What You Mean When You Say "IP" Part II

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.

In the first post, we started to untangle the area of law that is "IP" or Intellectual Property. All we did there was stratch the surface. Here, let's get some important vocabulary out of the way.

First and foremost, let's address my biggest personal pet peeve: understanding the diferent types of IP. This is also, actually, a mistake that I frequently see tech writers make, so if you can get these straight, you will be ahead of the game.

1) Patents - Patents are designed to protect new inventions. They can protect new designs, process, or techologies. Importantly, patents only protect finished products, not ideas. Also, patents can only protect tangible things, they can not be used to protect abstract ideas, natural phenomena, and the like.

2) Trademarks - Trademarks are increasingly important in the gaming arena. A trademark is actually a "source identifier." For example, if you see a siilohette of an apple with a bite taken out, you know it is a legitimate Apple product. A trademark can be almost anything, including sounds, colors, and possibly even smells. What a trademark cannot be, however, is a process.

3) Copyright - Copyrights are used to protect works of authoriship. They show ownership, similar to patetnts, but instead of protecting inventions, they protect creative works. Copyright is useful for protecting things that otherwise would be very easy to steal, such as music, written works, and photographs. Copyright is generally accepted as the most confusing branch of IP. It also has the most trouble adapting to new technologies, and thus is frequently updated by the legislature.

4) Trade Secrets- Trade Secrets are the forgotten half-brother of IP, but are still an integral part. Also, trade secrets provide for some awesome philosophical quandries, but still are hard, black letter law. A trade secret can be anything, so long as 1) the holder takes steps to preserve it as a secret and 2) it derives most of its value from the fact that it is a secret. Obviosuly, trade secrets are never formally registered.

And there you have it. If you can keep these four types of IP straight, you will be well on your way. Now, when you here about a smart phone patent dispute, you will understand that it involves something to do with how the phones actually work. When someone says a game cannot be published under a certain name because it is trademarked, you will know that this is about the name only, not any of the underlying mechanics.

To keep this post from getting too long, I will sign off for now. But expect the next post to be a series of case studies to help us get a better handle on the different types of IP and how we use them. Also, feel free to ask questions in the comments section.

What You Mean When You Say "IP"

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 Blezinski, 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. Blezinski often does, that all genius flows 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...).