St. Louis patent attorney Bryan Wheelock has written a new article for World Trademark Review Magazine titled “When reality and video games collide.” An excerpt of the article follows here:

In the effort to make video games more realistic and entertaining, developers incorporate real-world elements into their games. However, the owners of these real-world elements are not always keen on this use of their property – particularly if they are not compensated. While virtual skirmishes are fought in the gaming world, real battles are being waged in the courts.

The treatment of the borrowing of real-world elements in video games depends on the nature of the underlying rights. Video games are expressive works entitled to First Amendment protection, and the balance of free speech rights and proprietary trademark rights favours game developers, unless the use is so extensive that it suggests sponsorship by the trademark owner. However, personal rights (eg, the right of publicity) are given more deference, providing individuals with an advantage over game developers. Copyright rights are subject to exceptions for de minimis and statutory fair uses. Finally, patents present some open questions concerning whether virtual use can constitute infringement.

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Read the full article on the World Trademark Review website.