A Brief History of Video Game IP Wars
The King of the Kongs
Universal Studios sued Nintendo in the early 80s over similarities between Universal’s King Kong character and Nintendo’s Donkey Kong character. Universal argued King Kong was copyrighted and Donkey Kong was too similar. Nintendo hired attorney John Kirby who discovered Universal had previously argued in court that King Kong was actually in the public domain. With this precedence, the judge ruled in Nintendo’s favor and charged Universal with legal fees for what was deemed a frivolous lawsuit. This set an early precedent for defending video game characters against IP claims.
Bypassing the 10NES Chip
In the mid 80s, Nintendo established strict licensing terms for third party developers creating games for their new NES console. One requirement was that all games needed to utilize Nintendo’s authentication chip called the 10NES to verify the game was officially licensed. Atari Games tried unsuccessfully to reverse engineer the 10NES chip to bypass Nintendo’s restrictions. They eventually illegally obtained the source code for the 10NES from the Copyright Office and used it to create their own compatible “Rabbit” chip. Atari then released several popular games under their own Tengen label. Nintendo counter sued Atari for copyright infringement over stealing the 10NES source code. This established publishers’ rights over third party developers.
Portraying a Dictator
In 2012, the video game Call of Duty: Black Ops II included fictional missions set during the 1980s in Panama depicting then dictator Manuel Noriega as a traitorous ally. Noriega sued the game’s developer Treyarch, claiming the depiction misappropriated his likeness and damaged his reputation. However, the U.S. court ruled the game was protected as a work of fiction and fell under freedom of speech. This set an initial precedent for including real persons in works of historical fiction without their direct consent.
Defining Developer and Publisher Roles
Traditionally, video game developers focus on creating the actual game content, programming, art, design and engineering while publishers take on roles of legally releasing, selling, marketing and distributing the finished product. For big budget AAA titles, developers often work in close coordination with publishers from early in production. Publishers help arrange marketing partnerships, preview events, press coverage and advertising campaigns to build excitement around a game’s release. This distinguishes the separate but aligned roles in the industry.
The Risks of Independent Development
While the rise of digital storefronts has enabled many independent studios to self publish games, it remains a risky business model. Indie developers receive less funding and support than those partnered with major publishers. Publishers taking a large percentage of sales leaves indies with limited marketing budgets to reach mass audiences. Without at least a modest commercial success, most independent studios fail within just a few months after releasing their first game title. The challenges of self sustainable development remain high.
Lessons for Success in Video Game IP
From the early cases, some best practices can be distilled. Developers must thoroughly fact check any potentially litigious use of real persons, locations, characters or other copyrighted/trademarked IP. Close coordination with publishers helps align messaging and manage consumer understanding. Publishers provide legal expertise and funding to properly defend uses of IP if needed. For independent studios, it’s also important to understand business realities like costs versus likely revenues to avoid emotionally driven decisions withlong term consequences. Proper due diligence is key.
The Continued Evolution of Video Game IP Wars
Recent high profile lawsuits show the continued evolution of legal disputes in areas like platform ownership, developer-publisher revenue shares, and new technologies. Epic Games’ ongoing case against Apple highlights debates around open platforms and controls over payments. Emerging concepts like play-to-earn economies using blockchain and NFTs are already spawning legal questions analogous to early console platform standoffs. As the cultural and economic significance of games widens with innovations in virtual reality and the metaverse, related intellectual property issues will remain prominent and likely intensify industry arguments for many years to come. Proper legal precedents need time to catch up to rapid technological changes.