Startup and video game law, from a Canadian and U.S. perspective
Real World Items in Games
When creating realistic video games, developers often desire to render real-world items digitally but neglect considering rights held in these items. A failure to investigate rights held in real-world items is not limited to smaller studios as major developers (ex. Activision) have been sued for using real-world items in their games, such as AM General’s Hummer and certain firearms. To assist in avoiding these issues, consider the following steps when inserting real-world items into your game:
- Check to see if the item you are adding to the game is based on a real-world item. For example, modes of transportation, firearms and luxury goods in games could all be based off a real-world item.
- When purchasing assets from marketplaces be sure to ensure that the asset creator has not infringed the rights of third parties. This has been an issue on the UE marketplace leading to an audit of most firearm asset packages.
- If your item is based on a real-world item, determine the rights held in that item. For example, the design could be covered by a design patent while the name or logo could be trademarked.
- If there are rights held in the item be sure to secure a license from the rights holder before proceeding, otherwise you risk litigation and will be running afoul of most representations and warranties contained in publishing and platform agreements you sign.
In many cases, it’s cheaper to design your own items rather than seeking a license for real-world items, which may not be granted. Take the GTA series and its use of cars of its own design – it’s doubtful that an automaker would license their rights to a game in which the same car is used to commit (digital) criminal offences, including murder.
If you are in doubt whether the particular item or its name is protected, be sure to contact your legal counsel before spending time integrating it into your game.