Branding Protection in Game Audio
July 22, 2014, Casual Connect Conference, San Francisco—Mona Ibrahim from the Interactive Entertainment Law Group described the various types and levels of protection for musical intellectual property. Some of the considerations for protection could provide significant value to the IP owner.
Types of musical content that qualifies for protection include music scores, jingles, theme songs, and even notification tones. Musical content for “prizes”, completion music, and audio logos are also areas for consideration. Some of the content is trying to create a mood or differentiate parts of the game, so must be considered for protection.
The levels of protection available for the various musical pieces vary with applicable laws. Protection is available as a trademark under the changes in the state, federal, and international laws for copyrights that have passed in the last two decades. The normal standard for going to court is unfair competition, but the application varies with common law and with jurisdiction.
Under Federal regulations, a copyright requires some threshold of creativity and must result in a physical copy. In addition, the piece must be reproducible. A trademark is in effect as soon as it is used in commerce, so one key to protection is to register a trademark as early as possible.
Copyrights are automatic upon the existence of the asset, whereas a trademark must be registered. Registration is fairly easy, solves many problems, and only const about $35. A simple on-line form can establish a trademark. One caveat is that the composition and performance may need separate trademarks or copyrights. A copyright is limited to the life of the author plus 90 years, or 120 years, which ever is longer. The problem with a copyright is that another piece with independent origin can be virtually identical and not infringe.
A trademark, on the other hand, has no set term, but can remain for as long as the owner exists. Trademark infringement allows for triple damages and other legal remedies. After 5 years of registration, a trademark is eligible for a certificate of incontestability, a legal statement that the trademark cannot be contested or challenged. The problem with trademarks is that they are very expensive, so are limited to industry.
At times, the protections from both copyrights and trademarks change. The protections can overlap, which complicates both challenges and defense. In general, it is best to go for maximum protection as early as possible, so have your lawyer do comprehensive filings.
