The video game industry has emerged as an economic engine of great relevance in Spain, the fourth largest market in the EU, and especially in the city of Barcelona, which has established itself as one of the most important hubs in Europe in this field; with more than 200 companies located in the city and representing 50% of the sector’s revenues in Spain (more than 2,300 million euros in 2023).
This success is not a coincidence; It is the result of an ecosystem that fosters creativity, innovation, and investment, which has also been able to generate sustained annual growth in investments of more than double digits over the last decade.
These are somewhat dizzying figures, and we should not forget the complexity of these intangible assets from the point of view of their legal approach, in terms of protection and exploitation as works of intellectual property; issues that, if not addressed in a rigorous way from the very conception of the project, can seriously compromise the peaceful exploitation and subsequent monetization.
Broadly speaking, the above complexity derives from two specific characteristics of the concept of video games:
- An audiovisual base, made up of various contributions from authors and formats that derive from images, scripts, videos, music, and other creative effects.
- A software, which technically articulates all these elements and facilitates the interaction of users (players) with the elements of the video game.
This accumulation of contributions of different nature also raises a wide variety of legal responses to the protection of the exclusive right of the owner of the video game, and that will depend on the legal categorization of each of the elements, with an unclear international harmonization.
In this sense, there are countries that choose to give them a treatment similar to that of any software, under the umbrella of copyright, there are those that assimilate them to audiovisual works; in the same area of protection as above, and there are those that opt for a distributive protection – as in the case of the EU environment – which entails a segregation of all these elements that make up the video game in order to assign each of them a treatment whether in the field of copyright, designs, trademarks or patents.
Our Intellectual Property Law (RDL-TRLPI 1/1996) does not provide a legal definition for video games, because it is based on an open concept of work in article 10 and which is followed by a non-exhaustive list of examples of works: (…) all original literary, artistic or scientific creations expressed by any means or support, tangible or intangible, currently known or to be invented in the future (…).
Another element of variability in this distributive treatment typical of our legal regime is the different duration of exclusive rights, depending on the type of protection that may be included.
Thus, copyright, to protect audiovisual aspects of content or software, has a very long validity that covers the life of the creator and the 70 years after his death, while industrial designs, which can also cover certain audiovisual elements, user interfaces or game merchandising have a maximum duration of 25 years. Finally, trademarks, that will be associated with the name of the game or the manufacturer’s corporate image will be extended for up to 10 years and can be renewed indefinitely for identical periods, and patents that would fit to protect specific programming solutions, with technical effects, have a maximum validity of 20 years.
In terms of legal ownership of video games, there are also important challenges because they are collaborative works, with a strong iterative nature of the entire creative process that involves the discontinuous participation of many authors, from all the areas mentioned, who create their own content or programming and can also use third parties who, for its part, it will be subject to its respective exclusive rights of the owner.
This, let us say, creative volatility in the authorship of the video game can cause an incorrect assignment of rights to the subjects involved in the creation of the video game, if not an infringement of the rights of third parties due to the fact of not having obtained the corresponding licenses. All of this will end up having a serious impact on the interests of the entities or companies that fund the project; publishers and distributors, who in their role as publishers of the video game end up assigning to themselves the final ownership of the exploitation rights.
The real impact of the path that this environment will have is currently a complete unknown, due to the enormous technological acceleration that is inherent to the sector, with the amplification of E-SPORTS platforms, NFTs, or the disruption of AI. In short, a true melting pot of all the arts and creative forms, known and to be discovered.
We just must pay a little attention to the interest that the big brands in non-digital sectors are showing in co-branding, sponsorship or product placement strategies, and an example for the curious: the League of Legends World Cup trophy in 2019
Game over – Play again
Joan Salvà.
Managing Partner.
Lawyer. Patent and TM Attorney.
