Beyond pixels: on the threshold of intellectual property illegality in the gaming industry

31 dez 1969

Transcending generational and cultural boundaries, the realm of gaming stands as the premier force in the entertainment industry. Now more than ever, success is attributed to technological advancements and the desires of the audience, who seeks stress-relieving, playful, and recreational experiences, aiming to enhance their quality of life and personal happiness.

The success and expansion of this universe are evident, exemplified by recent adaptations for screens, such as HBO Max’s take on The Last of Us game franchise and the metaverse crafted by Fortnite, stretching beyond the confines of consoles. According to Valor Econômico, the sector is projected to reach a revenue milestone of $187.7 billion this year. In Brazil alone, the industry has generated enough revenue to foster a 169% growth in the number of game developers from 2018 to 2022, highlighting market growth even on a national scale.

However, as companies strive to ride this driving force, much debate surrounds the fine line between inspiration and intellectual property infringement linked to game development. Such concerns are present in various creation processes, ranging from physics engines and builds to cutscenes and core mechanics, raising questions about the originality of certain franchises.

Today, games forge identities. Connections. Engaging narratives intertwined with the course of reality and fantasy, in three-dimensional universes and virtual reality, ushering gamers into a state of ecstasy, curiosity, and involvement that shapes how they interact with technology. In response, developers realized that adapting to the new gaming era necessitated creating brand distinction, characters, storylines, and even patenting or registering software and consoles to offer a unique experience to users. In essence, commercial value is intrinsically linked to distinctive elements, making the safeguarding of intellectual property a cornerstone that cannot be overlooked in this domain.

Within this scenario, cases of intellectual property infringement are commonplace, involving unauthorized use of protected creative and inventive elements without the owner’s permission.

Some conflicts have been taken to court to secure these rights, such as the controversial lawsuit filed by actress Lindsay Lohan against Rockstar, accusing them of improperly using her image in the video game Grand Theft Auto V. The actress claimed that the image of a bikini-clad woman holding a cellphone, which appears in a game loading screen, and the character Lacey Jonas, evading paparazzi, were based on her physical features. However, a New York court ruled that the actress couldn’t complain, as it concluded that the images were generic representations of the style, look and persona of a modern, beach-going young woman, bearing no resemblance to the actress, closing the case.

In another clash, Blizzard Entertainment, the developer of World of Warcraft, sued Bossland for unfair competition, trademark infringement, and copyright infringement. The heart of the allegations centered on Bossland selling cheating bots, which led players to breach Blizzard’s terms of use and license, enabling users to cheat in the game, like seeing through walls or letting bots control their characters. A California court ruled in favor of Blizzard, awarding the company $8.6 million in damages.

In a legal decision involving another gaming industry giant, Nintendo succeeded in preventing MariCar, Inc. from renting out costumes of iconic Nintendo characters for kart races, alluding to the classic racing game Mario Kart. The Japanese supreme court deemed that MariCar hadn’t obtained permission to provide Nintendo character costumes to customers and use images of these costumes in promotional materials, constituting a violation of Japan’s Unfair Competition Prevention Act, and fined them $70,000. Additionally, Nintendo stated that it would “continue to take necessary measures against damage to its brand and intellectual properties.”

The damages caused by intellectual property violations in the gaming world are well-documented, potentially leading to not only financial losses but also reputation damage for parties involved. Thus, well-founded legislation and its interpretation are of utmost importance to ensure that rights holders are safeguarded in potential disputes, given the significance of this niche.

However, the legal complexities surrounding the protection of intellectual property in the electronic gaming industry will continue to face new challenges in the near future. The swift evolution of technologies and distribution methods adds another layer of complexity to these cases, as there is no established consensus on the newest spaces occupied by games, such as the metaverse and NFTs. Unauthorized use of registered trademarks, unauthorized creation and sharing of copyrighted content, and the interconnection of elements from various intellectual properties are just a few challenges that emerge in this landscape. Moreover, the fluid and collaborative nature of the metaverse further complicates the enforcement and protection of rights, necessitating innovative solutions to protect creators and intellectual property holders amid this ever-changing digital landscape.


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