At the initiative of Malik Ammich, president of the GDMK association, Me Chomiac de Sas discussed the legal issues associated with protecting a video game throughout its development.
A video game industry professional for over ten years, Mr. Ammich founded the GDMK association, an incubator dedicated to independent video game creators, providing them with expertise, training, and a professional network.
Read the full interview:
Creating a video game: the rise of independent games vs. AAA games
The independent game market has experienced significant growth in recent years, in contrast to AAA video game titles.
In fact, they rely on very different economic and creative models. Independent games have distinguished themselves in recent years through very high profitability due to reduced development costs, innovation and creativity in content and gameplay, and attractive prices for the gaming community.
Conversely, AAA games – a term used to describe major video game productions with average investments exceeding €100 million – have experienced several setbacks that have called their profitability into question: Alan Wake 2, Xdefiant (Ubisoft), Concord (Firewalk Studios/Sony), Prince of Persio: The Lost Crown, etc.
The economic models of some games based on microtransactions and additional content (DLC) have been criticized and even called into question, leading to the closure of the studios that created them.
Independent (indie) games and AAA games have very different economic and creative models, which influences their respective profitability. While indie games have not yet surpassed AAA games in terms of overall revenue, they are becoming increasingly competitive.
Indie video games: Choosing your monetization methods
Independent video game studios face crucial challenges when choosing their revenue models for the exploitation of their games. These choices, whether they concern game engine accessibility, the economic model (free-to-play, loot boxes, NFTs, etc.), or in-game monetization mechanisms, can impact the smooth operation of video games.
Video games: Free-to-play games are dependent on the game engines used by the studios.
When developing a game’s business model, the studio must keep in mind that this choice makes the game more or less vulnerable to industry fluctuations. Indeed, free-to-play games are particularly sensitive to changes in game engine pricing, which can impact the player.
The example of the Unity engine and its pricing policy changes is particularly telling: In September 2023, Unity announced the introduction of a new tax based on the number of game installations, applicable retroactively even to titles already published. This decision provoked an outcry within the independent developer community, with many threatening to abandon the engine in favor of competitors. Faced with this massive backlash, Unity quickly reversed course, removing the controversial Runtime Fee.
This situation highlighted the vulnerability of independent studios to policy changes by development tool providers. Independent developers need to diversify their skills and tools to reduce their dependence on these suppliers, on whom they are still too reliant.
Loot boxes in video games: a false bargain for studios
Emerging in the 2010s, “loot boxes” became a new way to monetize video game content by offering players a paid, randomized bonus: new maps, characters, items, game mechanics, and more.
Widely criticized for disrupting the balance and fairness of the game, loot boxes brought the legal issues associated with gambling into the video game industry, as they incorporate its two main components: the payment of money and a random prize.
Online gaming regulatory authorities in various countries have addressed this issue, with some banning this type of payment in video games. The aim is to protect vulnerable populations (minors, those banned from gambling), and to continue their efforts to combat excessive gambling, fraud, and money laundering. In response, some publishers have adopted a policy of transparency by indicating the probabilities of obtaining certain virtual objects, and countries like Belgium and the Netherlands prohibit these practices.
Video games, in-game items, blockchain and NFTs
From the moment in-game purchases appeared in video games, new content emerged to extend the game’s lifespan and thus maximize its profitability through the “game as a service” model.
Following this trend, blockchain technology has been used to monetize in-game virtual content in the form of “NFTs”—unique digital files that can be traded.
The resale potential of video game assets raises the issue of gambling and, more broadly, the resale of virtual accounts or content. It is precisely to avoid being labeled a casino that video game studios prohibit the resale of this content and retain all intellectual property rights in their game’s terms and conditions, granting players only a simple license to use the content, not ownership.
NFTs are also not a necessity for players, most of whom are satisfied with the classic model, as evidenced by Ubisoft’s attempts in the game “Ghost Recon Breakpoint” and Square Enix’s with “Symbiogenesis” to introduce NFTs, without it meeting with great success from the community.
Video game studios: How to protect your video game
Since the late 1980s, video games have been considered intellectual works (French Supreme Court, Plenary Assembly, March 7, 1986, No. 85-91.465), the diversity of whose content necessitates treating each of its components independently (level design, music, voice acting, storyline, etc.): this distributive regime has eliminated the historical application of software law to video games.
As complex works, video game studios must be particularly vigilant in protecting the intellectual property of all these elements to ensure their smooth operation and prevent any infringement by competitors.
Artificial intelligence (AI) tools and video games
The development and accessibility of generative AI in recent years have raised the question of intellectual property rights for generated content. Jurisdictions have long recognized that copyright cannot be attributed to robots, or by extension to their owners, unless a personal creative process is involved.
The use of AI tools has brought these issues back to the forefront, particularly regarding the potential ownership of generated content, or at least the licensing and exploitation rights stipulated in the terms and conditions.
However, it might be conceivable to establish intellectual property rights for AI-generated content in favor of the user who initiated the request, provided they justify and document the entire creative process, including the correction and modification of the initial, neutral content to arrive at a final product reflecting their personality.
Under these conditions, video game studios using content generated by artificial intelligence tools must anticipate and plan for the fact that the ownership of these elements may be contested and re-exploited by third parties unless they can justify in legal texts the originality and personal involvement of the artists who guided the AI in their creations.
Fangames and in-game creations by players
Fangames are video games inspired by pre-existing works. They generally reuse the design, gameplay, or universe/lore of an existing game. Such games may be permitted but require the explicit authorization of the studio that owns the original game, the source of inspiration. Without this agreement, the game’s content can be considered copyright infringement, a crime punishable by three years imprisonment and a €300,000 fine.
Mods and in-game creations: tolerated or prohibited? Some publishers allow mods—creations made by players using game elements—by providing integrated creation tools or mentioning them in their terms of service.
- Without explicitly authorizing them, other publishers simply tolerate modifications without officially acknowledging them.
- Conversely, some strictly prohibit mods, particularly in competitive multiplayer games, where their use can lead to sanctions such as banning.
Cheat software: a legal gray area? According to case law, cheat programs do not constitute copyright infringement when they do not directly alter the software itself, but only the temporary data stored in RAM. This decision is based on a strict interpretation of the software’s copyright, without excluding other forms of legal action.
Before developing a fan game, a mod, or a tool related to a game, it is best to familiarize yourself with the publisher’s policy to avoid any legal risks.
