The essential legal issues for video game developers and game sellers involve contract law and intellectual property law. These are very much connected since the value of your video game — what it is worth — is almost entirely the value of the intellectual property contained in your video game — the code, the interfaces, the game mechanics and rules, the design, the story, the artwork, etc. If you need a video game attorney, call us here at Revision Legal. Our numbers are 231-714-0100 or 855-473-8474. We have the experience and legal depth of knowledge. We know how the legal pieces “fit together” to accomplish your goals, avoid pitfalls and help you succeed.

Here is a brief overview of video game law. “Contract law” is a broad category that, most importantly, involves you getting paid for your work and your game. For example, a “license agreement” is a form of contract as is a “purchase/sale agreement” as is a “financing/investor contract.” These and other types of agreements must be drafted and/or reviewed carefully. For video game developers, the term “intellectual property” mostly revolves around copyright and trademark laws (but sometimes legal issues involving patent law). Intellectual property law also involves issues about publicity and the rights to use the likenesses of famous people. Violate the intellectual property rights of others, and you will get sued.

On the other hand, you must protect your intellectual property, or your intellectual property will get stolen by competitors and you will own nothing that can be sold or licensed. Trademark law protects the name of your game, your business name and/or production company and other trademarkable features of your game. Copyright law protects the artistic features of your game such as the artwork, music, story, and characters. If your code has unique and patentable architecture — or there is a patentable design aspect to your game — then patent law should be invoked to provide legal protection for your game. As noted, if you are using the intellectual property owned by someone else, you need to have permission — a licensing agreement.

Copyright Protection for Video Games

Copyright is the foundational layer of protection for most video game IP. Under 17 U.S.C. § 102, copyright subsists in original works of authorship fixed in a tangible medium, and the Copyright Act’s categories—literary works, audiovisual works, musical works, and pictorial and graphic works—collectively encompass virtually every protectable element of a video game. The source code is a literary work. The graphics, environments, and character designs are pictorial or audiovisual works. The soundtrack and music compositions are musical works protected separately from the audiovisual content.

Registration with the U.S. Copyright Office is not required for protection, but it is essential for enforcement. A registered copyright owner can sue for infringement in federal court, is eligible for statutory damages of up to $150,000 per work for willful infringement under 17 U.S.C. § 504, and may recover attorney’s fees under 17 U.S.C. § 505. An unregistered copyright owner can only recover actual damages and lost profits—typically far smaller amounts and much harder to prove. For studios releasing commercially significant games, registering multiple components of the game separately (code, music, audiovisual elements) maximizes the enforcement toolkit.

Game mechanics—the underlying rules and systems of play—are generally not copyrightable. Under the idea-expression dichotomy codified in 17 U.S.C. § 102(b), ideas, procedures, processes, and systems are not protected, only the specific expression of those ideas. A competitor can copy your game’s mechanics without infringing your copyright, as long as they create their own original assets. This is why many game developers pursue patent protection for unique mechanical innovations.

Trademark Law and Video Games

Trademark law protects the brand identity of your studio and your game titles. Registering your game title and studio name as trademarks with the USPTO gives you nationwide priority, the right to use the federal registration symbol, and access to statutory remedies for infringement under 15 U.S.C. § 1114. In the video game industry, trademark conflicts arise frequently: similar game titles, comparable studio names, and overlapping character or franchise names all generate disputes.

Character names and game franchise names are also protectable as trademarks. The names of game characters that function as source identifiers for a series of games can be registered in relevant trademark classes, typically Class 41 (entertainment services) and Class 9 (computer game software). This prevents competitors from releasing games that exploit the commercial recognition of your characters or franchise name to confuse consumers.

End User License Agreements and Terms of Service

Every commercial video game needs a well-drafted End User License Agreement (EULA) and Terms of Service (ToS). These documents define the scope of the license granted to players, prohibit unauthorized copying and distribution, restrict reverse engineering, govern user-generated content and virtual economies, limit developer liability, and establish dispute resolution procedures. Courts have upheld EULA provisions in a range of contexts, but poorly drafted agreements—particularly those with unclear scope, ambiguous arbitration clauses, or terms that conflict with consumer protection statutes—are routinely challenged.

Virtual currency, in-game purchases, and virtual property ownership are areas of particular legal complexity. Several states are examining whether loot boxes and certain virtual purchase mechanics constitute gambling under state law, and the regulatory landscape is evolving rapidly. Games that include any monetization features beyond straightforward purchases should be reviewed by counsel familiar with both intellectual property and consumer protection law.

Using Third-Party IP in Video Games

Many games incorporate licensed IP—real sports leagues and players, actual musical artists, branded vehicles, famous buildings, or characters from other media franchises. Each of these requires a valid license. The right of publicity—an individual’s right to control commercial use of their name, image, likeness, and identity—is protected under state law in most jurisdictions, and using a real person’s likeness in a video game without authorization can result in significant liability. The Ninth Circuit’s decision in Keller v. Electronic Arts held that EA’s use of a college athlete’s likeness in its NCAA Football series was not shielded by First Amendment protections, a ruling that fundamentally changed how licensors approach athlete likenesses in games.

Music licensing for games is another common pitfall. A game that incorporates music without obtaining both a synchronization license (from the music publisher) and a master recording license (from the record label) is infringing two separate copyrights. Many developers assume that licensing a song for one use covers all uses; it does not. Synchronization rights, master rights, performance rights, and mechanical rights are distinct and must be cleared separately.

If you are developing or publishing a video game and need legal guidance on IP protection, licensing, EULA drafting, or enforcement, the attorneys at Revision Legal have the experience to help. Call us at 231-714-0100 or 855-473-8474.