The line between copyright and trade dress in video game law is not just academic—it could determine whether your studio controls the visual soul of your game. From iconic characters like the Super Mario Bros. and environments to the overall “feel” of gameplay, knowing which intellectual property regime applies can mean the difference between defensible intellectual property and an open invitation to copycats.
What Parts of a Video Game Are Protected by Copyright?
Copyright law protects original works of authorship fixed in a tangible medium. In the context of games, this includes:
- 2D and 3D artwork (characters, backgrounds, assets)
- Music and sound effects
- Scripted dialogue and narratives
- Source code (as literary work)
- Cinematic cutscenes
Courts have repeatedly held that video games qualify as audiovisual works, and their expressive elements are protected by copyright. This means your custom environment designs, creature art, or cutscene animations are protected from the moment they are created—no registration required (though registration is necessary before suing).
However, what copyright does not cover is the game’s rules, mechanics, or overall concept. For example, the idea of summoning a creature to battle is not copyrightable—but the unique way your game visually expresses that idea may be.
What Is Trade Dress in Game Design?
Trade dress is a subset of trademark law that protects the look and feel of a product when it functions as a brand identifier. In video games, trade dress can protect things like:
- The overall layout and menu interface
- Distinctive visual themes and color schemes
- HUD (heads-up display) configuration
- Unique aesthetic styles that signify a single source
To claim trade dress protection, a game must show that its look and feel has acquired secondary meaning (i.e., consumers associate that style with the developer) and is non-functional (not essential to gameplay or performance).
Trade dress is especially useful when copyright doesn’t apply—such as to the interface or menu design of your game.
How Do These Apply in Real Cases?
The Nintendo vs. Pocketpair controversy over Palworld highlights this tension. Nintendo has asserted both copyright and trade dress claims, arguing that Palworld‘s creature design, summoning animations, and UI mimic core aspects of Pokémon.
While Nintendo may struggle to enforce its patents around broad gameplay concepts like “throwing a ball to summon a creature,” it has a stronger hand when it comes to protecting:
- The iconic red-and-white sphere design (copyright and trade dress)
- Character design similarities (copyright)
- UI layout or art style that mimics Pokémon (potential trade dress)
In Atari v. Amusement World and other early cases, courts drew the line between copying ideas (legal) and copying expression (illegal). Today, that line is still debated, especially when games borrow heavily from one another.
How Should Game Developers Protect Their Visual IP?
Here are foundational steps developers should take to protect the visual identity of their games:
- Register copyrights for all art assets, characters, cutscenes, and dialogue.
- File trademarks and consider trade dress claims for your game’s UI, aesthetic, and packaging.
- Avoid using third-party assets without proper licensing.
- Include strong IP assignment clauses in contracts with freelancers and collaborators.
- Monitor the market for knockoffs and consult counsel about cease and desist options.
Even if you don’t plan on litigating, these protections strengthen your position during acquisition or publisher negotiations.
Video Game Copyright and Trade Dress Work Together
Game design copyright and trade dress are not mutually exclusive—they work in tandem. Copyright protects the specific art and media files. Trade dress protects the cumulative experience of your game’s visuals as a brand.
Understanding both is essential if you’re building a franchise or simply want to make sure your unique style isn’t ripped off by competitors.
David Nima Sharifi, Esq., founder of the L.A. Tech and Media Law Firm, is a nationally recognized IP and technology attorney with decades of experience in M&A transactions, startup structuring, and high-stakes intellectual property protection, focused on digital assets and tech innovation. Quoted in the Wall Street Journal and recognized among the Top 30 New Media and E-Commerce Attorneys by the Los Angeles Business Journal, David regularly advises founders, investors, and acquirers on the legal infrastructure of innovation.
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