You might have spent entire evenings, if not days, playing as your favourite videogame character, looking forward to moving to the game’s next level and conquering new worlds. While doing all this, have you ever wondered how intellectual property (IP) law protects fictional characters or what might be next for interactive entertainment and IP law, as we enter the age of the (new) metaverse and generative artificial intelligence (AI)?
Trade marks, designs and copyright for fictional characters
A fictional character may be protected in different ways by a variety of IP rights. If we take trade marks as a starting point, it may come as little surprise that the names of some of the best-known videogame characters are registered with the European Union Intellectual Property Office (EUIPO): for example, LARA CROFT, SUPER MARIO, PAC-MAN, PIKACHU and THE LEGEND OF ZELDA are all EU trade marks.
The appearance of a videogame and its characters is also protectable through design rights. Indeed, it is possible to protect screen displays and icons, graphic user interfaces and other kinds of visible elements of a videogame.
Finally, a fictional character may be protected by copyright. Courts in the USA have for example considered not only iconic detective Sherlock Holmes but also Batman’s Batmobile protectable this way. In Germany protection has been granted to Astrid Lindgren’s Pippi Longstocking, while Italian courts have found Mexican legend Zorro to be protectable and UK courts have held Del Boy from BBC series Only Fools and Horses to be an original work.
And what about gamers?
So, IP rights may protect fictional characters – including those of videogames – but can the way in which one plays a videogame be protected too? This is not an easy answer to provide. Generally speaking, IP does not protect styles. Case law also tells us that sports events like football matches or even a bullfight cannot be protected by copyright: given that they are subject to the rules of the sport/game at issue, they do not allow players to make free and creative choices, which are required to claim protection under this IP right.
Nevertheless, signature moves may be protectable in principle. For example, in the European Union (EU) it is possible to register motion marks too, that is trade marks consisting of, or extending to, a movement or a change in the position of the elements of the mark. To this end, however, it is necessary that the movement at issue is recognized by consumers as an indicator of commercial origin. Among the trade marks registered for signature moves, we find several athletes and sportspeople, James Bond's famous gun barrel sequence, and food and hospitality entrepreneur Salt Bae and his famous salt-sprinkling sequence.
Metaverse and AI avatars
The advent of new technologies – including augmented reality, cryptocurrencies, blockchain, non-fungible tokens (NFTs), and AI – is set to prompt the transition from the already interactive dimension of Web 2.0 to the even better integrated and more immersive reality of Web 3.0 (if not already Web 4.0!). In all this, both new opportunities and challenges lie ahead of us, including insofar as interactive entertainment is concerned.
Some luxury and fashion brands have already entered the world of interactive entertainment and started exploring the metaverse. While brands have been pondering the potential of Web 3.0, extending the existing IP protection to these new realities requires some careful thinking too: for example, in the EU, to be protected in relation to virtual goods, it is necessary that a trade mark covers Class 9 of the Nice Classification and does so with the necessary clarity and precision.
In all this, the successful enforcement of IP rights on Web 3.0 and the metaverse will also remain key. Recently, for example, Hermès won its lawsuit in the USA concerning the unauthorized creation and sale of NFTs reproducing its iconic Birkin bag and known as “Metabirkins”.
Web 3.0 also comes with new questions of liability. In this sense, some influencers have already taken advantage of AI-based technologies and created avatars of themselves to interact with fans on their behalf: but who will bear responsibility in the event that that avatar infringes someone else’s’ rights, including IP rights?
One thing is certain all this: as IP rights have played a key role in protecting entertainment products and services in the past, they will continue doing so in the future too. After all, it’s in IP’s DNA to follow, react to, and govern technological advancements for the benefit of rightholders, users, and society alike.