When a Game Concept Isn’t Enough: Finding Intellectual Property In Social Games

Mob Wars on Facebook[Editor’s Note: This is a guest post by David Bailey, a partner at Kauth, Pomeroy, Peck, & Bailey LLP.]

The saga of the Facebook hit game Mafia Wars has made the issue of intellectual property obvious to any serious social game creator. But given how these laws have developed in the rest of the gaming industry, many games likely contain intellectual property. This will gradually reshape social gaming.

In 2008, Mob Wars creator David Maestri — a developer at top social gaming company SGN — left to launch the game on his own. He was sued by SGN, and settled amicably: He owns the game but SGN has some rights. Then, he sued top social gaming companies, Zynga and Playdom, for creating quite similar games called Mafia Wars and Mobsters. Those cases were settled earlier this year. Meanwhile, these companies and many others have continued building mafia role-playing games and expanding them to other platforms, like the iPhone.

Today, social game developers are increasingly focusing on strategies to prevent imitators from luring away potential users.

A mixed IP history

Unfortunately, games inspired by the successes of others have plagued the entire industry since its inception and the courts have rarely intervened. This inability to prevent imitation, however, has led mainstream game developers to devise a number of successful strategies for preventing imitators from gaining a significant user base. More “traditional” strategies pioneered by console gaming developers are based upon copyright and trademark law, and are equally applicable to social games. Newer strategies are also emerging in the Massively Multiplayer Online (MMO) and social gaming industries that leverage innovation in underlying technical infrastructure as the basis for seeking patent protection for game features.

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