When developing a game, there are a number of small details that you put into it, including the names of cards, powers, weapons, and other items within the game world. Whether it is a video game, mobile app, or tabletop game, there is a fear that using names that exist in other games could lead to legal liability.
I was recently asked this question by a reader, and I thought it would be a good idea to discuss how US copyright and trademark law deal with the issue of names and small phrases within games.
One large concern for game designers is the potential for copyright infringement with in-game artwork and text. This is because a lot of the creative materials inside a game are protected under US copyright law. For instance, character dialogue or the text of your game rules are likely to be protected – giving you the exclusive right to duplicate them.
There are limitations on what is protectable. One type of unprotectable expression is names, short phrases and expressions, no matter how creative. The US Copyright Office provides a list of these:
- Names of products or services
- Names of businesses, organizations, or groups (including the names of
- performing groups)
- Pseudonyms of individuals (including pen or stage names)
- Titles of works
- Catchwords, catchphrases, mottoes, slogans, or short advertising expressions
- Listings of ingredients, as in recipes, labels, or formulas. When a recipe or formula is accompanied by an explanation or directions, the text directions may be copyrightable, but the recipe or formula itself remains uncopyrightable.
In the case of the small details within a game, there is very likely no protection for those under copyright law. The reasoning is that copyright only protects works that meet a minimum amount of authorship. These short phrases and names do not meet that minimum standard. This is a good thing – copyright protection lasts for a LONG time. Giving a monopoly to a company over using the word “Fireball” on a card in their game seems a bit ludicrous.
Another limitation on copyright law that comes into play here is the concept of Scène à faire. Essentially, this doctrine makes certain elements of different genres ineligible for copyright protection. In a fantasy story, the inclusion of knights and dragons are fairly common in that genre. Therefore, including those in your story wouldn’t give you exclusive rights to use dragons in a fantasy story. The specific details of that dragon and its story, when combined together, would generally be protected (assuming that they are original creative expressions).
The analysis doesn’t end at copyright. Trademark must be considered before using any kind of name, term, or slogan in a game.
A trademark is a name, slogan, logo, or other thing that identifies the source of goods. Ownership of a trademark comes from use of that mark in commerce, and we make the rights exclusive in a certain class of goods or services to protect consumers. For example, if you have the name Coca Cola on a drink, consumers can trust that the drink came from the Coca Cola Bottling Company. This is the reason for trademark protection.
However, you need to be using a trademark in a trademark-like manner. This means that the mark must be actively identifying the source of goods, and not a “merely ornamental” use.
The game’s trademark is going to be the name of the game, the tagline, or the logo. Words and artwork inside the game don’t generally serve as trademarks.According to the USPTO, “subject matter that is merely a decorative feature does not identify and distinguish the applicant’s goods and, thus, does not function as a trademark.” The trademark office uses the example of a logo/name on the tag of a t-shirt, versus the design of the t-shirt itself. The thing on the tag is what’s identifying your brand and the source of the goods, not the shirt design (that’s a copyright issue).
Similarly, if you have a word like Fireball on a card in your game, you’re not using it to mark your goods to the public. The game’s trademark is going to be the name of the game, the tagline, or the logo. Words and artwork inside the game don’t generally serve as trademarks.
On the flipside, in order to infringe on someone else’s trademark, you generally need to be using the infringing mark in a trademark manner. If you are using the mark as the name of your card, it is most likely not going to be a source identifier. In most cases, the use of someone else’s trademark as the name of a specific card is not going to trigger a trademark infringement claim.
Warning about specific legal issues
As always, these are general intellectual property concepts that don’t always apply to every specific legal situation. In each case, the facts need to be taken into account in order to do a full analysis.
Some trademarks may not be so black and white. Depending on the distinctiveness or strength of the mark, using the name within your game COULD be an infringement. It’s difficult to say. The trademark owner may have a valid argument about blurring or tarnishing their mark. There may be the impression that your product is somehow sponsored by or approved by the trademark holder.
It’s impossible to say without a full analysis of the situation. For assistance with this, why not contact a game lawyer?