International video game law: what issues are IP owners facing when exploiting game IP in new ways?

Video game companies have long been exploring new ways to exploit their game intellectual property (IP), particularly since the 1990s which saw the rapid emergence of the Pokémon TV show and Pokémon cards, as well as a string of film adaptations (for example, Mortal Kombat, Tomb Raider and Resident Evil). 

These additional exploitation methods are no longer an afterthought but are instead a significant revenue stream for a lot of game IP. This is partly as a result of companies having to think more innovatively about extracting value from their IP due to the financial climate and increasing competitiveness in the industry. There is also a 90s/00s revival boom, with adult gamers who grew up during that period happy to buy remasters and merchandise which scratch that nostalgic itch. However, focusing on these factors downplays how culturally significant and mainstream game IP has become.

'Times, they are a-changing'

Some of the more common examples that help illustrate this trend are set out below (leaving aside more direct methods such as virtual currencies and in-game transactions):

Film and TV

It would be a fruitless exercise to try and list all of the recent game-related films and TV shows, but it is safe to say that games have become one of the go-to treasure troves. Gone are the days of low-budget productions, replaced instead by box office smash hits (A Minecraft Movie, Sonic the Hedgehog 3, and The Super Mario Bros. Movie all grossed around $500m+) and critically acclaimed TV shows (The Last of Us, Arcane, The Witcher, Fallout). 

Music

It is easy to take for granted the fact that people can now listen to most game original soundtracks on streaming platforms, but this is still a relatively new phenomenon. Some IP owners are going even further, either by releasing music videos for popular in-game tracks or hosting virtual music concerts on the game's platform.

Merchandise

You name it, you can probably get it (even a Sonic the Hedgehog bathrobe or Elder Scrolls bottle opener). Again, this is not particularly new but there is a wider proliferation beyond just the biggest game IP, partly due to the ease of direct-to-consumer (D2C) platforms and low-cost manufacturers making such revenue channels more accessible for smaller IP owners. 

For more established studios or IP owners, there is a clear appetite for pushing the boundaries beyond more typical merchandise, whether that is partnering with luxury brands (for example, PlayStation x Balenciaga merchandise), publishing a cook book, collaborating with Lego to produce a series of sets, or releasing a Street Fighter 6 makeup collection. 

Cross-platform and ports

The days of console exclusivity are increasingly fading into the distance, with exclusivity now often time-limited and the majority of the most popular games being distributed across multiple platforms at launch or soon after. This is not a minor point as it can lead to significant increase in player numbers and revenue, at the same time as launching games into that next level of notoriety (for example, Helldivers 2 which has greatly benefited from its recent availability on PC and Xbox).

Spin-offs 

It is no longer surprising to see a spin-off released for a popular game, particularly if development costs are relatively low (Elden Ring Nightreign) changing the cost/benefit analysis, or it allows the IP owner to tap into a different segment of the target audience (Final Fantasy Tactics, Hyrule Warriors). In fact, it can now be difficult to identify when something is actually a spin-off or a main instalment of the series (for example, the Like a Dragon and Persona series), and nobody will be surprised if the best-selling game of 2025 ends up being a game in a spin off series (Mario Kart World).

Remasters

Nostalgia is a big seller and while some publishers and developers have historically been hot on realising remakes and remasters, the wider game industry is now also piling in. How well can remakes do? One need only look at the massive success of Dragon Quest III HD-2D Remake (second best-selling video game in Japan in 2024) and Oblivion Remastered (top three best-selling video game on both PlayStation and Microsoft platforms in Q2 2025).

Brand partnerships

Although not particularly new to the industry, there are brand partnerships of all shapes and sizes: from the ever-growing portfolio of Lego games to fun collaborations like Minecraft Crocs and a Yorkshire Tea PlayStation controller. Fortnite is often leading the way with its steady stream of partnerships (for instance, its Marriott Bonvoy virtual park collaboration). 

Key legal issues

IP owners have never had so many options to commercialise, grow and exploit their game IP. However, the desire to maximise and diversify revenue streams invariably leads to novel legal issues, particularly when venturing into uncharted territory. 

Each exploitation method comes with its own legal considerations but below are five of the more interesting legal issues that apply across the methods. 

IP rights

Given that the collective value of the IP will often comprise the lion's share of the value of a particular game for a developer or publisher, it is always time well-spent when trying to reaffirm what IP rights the company actually has. 

