Tom Collins, IP Lawyer, talks developers through the options when it comes to protecting their IP.
The release of The Angry Birds Movie demonstrates the increasing diversification of games platforms and the willingness of Hollywood to take a gamble on turning well-established intellectual property from the gaming industry into blockbuster movies.
This now looks to be followed by a live action Pokémon movie, capitalising on the extraordinary success of Pokémon Go.
Transitions such as this inevitably presents some legal challenges, both for games developers and film producers, but a well-maintained IP portfolio enables a much smoother transition from the small screen to the silver screen.
Games in Hollywood
Whilst Angry Birds is probably the first original app to be turned into a film, the evolution from video games to movies is by no means novel. This started with Super Mario Bros in the early 1990s, and has since been followed by the likes of Tomb Raider, Doom, Need for Speed and, more recently, Warcraft. Even classic arcade game Pac-Man appeared in the 2015 science-fiction comedy Pixels. Whilst none of these adaptations have been box office smashes, the trend does not seem to be slowing down.
A game/app will often comprise of a multitude of IP rights. The protection of some of these requires active steps to be taken on the part of the developer, but some vest automatically upon creation.
The creators of Angry Birds, Rovio Entertainment Ltd, own an extensive portfolio of European Trade Marks, ranging from figurative registrations for the characters (see below) to more basic word marks for “Angry Birds” and “Angry Birdies”.
Rovio’s protection is further bolstered by a Registered Community Design for an angry bird character, enabling it to prevent third parties from using a design which gives the same overall impression as this registration:
In addition to registered rights, Angry Birds will benefit from copyright protection in the original artistic and musical works featuring in the game, as well as sound recordings used. This plethora of IP is what Rovio can then licence to the film producers when the decision was made to turn the record-breaking game into an animated movie.
As part of any licensing arrangement, in addition to terms dealing with royalty payments, it is important that the developer retains a sufficient degree of control over how the IP is used in a film.
A significant amount of investment goes into building a successful gaming franchise, and whilst producers inevitably need creative freedom to produce a commercially viable movie, developers should be wary of giving them carte blanche to use the IP.
One of the appeals of cinematic adaptation is the idea of humanising the in-game characters, giving them a voice and personality. In The Angry Birds Movie, the main character ‘Red’ is played by comedy actor Jason Sudeikis. Of course, not everyone will agree how fictional characters should be portrayed, and this is very much an artistic choice. A developer would normally want to be involved in this decision so as to preserve the integrity of the game, and should include an express provision in the contract/licence with the film company to this effect.
Some games publishers have gone a step further, becoming directly involved in film production. For instance, Ubisoft recognised the value in maintaining direct creative control over their IP, and established Ubisoft Motion Pictures in 2011. This entity has since been involved in a number of titles including the eagerly anticipated Assassin’s Creed, due to be released later this year.
One of the requirements for a trade mark to be registrable under the Trade Marks Act 1994 is that it must have “distinctive character”.
For games such as Angry Birds, it is inherently easier to register and licence the in-game characters and features. These animated creations are instantly recognisable, and lend themselves well to being registered as trade marks or designs (as illustrated above).
By contrast, for games such as Call of Duty where the game is more life-like, characters such as soldiers are unlikely to be sufficiently distinctive to attract trade mark protection.
Whilst copyright will protect original drawings used in the game design, registering key characters as trade marks can be advantageous. It is inherently easier to enforce a trade mark (being a registered right), and a developer with an array of registrations can use this as a bargaining chip in licensing negotiations.
Pokémon Movie is a “Go”
Pokémon Go has quickly become a global phenomenon amongst smartphone users, with record download numbers in the first week of its release. In the wake of this success, it has been announced that Legendary Entertainment has won the rights to launch the first live-action Pokémon film.
The Pokémon Go platform incorporates a long established body of IP, with many of the first generation Pokémon such as Charmander, Squirtle and Bulbasaur having being registered as word marks since the early 2000s. Even the iconic "Poké Ball” has been registered since 2003.
To further bolster its IP protection, Nintendo registered the Pokémon Go logo in July 2016, coinciding with the app’s launch. The filming of Pikachu and friends is expected to commence in 2017, and as with Angry Birds, the creative minds behind Pokémon will no doubt be giving careful thought to how their IP is depicted on the big screen.
In such a creatively fertile industry, the appetite for adapting games into films looks likely to continue. There are obvious benefits for developers in making this transition, both in terms of reaching new audiences and exploiting their well-established IP. Adopting a trade mark filing strategy early on in the development process, creates ample opportunities to monetise the brand and can strengthen a developer’s position in licence negotiations.
Developers should however be wary of the scope of licences granted to use their IP, and a balance needs to be struck between giving creative autonomy to the production company to bring the game to life, whilst retaining sufficient control to maintain the integrity of the game.
First published in Develop, August 2016