Mobile Game Developer Legal Issues

The gaming industry is one of the largest entertainment sectors in the world, generating hundreds of billions of dollars annually. This massive industry has become a spotlight for legal battles ever since the first mainstream Nintendo console, Atari, was released in 1985. Game developing is not like many other industries that only need to worry about one aspect of intellectual property law. Instead, legal issues for trademarks, copyrights, and patents all arise.

Types of Gaming

Games are typically created in three different platforms: mobile devices, consoles, and PCs. During its rise, the gaming world largely focused on console based games. Since then, the mobile device gaming industry has boomed. For a nominal fee, both the Apple App store and Android Google Play can place your app in the market for others to download. While the new marketplace makes it easier for developers to get their work out, it also opens the door to possible infringements of copyright, trademark, and patent, so it is crucial for developers to ensure that there are no potential infringement issues with their apps before the apps go on the market.

Copyright Your Creative Storyline

Many developers have been able to capitalize off of a storyline or character that is a product from their app — for instance, the sale of plush toys from the game “Angry Birds.” Once an app is created, it possesses immediate copyright protections in any form of that creation. If a game developer creates a storyline that is able to produce any recognizable character, song, story, art, or graphical user interface design, then it is copyright protected under 17 U.S.C. § 102(a). By actively creating a scope of copyright protection with a mobile game attorney, the developers will be able to protect their products and ideas from potential character dilution and knockoffs.

Trademark Your Brand

A trademark protects the brand identity of a game — its name, logo, and any other source identifiers that distinguish it from competing products. For mobile developers, trademark registration matters from day one. If you launch a game under an unregistered name and another developer registers a similar mark, you may be forced to rebrand after you’ve already built a user base and invested in marketing.

Trademark squatting is a documented problem in the gaming industry. In one well-known incident, a small developer was forced to defend its “Candy Crush”-style game name against a larger company that had registered broad trademark rights in common gaming terms. Federal registration with the USPTO provides nationwide priority from the filing date and makes clear that the mark is taken — deterring competitors from adopting confusingly similar names.

Patent Issues in Mobile Game Development

Patents are less frequently used in mobile game development than copyrights or trademarks, but they are not irrelevant. Game mechanics, novel user interaction methods, and underlying software processes can be patentable subject matter. The key hurdle is the patent eligibility standard under 35 U.S.C. § 101 as interpreted by the Supreme Court in Alice Corp. v. CLS Bank International, 573 U.S. 208 (2014). Abstract ideas — including many software-implemented processes — are not patentable unless they involve an “inventive concept” that transforms the abstract idea into a patent-eligible application.

Non-practicing entities (NPEs), commonly called “patent trolls,” are a significant threat to mobile game developers. These entities acquire broad software patents and assert them against developers with active games in the market, seeking licensing fees that may be less expensive than litigation but collectively represent a significant tax on the industry. A mobile game attorney can evaluate demand letters from NPEs, determine whether the asserted patent has merit, and advise on the most cost-effective response — which may include challenging the patent’s validity through an inter partes review (IPR) proceeding at the USPTO.

End User License Agreements and Terms of Service

Every mobile game that is distributed publicly needs a well-drafted End User License Agreement (EULA) and terms of service. These agreements accomplish several critical legal objectives:

• IP ownership: The EULA makes clear that the developer owns all game content, including characters, storylines, music, and art, and grants users only a limited license to play the game. This is essential for preventing users from claiming rights in characters they help develop through gameplay or modifications.
• Virtual currency and in-app purchases: Agreements that govern the purchase and use of virtual currency within a game are a significant source of litigation. A well-drafted EULA specifies that virtual currency has no real-world value, cannot be exchanged for real money, and is not a property right — limiting the developer’s liability when users spend money on items that later become unavailable due to game updates or server shutdowns.
• User-generated content: Many games allow users to create content — custom levels, skins, or characters. The EULA should grant the developer a broad license to use, reproduce, and distribute user-generated content and should address ownership disputes before they arise.
• Limitation of liability: EULAs should cap the developer’s liability for claims arising from game failures, data loss, or unauthorized account access.

App Store Agreements and Platform Compliance

Distributing a mobile game on the Apple App Store or Google Play requires compliance with each platform’s developer agreement and content guidelines. Apple’s App Store Review Guidelines and Google’s Developer Program Policies both impose substantive requirements on game content, advertising practices, in-app purchase mechanics, and data collection disclosures. Violations of these policies can result in rejection of a new app, removal of an existing app from the store, or suspension of the developer account — outcomes that can be commercially devastating.

Loot boxes and randomized in-app purchase mechanics have attracted regulatory scrutiny in the United States and abroad. Several states have proposed legislation classifying loot box mechanics as gambling. Developers offering randomized rewards for real-money purchase should review the legal landscape in their target markets before launch.

COPPA and Children’s Privacy in Mobile Games

The Children’s Online Privacy Protection Act (COPPA), 15 U.S.C. §§ 6501-6506, imposes strict requirements on online services, including mobile games, that are directed to children under 13 or that have actual knowledge they are collecting personal information from children. COPPA requires verifiable parental consent before collecting, using, or disclosing personal information from children. Mobile game developers whose target audience includes children under 13 must build COPPA compliance into their data practices, privacy policies, and app store categorization. The FTC has brought significant enforcement actions against game developers and platforms for COPPA violations, with penalties reaching into the millions.

Contact Revision Legal’s Mobile Game Attorneys

Revision Legal’s intellectual property and internet lawyers advise mobile game developers on trademark and copyright protection, EULA and terms of service drafting, app store compliance, patent issues, and privacy law compliance. Whether you are a solo indie developer or a studio with a portfolio of titles, we can help you protect what you’ve built. Contact us at 855-473-8474 or complete the contact form on this page.