is interested in intellectual property, personal data protection, commercial and law on obligations and contracts and also regularly attends conferences, practical courses, seminars, and webinars.

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