As an intellectual property lawyer, I am not surprised, ever, when people do not know the differences between the three types of law that normally fall under the umbrella of intellectual property: copyrights, trademarks, and patents. First, I will give a little tidbit about each type of intellectual property, and then I will talk more about the burning question on everyone's mind: where is Sanjaya now? I mean, what is the difference between a copyright and a patent, and what do they mean for the video game industry? It took years for me to distill the information contained in this article, so feel lucky that you did not have to suffer through three years of Socratic goodness to arrive at the level of expertise this article will confer.

Trademark is defined as "a name, symbol, or other device identifying a product, officially registered and legally restricted to the use of the owner or manufacturer."¯ (Thank you answers.com; I knew I could count on you!) We all see trademarks every day, like Xbox 360, Nintendo, Metal Gear: just name any company, product, or service, and it is likely protected by trademark. I could get all complicated on your ass, but this is neither the time, nor the place.

Copyright is "the legal right granted to an author, composer, playwright, publisher, or distributor to exclusive publication, production, sale, or distribution of a literary, musical, dramatic, or artistic work." (Answers.com! Answers.com!) Basically, once you take any form of artistic expression and fix it in a "tangible medium,"¯ you are granted copyright protection for your expression (assuming you take the steps the Man tells you to). The two biggies here are "expression"¯ and "tangible medium."¯ First, tangible medium can be anything tangible, meaning anything with physical properties, so writing on paper, painting on canvas, and recording music on your hard drive would all be yes. This premise has even been pushed as far as calling copies of files stored in RAM as being "fixed in tangible mediumā" (though there is controversy about this). The second part is the expression. Expression refers to the literal words themselves, or the actual picture, or the code itself. Yes folks, computer code is considered an expression (my arrangement of 1's and 0's is purdy, ain't it?). And, for computer products, copyright protection even extends to the "look and feel"¯ of a program. What this means is that Nintendo is granted copyright protection for its code, that when run, produces Super Mario Bros.. This also means that if I wrote my own new code for a game called Super Mario Sistas, and all I changed was Mario's red outfit to a more dykish camo and made him black, but otherwise copied everything else, I would probably be liable for copyright infringement. However, this does not mean that Nintendo has a copyright on the *idea* for a game where a hero must defeat a monster to save the princess. It should be noted that copyright protection lasts a really long time; how long exactly is hard to say because the duration keeps increasing (Thanks Disney!), but for now, it is around 95 years. Also, if two expressions are similar but the authors know nothing of the similar work's existence, then copyright protection can be granted to both. Again, complexity, that evil beast that you need a forty-person raid to even consider toppling, will not be engaged (and trust me, complexity doesn't drop anything even close to epic gear).

Patents are "a grant made by a government that confers upon the creator of an invention the sole right to make, use, and sell that invention for a set period of time." (Guess where I got this one!). The set period of time right now is 20 years after the patent application is filed. Patents are granted to those who invent something, and are readily available for ideas, as long as there is a working embodiment in existence (no patenting a time machine unless you can build it). For example, a patent was issued for Eternal Darkness's'ss' fear meter: a novel concept in gaming up to that point to literally have the functions of the system and television set hooked to the game (recall the TV shutting off, right when you were getting wailed on). Patents may be issued for any invention that is novel, non-obvious, and useful. Useful is more-or-less a throw away since any use can be cited, even amusement (think getting a patent on a big hot dog hat and saying that it is useful as means for having fun: uh, good enough for the patent office!). Novel means that you thought of something new. Non-obvious requires that even if your idea is new, it isn't totally obvious that a combination of already patented things together would produce your invention (say a patent was issued on a new shoe, but that patent only discloses shoe laces; you couldn't patent the shoe with Velcro). Patents may be had for even the smallest steps in innovation (though their protection is limited), so as you can imagine, if every software engineer patented every new step they took (think writing a program that has not been written before), well, software would not progress quite so fast...

All three represent so-called "intangible"¯ assets, which, as you might imagine are valuable commodities that have no definite physical embodiment (well...sorta). It is also worth mentioning that franchise IP is a different beast (usually a combination of copyrights and trademarks) from the same genus, and refers generally to all of the ideas behind a franchise. Think Guitar Hero franchise, and Activision buying "it"¯ for millions.

So, enough with all of this mumbo-jumbo (and complicating parentheticals), what is the skinny and sweet? Copyrights protect expression; patents protect ideas. What is interesting though is that video games occupy a special niche that theoretically, can be afforded solid protection from both areas of law. They offer different degrees of protection, last different lengths, and can co-exist quite peacefully. Ideally, from a business standpoint, and I am not just saying this because I am a lawyer, a game company would be wise to get both types of protection if possible. And before everyone leaves me nasty comments about how gaming patents are stupid and ruin everything, remember that a patent is only as evil as its holder. Some get patents for defensive purposes, holding it to protect themselves if a big dog comes a barkin'; some get patents to make sure others do not steal the idea, and attack anyone that might try; and some get patents just 'cuz. Regardless, as the video game industry becomes bigger and bigger, patent protection will be increasingly utilized as a tool of business. However, for now, copyright protection is the BFG.

Joe Gabaeff is an associate at Kokka and Backus, PC, an intellectual property firm located in Palo Alto, CA. Mr. Gabaeff is a licensed attorney in the State of California, and a member of the American Bar Association and the International Game Developers Association. He is also the Editor-in-chief and founder of Bloggey Kong, a blog dedicated to legal developments surrounding interactive media. Opinions expressed in this column are Mr. Gabaeff's own (but even he doesnā€™t believe all of this stuff). Reach him at: jgabaeff@kokkalaw.com.


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