The Authors' Take - How to make a video game Easter Egg: legal tips and tricks

How to make a video game Easter Egg: 
legal tips and tricks

The legal profession is permanently fuelled by new challenges generated by the game industry. One of such thought-provoking topics is the use of Easter Eggs. In gamedev, Easter Eggs serve to provide more exciting user experience by broadening in-game world with inside jokes and references to famous games, films, books etc. Such references to third-party works, however, may cross the line of IP infringement. 

Game developers are not the first lured to using third-party content and trying to justify such use by some ‘noble’ purpose. So, does naming a third-party content as Easter Egg makes this a novel topic for legal discussions? 

Yes and no. 

Easter Eggs do not require a new legal framework to regulate them, although finding the right legal tools to make non-infringing Easter Eggs may be a problematic task. Since Easter Eggs are not always a matter of humour, can a parody be used as a universal ‘safe harbour’? Do Easter Eggs comment on or criticize the original work? Where is this thin line between a lawful Easter Egg and a copyright infringement and how not to cross it? 

What if a game only mentions a famous character, or makes a joke about him? Is there any difference between the following types of use: (1) Superman runs cross a battlefield; (2) A main playable character of a game is a big fan of DC Comics and never takes off his Superman T-shirt; (3) A game contains a dialogue discussing a recent Superman film; (4) A game has a road sign to Smallville? 

The answers to these questions may be of interest both to those amongst us who stand as an obstacle between a game development team and their creative endeavours, and outside professionals wondering what might trouble the quiet lives of in-house counsel. 

[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP). The full text of this contribution will be made available on Advance Access soon]

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