Legal opinion: What keeps a game true to the IP?

Shadow Warrior

By on May 24, 2013 at 4:36 pm

Who wanta some Wang? I was hoping, just maybe, that iconic line would make it into the just-announced reboot of Shadow Warrior.

It did not. Instead, we were treated to an artsy video with butterflies and classical music that had no relation whatsoever to the original. What a waste.

Last fortnight, I looked at the class action lawsuit over Aliens: Colonial Marines.  Before release, such a big deal was made out of “staying true to the Aliens universe”. Yeah, well. We all know how that turned out.

Clearly, staying true to the spirit of an IP is hard… really hard. Some developers do manage, such as Firaxis’ excellent remake of XCOM. But most will fail miserably, like Aliens: Colonial Marines. It’s time then, to look at what actually ensures these remakes and IP games are actually true to the franchise.

An interested licensor with commercial trademarks is the strongest protection

Trademarks are the strongest level of protection, providing the best way to ensure something stays true to the source.

Games Workshop is notorious for its trademarks, owning everything about Warhammer and every way to mangle “space marines” in the Queen’s English (for the original DOS-version of Space Hulk, they even had Jervis Johnson do the voiceovers).

These trademarks give Games Workshop a lot of control over where and how each trademark is used. While it doesn’t quite explain why Dawn of War 2 ended up as Necromunda in Space, for the most part Games Workshop is both rabid and successful at ensuring its trademarks are used to represent its current revision of the Warhammer universes (and I do mean revision).

When an interested company like Games Workshop does grant permission, their will is enforced by extra bureaucracy during the game’s development. Typically, they will have say in the various development milestones. If a game does not stay true to the source material, the licensor (i.e. Games Workshop) has the power to put it on hold until it does, lest the permissions be revoked.

Gun names are iffy

Earlier this month, EA decided it would no longer seek permission for using the names of guns. Up to this point, publishers have almost universally sought permission from manufacturers to use the real names of guns.

However, licensing of guns is uncertain. This was shown when Colt sued Bushmaster (a rival manufacturer) over the use of the “M4” name. Despite Colt owning the M4 name, and being the actual inventor of the gun, Bushmaster was allowed to keep using the name. It’s for this reason that EA would be going forward with its decision. Gun names just aren’t as protected as assumed ever since Goldeneye 64 renamed the Walther PPK to the PP7.

The first issue is that there is a difference between the gun’s trademark and the military’s designation. For example, the Barrett M82 is the rifle’s trademarked commercial name. M107 is the military designation and is not trademarked. Similarly, even though Colt owns the M4 trademark, the military designation is very close—M4A1.

The second issue is that such widespread use of the M4 has led to the M4A1 (the not trademark) being shortened into the slang term M4 (the trademark) to describe a carbine. When this happens, a trademark is in danger of becoming generic and losing its protection, as happened with M4.

I can’t say for certain whether EA will get away with it, but gun manufacturers won’t be happy. In some cases, licensing fees for guns could approach many thousands of dollars, even as much as five to ten percent of a game’s retail sales.

There’s also the issue that these licensing agreements have in the past given gun manufacturers some creative control over games. Under Barrett’s licensing agreements, for example, you can’t put the M82 in the hands of the non-American bad guys. But with EA leading the way, now we might see all manner of modern-day commies wielding high-powered sniper rifles.

So what happened with Colonial Marines?

So erm… if IP owners can have such control over the direction of a game, what did happen with Colonial Marines? As we’ve heard before, no one bothered to check up on how it was going. Gearbox was too busy with Borderlands, while Sega seemed out of the loop entirely.

This shows an important flipside to licensing. Usually, licensing is maligned, for completely opposite reasons. Movie licensed games are often bad because of the tight deadlines imposed on the game, or the license takes too much money away from the game’s development.

In the case of Aliens: Colonial Marines, however, the problems came from no oversight at all being applied by the owner of the IP. I was unable to find out who this is, but they had a great chance to ensure the game was up to scratch, by writing milestone agreements and checkups into the licensing agreement.

They didn’t, however, and what we got was the final result of their neglect—treating the Aliens IP as an asset to be flogged off rather than ensuring the proper creative development. They, along with Gearbox, and Sega, are to blame for what happened. In the balance of everything, all franchises should be so lucky to have the Emperor’s lawyers dictating the correct way to pronounce speesh marines.

2 comments (Leave your own)

I’m pretty sure 20th Century Fox owns the IP for the Aliens franchise.

So 20th Century Fox delegates Sega to create a video game.

Sega delegates Gearbox to create a video game.

Gearbox delegates Timegate Studios to create a video game.

See the problem?


When you put it that way it’s like a game of Chinese Whispers.

*Fox whispers to SEGA* Make a really good looking Aliens game with awesome alien AI.

*by the time it reaches Timegate* Huh? Make a bad looking Aliens game with awful alien AI purple monkey dishwasher? How does that even…fine, we can do that, we might have to drop the purple monkey dishwasher though…

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