UK: Intellectual Property Law And Entertainment Software

Last Updated: 23 February 2001
Article by Alex Chapman

For developers and publishers Intellectual Property has always been important. So much of the value in a product is in its ingenuity, originality and branding that for a developer or publisher to ignore it would mean disregarding a substantial proportion of its business’s value…

"Intellectual Property" ("IP") refers to the ownership of the product of creative thought. IP law therefore deals with the way this ownership is protected and exploited and by whom. In the UK this will mean "copyright" and "trade marks" and perhaps "patents".


Copyright, as its name suggests, is the right to copy and the right to prevent any other person from copying. It protects written (including software code), drawn, musical and dramatic expressions of ideas and arises automatically as soon as a creative work is made. People sometimes talk, confusingly, of "copyrighting their work" but in the UK there is no copyright registration or similar process. IP owners must therefore rely on the use of copyright notices and maintaining adequate records to prove and therefore enforce their copyright.

Copyright is owned by the person who created it except when that person does so as an employee - in which case it will generally belong to the employer. Contrary to popular misconception, if a person is paid to create a copyright work, such as an animation or a graphic, as a freelancer, then the copyright in that work will belong to the freelancer and not the person paying for it. He or she only gets an implied licence to use it. In these circumstances the only way to own the copyright in the work outright, is get it expressed in writing, signed by all the parties (an assignment).

The implications of this are significant. Take for example the situation where a developer commissions a designer to produce graphics for a PC title without an assignment. If that title is successful and the publisher and developer want to convert it to console format then the designer may prevent the use (copying) of the graphics for that purpose without the payment of additional fees.

If the publisher / developer goes ahead without permission of the designer it may be liable for copyright infringement, ordered to stop its sales and required to pay compensation.

As a result many publishers now require developers to assign all the IP to it. Developers should do likewise in respect of all the work done for it by having appropriate contracts in place. If a developer does not but purports to assign everything to its publisher, then the developer may be in breach of contract and liable to pay hefty compensation.

The alternative is for a developer to grant the publisher a licence (permission to use). This is particularly useful where the developer has created proprietary software such as a 3D engine which it wants to use in more than one application. It must be careful therefore to retain the right to do so and by carefully defining the terms on which publishers may use copyright works i.e. the countries, the formats and the royalties, the developer can exercise control over its creations and keep it options open as to further opportunities. For example "Michael Owen’s World League Soccer", released by EIDOS on PC & PSX was also released by THQ on the N64.

Such a licence may be of the complete package or just the 3D engine with an assignment of all the other copyright in the game. Alternatively a developer may licence others to use the engine only, as in the case of the "quake" and "unreal engines". The licensor will therefore continue to profit from its work and the licensee will avoid the costs of developing its own engine.

Trade Marks

Another important consideration in relation to entertainment software is trade marks. These are signs capable of graphical representation that distinguish or identify goods and services such as logos and names. Consequently, trade marks can have enormous value and examples include Mario and Lara Croft as logos, and Nintendo and Play Station as words.

In the UK a trade mark can either be registered (®) or unregistered (™) but since 1994 only registered marks have the benefit of trade mark protection such as statutory rights to use them and stop others using identical or confusingly similar marks in the UK. If a mark is unregistered the owner must look to the notoriously expensive and difficult to prove common law of "passing-off" to prevent infringement.

The line over which one must not step is not clear, recently the Football Association failed to stop Konami using the name "Konami Premier Soccer" because it claimed there was a likelihood of confusion with the mark "Premiership". However had Konami called the game "Premiership Soccer" they would almost certainly have succeeded.

Trade marks may also be subject to licences and many popular titles are the product of bright licensing deals. Fifa 97 (98, 99, 2000 etc) is a typical example of the use of a valuable mark to add kudos to a title and the same is happening in reverse, with Lara Croft now marketing Lucozade.

For developers and publishers alike it is therefore crucial that they determine and protect the value in their titles, characters and logos.


Perhaps the most intimidating IP right is the patent. This grants a complete monopoly to exploit the idea / invention or creation in its geographical area. Until recently software patents have been impossible in the UK but the Patent Office has relaxed this policy so that software or processes that make hardware do something inventive, novel and industrially applicable may be patentable. This has been prompted by developments in the USA where the stream of patents for internet applications and processes has been alarming and has led to successful applicants seeking injunctions against developers and publishers who developed their technology before the patent holder.

The majority of software patents may be unenforceable, such is the state of the prior art, however developers and publishers should not discount them. More importantly all developers should keep comprehensive record of their developments to protect themselves in the event that a patent holder makes a claim because evidence of earlier knowledge will defeat a patent.

Intellectual property is perhaps the single most important asset any publisher or developer owns. An appreciation of its value and the law affecting it cannot be underestimated.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions