Intellectual property in video games – an overview of current issues concerning AI, game clone disputes and copyright regulations in the US and Europe
Recently “Intellectual Property in the Gaming Industry” conference was organized by the Faculty of Law of the University of Geneva (JDPI) and co-hosted by European Law Institute IP Special Interest Group. It was an exceptionally valuable event bringing together lawyers, academics and in-house counsels from leading gaming companies. The discussions provided a comprehensive overview of current legal developments shaping the global video game industry and esports ecosystem. Within the individual panels, participants had the opportunity to hear, among others, representatives of academia (Université d’Aix-Marseille), public administration (WIPO), and the business sector (CD Projekt).
Key insights from the conference:
Video games as multi-layered IP structures
One of the central themes was the ongoing challenge of legally defining video games. They do not fit neatly into a single category — they simultaneously comprise software, audiovisual works, artistic creations, musical compositions and game mechanics. Because of this composite nature, effective legal protection of multiple IP assets requires an integrated approach combining copyright, trademarks, design rights, patents, trade secrets, and contractual safeguards.
This nature poses a major obstacle due to the divergent approach in the EU, United States and Great Britain. For example, United States protect overlapping elements and is willing to assess the total audiovisual effect when expression is repeated.
Litigation trends and enforcement challenges in the United States
Recent U.S. case law illustrates how courts continue refining the boundary between unprotectable ideas and protected expression. In clone-game disputes, similarity alone is not decisive. What matters is whether protected expression has been copied. At the same time, courts increasingly recognize that even combinations of individually unprotectable elements may qualify for protection when their overall selection and arrangement satisfy the extrinsic (substantial similarity) test (e.g. Metcalf v. Bocho, 294 F.3d 1069, 1074, 9th Cir. 2002).
Additional enforcement trends discussed included private server litigation, AI training as fair use, and in-game music copyright related issues.
Video game law: European & French Regulatory Perspectives
European and French legal frameworks show that video games occupy a hybrid status: they are simultaneously software, audiovisual works, and composite creations. As a result, they may fall under both the general copyright regime and the special rules applicable to software present in numerous European countries (including France), which courts apply flexibly depending on context.
Recent case law reflects a move away from rigid classification. Courts frequently assess games as unified works rather than splitting them into separate elements, while French jurisprudence often treats them as collective works whose rights belong to the entity that financed and published the game.
In ruling of Rennes Court of Appeal (1st Chamber) on 7 May 2024 (Case No. 21/05185), the court rejected the challenge by video game designers who sought to question the collective nature of their creation. The court indicated that creators had their claims rejected because they failed to demonstrate the originality of their individual contributions, with the court ruling that their work was part of a collective work. The classification as a collective work (Article L113-5 of the Intellectual Property Code) was upheld. Consequently, copyright was vested in the legal person under whose name the work was disclosed (the publisher/producer), and not in the individual contributors.
The discussions also highlighted emerging challenges, including AI-generated content, user-created modifications, and subscription-based distribution models. These developments raise new questions about authorship, transfer of rights, resale restrictions, and the balance between consumer protection and IP enforcement.
Trends and perspectives of ADR in gaming disputes
A particularly practical session focused on alternative dispute resolution mechanisms tailored to gaming conflicts. Mediation, arbitration, and expert determination are increasingly preferred because they offer confidentiality, speed, technical expertise, and internationalization of IP. In a sector where disputes may involve multiple jurisdictions, specialized technologies, and complex licensing structures, ADR often provides more commercially solutions effective (potentially a win-win ones) than traditional litigation and can lead to preservation of business relationships.
As a solution, an International Games and Esports Tribunal (IGET) was presented by World Intellectual Property Organization Arbitration and Mediation Centre and Esports Integrity Commission.
Why these developments matter
The gaming sector has evolved into a highly sophisticated global technology industry, capable of projecting the cultural achievements of even small countries on a global scale. Today’s studios, publishers, platforms, and esports organizations operate within a dense web of intellectual property rights and contractual frameworks.
Legal risk is no longer limited to copyright or trademark infringement claims. Now it includes aspects concerning data protection, monetization models, user-generated content and AI deployment.
From a legal advisory perspective, this confirms a clear reality: effective support for gaming clients requires a number of skills, including interdisciplinary expertise and international awareness.
At JWP Patent & Trademark Attorneys, we continuously monitor these global developments to help clients:
- structure and secure complex IP portfolios,
- design scalable licensing and distribution frameworks,
- anticipate regulatory risks across jurisdictions,
- enforce rights strategically,
- and resolve disputes efficiently at both national and international levels.
Conferences like this highlight how quickly the legal landscape is evolving and why informed legal strategy is a decisive competitive factor in the gaming industry.
If you are active in game development, publishing, esports, or interactive technologies and would like to discuss how these trends may affect your business or projects, we would be pleased to connect and exchange perspectives.
