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The video game industry has been one of the fastest-growing industries in the past decade. An increasingly diverse consumer base enjoys video games, and the industry is supported by unrivalled innovation and creativity. It is not surprising that piracy threatens such a lucrative and growing industry, causing losses of hundreds of millions of dollars each year in sales of counterfeit products. It takes significant time and money to bring a video game to market, and each one has a short period in the limelight before replacement by the next exciting game. As a game developer, it is important to know what intellectual property rights you have in your video games and how you can put protection mechanisms in place. Your game is likely a complex product, and you should consider the different ways you can protect each component to exploit the full commerciality of your video game.


Copyright is a form of intellectual property protection that applies automatically from the time of creation. As a content creator, you have copyright in the material expression of your video game as soon as you develop it. Copyright gives you the exclusive right to deal with your creation in particular ways. This includes reproducing it, adapting it and showing it to the public. You can also sell or licence these rights to others and prevent others from dealing with your creation without your express consent.

Specifically, the underlying program or source code of your video game has copyright protection, in the same way as any other piece of writing, such as a book or manuscript. It may be considered a ‘literary work’, a form of artistic work capable of copyright protection under national copyright law. 

The graphics in your game may also be the subject of protection if they are an “artistic work”. This may include: 

  • the artwork in your game;
  • the images of the characters;
  • the script; and 
  • the sound effects. 

If you decide to licence the rights to your game or give permission for someone else to use your work, you still retain certain rights associated with how these third parties use your creation. For example, you have the right to receive credit for your work, and those third parties may not use or reproduce your creation in a way that harms your reputation. 

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Trade Marks

To differentiate your video game from others in the ever-increasing popular market, it is likely you have developed a unique game name or graphic. Each aspect of your branding may be capable of trade mark protection. A trade mark registration grants you an exclusive right to use your brand concerning particular goods and services. If your work involves regularly creating new video games, developing a brand strategy to make your games readily identifiable to consumers is worthwhile. 

A trade mark can consist of words, numbers, symbols or images or a combination of any of these. Unlike copyright, which exists as soon as the components of your game come into existence, we recommend that you apply to register your trade mark in each country in which you seek protection. The registration process can be tricky and time-consuming, so you should enlist the help of a trade mark lawyer for assistance with preparing your application.

Once you have a registered trade mark, you can use the symbol ®. This can act as an immediate deterrent to competitors and can also be incredibly attractive to investors. Registration prevents others from using your trade mark, or something very similar, in connection with their games. Ideally, your customers recognise your trade mark and associate this with an amazing gaming experience. 

For example, the name of the popular video game ‘Grand Theft Auto’ is protected by a registered trade mark in Australia. Other video games cannot use this name or a similar name. 

Naturally, video games are also likely to have global reach. Even if you live in Australia, you have probably thought about how consumers worldwide will interact with your game. In the same way, you should start thinking about protecting the intellectual property in your game internationally. 

Key Takeaways

As a video game creator, you are the owner of valuable intellectual property. Copyright is an automatic right that exists as soon as you create your work. We also recommend applying for trade mark registration to gain an exclusive right to your trade mark. You should seek guidance from an intellectual property lawyer for help protecting the valuable intellectual property in your game.

If you need help understanding intellectual property, our experienced IP lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.

Frequently Asked Questions

What is copyright?

Copyright is an automatic intellectual property right in Australia. You are automatically granted copyright over your unique expression of creative work. 

Is my video game considered an artistic work?

Your video game may consist of many different artistic components, such as graphics, images and sounds. These elements may be artistic works capable of copyright protection. 


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