Can I Mention a Video Game and Discuss a Part of It Vaguely in My Book?

Yes, you can certainly mention a video game and discuss a part of it vaguely in your book without invoking copyright infringement. When addressing elements of video games in a fictional setting, the key lies in understanding the nuances between copyright and trademark law. Specifically, the names of video games are protectively trademarked, not copyrighted, and there are nuances to how these trademarks are applied.

Understanding Copyright and Trademarks

To start, it's important to distinguish between copyright and trademark. Copyright protects the creative expression of works, such as writing or music, while trademarks protect brand names, logos, and other identifying elements of a product or service. The names of video games fall under the category of trademarks, which are primarily concerned with preventing others from using them in a way that could confuse consumers about the origin or sponsor of a product.

Real-World Examples

A practical example can help illustrate this concept. In our upcoming urban fantasy novel, our characters engage in a discussion about the healing spells from the game Pathfinder. Here's how it plays out:

“Nnng, you know what, show a little care, surely you don't hurt. But you are still injured,” Lillian said.

“Are there any spells that can heal? You know like in that game—”

“Dungeons and Dragons,’” Iris volunteered.

“That too, but I was thinking of that other one. Pathfinder! That’s the one. I mean magic works so there must be healing spells right,” May said.

“I wish,” Iris replied. “The kind of magic we do works mostly on the mind. You want to change someone’s subjective experience, we got you covered. You want to control someone’s sensory environment, no problem, we can do that too. Our adversary tends to focus on spells that project power. Enslaving people’s will, shoving people around that sort of thing. Skilled practitioners of any kind can move stuff with their minds and do ... other stuff. Like Serene, she’s one of the best mages alive. Mending a broken bone or causing cells to regenerate, well… you figure out a way to do that, your name will go down in history, granted, it will be a secret history, the kind most people don't know, but still.”

In this fictional scenario, the characters openly discuss a video game and its elements, specifically referencing Pathfinder as a source of inspiration for healing spells. This approach is permissible because the title and name of the game are trademarked and not subject to copyright, as long as the reference is not misleading or likely to confuse the reader into believing the game is endorsed by or sponsored by the author.

Trademarked Names and Descriptors

While the names of games are trademarked, they serve a specific purpose in marketing and branding. It's important to recognize that these trademarks only apply to marketing or selling a specific class of goods or services. For example, Cadbury purple is trademarked in candy and confections but could be used in marketing sports shoes, dental equipment, or other fields. Similarly, discussing a game in a novel does not deprive the game's trademark owner of their use of that trade dress in their class of goods or services.

Limitations with Fictional Elements

However, there are some limitations to be cautious of, particularly when it comes to fictional elements. Certain terms that are trademarked may extend to the realm of fiction as well. For instance, in our novel, we can use the names of games like Pathfinder or cars like Mercedes-Benz, but we cannot use trademarked words like muggle, as the Warner Bros trademark on muggle extends to fiction movies, radio shows, stage productions, and other entertainment media.

Striking a Balance in Fiction

It's important to carefully consider the elements of a video game that you choose to discuss in your fiction. You want to avoid any terms or phrases that are protected by trademark law or are associated with franchises with restrictive intellectual property terms. For example, in our work, we deliberately avoided mentioning a certain trademarked franchise, as highlighting it might have violated their copyright or trademark restrictions.

By understanding the proper use of trademarks and protecting creative content, authors can enrich their fiction with credible and engaging references to video games without running into legal issues. So, go ahead and let your characters play Skyrim, wear Rolexes, or delve into the world of DD without breaking copyright laws.