Protecting intellectual property rights in the billion-dollar world of virtual gaming

Virtual reality may have found a game-changing partner: esports.

Recently it was announced that Justice League VR: The Complete Experience is making its way from IMAX VR locations to PlayStation VR headsets, enabling video game users to step into the shoes of their favorite superheroes, such as Batman and Wonder Woman. The news comes on the heels of announcements that the publisher of the wildly popular video game Halo will team up with Microsoft to incorporate mixed reality headsets into the game and that Intel will create a competitive VR esports league with the help of ESL and Oculus.

It’s clear that the days of esports being merely a spectator sport are numbered, as soon users won’t just be sitting and watching the story unfold on a computer screen, they’ll be immersed in it. What challenges will this immersion create when it comes to protecting one’s intellectual property rights to the contents of a game and the innovative technologies involved, like VR? Undoubtedly, disputes over ownership of the underlying technology will increase as more players have a hand in the soon-to-be billion-dollar industry.

On the content side, developers will continue to seek protection of their copyright to the games and the underlying concepts regarding how the games are played. The Copyright Office has stated that copyright law does not protect the idea of a game by itself. Once a game has been made public, nothing in copyright law prevents others from developing another game based on similar principles. However, copyright law does protect the expression of ideas, the unique expression of the game’s underlying concepts that make the character and content of the game.

If there is some copying, courts typically look to whether the allegedly infringing work is “based upon” or “substantially similar to” the original work. Generally, third parties are allowed to use the ideas contained in the game so long as they don’t copy the expression of those ideas from the original work — such as the underlying software game code or those creative elements of the game that make up the “look and feel” of the copyrighted work. This will remain the case when the gaming industry incorporates VR, crafting a more complex gaming world for the user.

There’s no doubt the game developer owns the content of the game, but as VR enables the user to interact with the content in a variety of ways, clear-cut ownership may get lost amidst the grey legal areas surrounding the virtual world. The question becomes where does the developer’s right to the software providing the content end and where does the VR provider’s right to the software empowering the user’s experience with such content begin?

The legal dangers with this virtual gaming world will be largely rooted in the lack of clarity around intellectual property rights when content and technology come together to produce something new and valuable.


On the technology side, patents provide the owner with a right to exclude others from making, using, selling, offering to sell and importing patented inventions. Generally, there are two types of patents at issue in terms of VR: (1) “utility” patents protect the way a technology works and (2) “design” patents protect the way an article looks.

Both types of patents are at play when considering the functionality and processes of the game, game features and arena, as well as arcade center features. Several gaming patents have already been filed, one of which is called “Determining Game Skill Factor.” This patent discloses an algorithm evaluating how much of the outcome of a given game depends on skill versus chance.

Patent protection of this sort will be extremely vital in the esports-VR space as the filings of patent applications for VR technology drastically increase. Just last year, more than 30,000 patent applications were filed directed specifically to VR-related technologies. Although patent law does not protect abstract concepts that may be implicated in a virtual gaming universe, filing appropriate patent applications to protect new technology implementations in the space can and should be done.

The legal dangers with this virtual gaming world will be largely rooted in the lack of clarity around intellectual property rights when content and technology come together to produce something new and valuable. Innovators engaged with these new VR technologies will need to negotiate the ownership rights of any future valuable intellectual property that may be created through this partnership.

Considering these legal implications ahead of time can pave the way for a happy marriage between the soon-to-be billion-dollar gaming industry and VR. According to Business Insider, VR headsets alone will grow to a $2.8 billion industry in 2020. Goldman Sachs predicts revenue from all categories of VR, including software, will reach $110 billion by 2020.

VR and esports together could be a hugely successful collaboration. The addition of VR to games, such as Dota 2, has already garnered great attention. VR technology will transform the esports industry, as people will no longer be separated by screens but, rather, will play in a shared virtual space. Reality and computer-generated content will be so tightly integrated that users won’t be able to tell one from the other.

For now, innovators in virtual gaming face substantial uncertainty about the extent to which they can protect their innovations and competitive advantages as they fight to give gamers the best experience.