This is particularly the case when considering new methods of exploitation that may have not been considered, or considered to be likely, previously and therefore the necessary rights or consents may not have been obtained. If so, a risk analysis will need to be done regarding any potential issues which could arise and the cost and time it would take to remedy the position.

Equally, there is often a wider impetus to protect the overall lore of a game, and understanding how the underlying IP rights tie into that, and where they fall short, is critical, since other contractual arrangements are needed to protect the game IP as a cohesive whole.

If an organisation is deciding at a strategic level that it may move into new areas, then this should flow down into relevant contracts to avoid the need for later retrofitting. If an exploitation method involves working with third parties or moving into new territories then it is important to have your virtual IP ducks in a row to ensure any risks are identified and to help answer inevitable queries from future partners.

Control

The importance of game IP – and of maintaining any registrations for such IP – necessarily means that an element of control and oversight will need to be included in any arrangements with third parties. How much control will vary depending on the type of exploitation and the specifics of the particular arrangement, but often a high level of oversight (including approval rights) will be appropriate. Indeed, clauses around control can be the bridge between IP rights and game lore which enables the fine balance between creative freedom and ensuring a continuing overarching canon.

There can arguably be a fine distinction between having the necessary control and negatively affecting the ability of a partner to most effectively or efficiently achieve the desired goal of the collaboration. It is important for legal and business teams to assess how tight the leash needs to be for each arrangement. Getting any approval processes right in the contract is key to minimise the risk of later disagreements (which could be tricky to untangle).

IP complexities

Discussions relating to IP can get difficult quite quickly, whether that is because both parties are bringing IP to the project; there will be a comingling of IP; or there are competing expectations on ownership (and registration) of IP.  

It is critical to understand in each case what IP is actually being created, particularly to the extent there are any derivatives of existing IP (for example, new characters), what rights are granted in respect of such derivatives (to the extent not owned), and how ownership of that new IP will be handled. Related to these discussions will be expectations as to which party will apply for any relevant registered rights, defend any third party claims, and lead (potentially exclusively) on monitoring and enforcement actions. 

Reliance on third parties

While one reason for engaging third parties as part of these exploitation methods is because of gaps in internal resourcing, the principal benefit is the ability to leverage the expertise and experience of the third party (for example, any local expertise). 

However, this often requires (in contrast to the control point above) a level of "deference", particularly when operating in new markets or novel scenarios where the IP owner may need to rely on the expertise of the partner when it comes to compliance with applicable laws and regulations. 

Effective due diligence and robust contractual arrangements are required to ensure that the IP owners have an appropriate level of protection if anything goes wrong. It is critical to ensure that commitments in corporate policies are flowed down to the partners to the extent relevant to that arrangement, for example in respect of product safety, information security and accessibility. 

Invariably, the third party will also rely on other third parties, so control and visibility over such arrangements will be important to mitigate risk of the loss of control or the IP being in the wrong hands. 

Sophistication (or lack thereof)

Counterparties in this space could range from a small, relatively unsophisticated regional company to a global juggernaut. There are, of course, different challenges with both. 

For unsophisticated partners, it may be easier to obtain more favourable terms but (1) query whether the partner has actually read (or digested) the terms, and (2) what practical remedy would be available if something went wrong (for example, where the partner turned out to be uninsured and has minimal finances). For these partners, clearly communicating the key expectations and undertaking appropriate due diligence is fundamental, as is more proactive monitoring and engagement. 

For sophisticated partners, negotiations may be more protracted and difficult. It can be helpful to have processes set up in advance for looping in relevant stakeholders so that issues can be efficiently dealt with and potentially deal-breaking delays avoided.

Osborne Clarke comment

There are dedicated gamers who will always be on the lookout for alternative ways to enjoy their favourite series, but the success of video game companies recently has been in serving that community at the same time as appealing to the mass market. 

In order to make these strides forward, video game companies are at times having to take a leap of faith into the unknown and relying on the expertise of others. These can be exciting initiatives with potentially commercially significant upsides, but it is important that legal teams are included early (and sufficiently) to mitigate the potential downsides, which could adversely impact or jeopardise the project itself or the IP owner's IP more broadly.  

If you would like to discuss any of the above, or other issues related to commercialising game IP, then please connect with one of our experts below.