Eva Vonau is currently an intellectual property (IP) lawyer at Hogan Lovells and will be opening her own law firm, Slopek Vonau PartG mbB this September. Before pursuing a career in law, Eva worked at one of the biggest TV production studios in Germany as a technician, something that serves her well to this day. At Casual Connect Europe 2017, Eva laid out a roadmap for navigating the differences in IP law between countries.
“When I worked as a technician at the TV production studio we often did our own video projects on the weekends,” said Eva. “We soon learned that we needed to get licenses for the works of others, especially music rights, to do the projects in the way we wanted to. I really liked looking for ways to get those licenses and to determine which uses were allowed and which ones were not. I realized that I was way better at reading laws than in technical production so I decided to change my career path.”
“I have a lot more technical knowledge than other lawyers through my time as a technical assistant and can therefore often serve as a ‘translator’ between lawyers and developers, technicians and producers,” Eva added. “Different technical implementations often have different legal consequences. It is often very important to understand why a solution was chosen from a technical point of view to give legal advice that is actually helpful and can be implemented.”
IP Laws More Similar than Different
It can be a challenge dealing with IP for mobile games, considering how easy it is for games to be experienced from people around the world. Fortunately, the core basics of IP law are similar in the whole world, even China, with little fundamental difference between trademarks, patents and copyrights.
“What a trademark, patent and copyright is, is also quite similar all over the world. The differences lie in the details, e.g. whether a trademark needs to have been used prior to registration or not or whether copyright can be transferred as a whole (USA) or not (Germany),” said Eva. “Speaking of China, we do not see too much difference in the IP law as such there. Where we do see differences is the enforcement. This is true for many countries that have a bad reputation regarding the IP of others. Most of them have a problem with enforcement, not with the law as such.”
“We see most international problems with clones and in cases where a pre-existing IP is used for video games. Licensing pre-existing IP in a way that is valid for the whole world can prove quite difficult,” said Eva. “The most basic guideline should be this: Mere ideas are not protected; only the concrete implementation is. So taking the basic idea for a game, e.g. a puzzle game where you have to match certain colors or forms, is free to use, but it is not OK to take over the concrete icons used, the concrete game design, lines of code etc.”
Free-Use and Work-Made-for-Hire
While China presents its own issues when it comes to IP, Germany and the EU in general has its own concerns. Eva notes that the way people work in the EU presents its own complications.
“One of the problems we see quite frequently is that companies from overseas work mainly under the ‘work-made-for-hire’ principle, meaning that they got the copyright to the works they use because the author created the work for them,” said Eva. “However, in Germany and other European countries copyright cannot be transferred as a whole, you can only get a license to use the work AND more importantly it is not automatic that the employer gets the rights to works made by an employee. So when an overseas company tries to enforce the rights to their games in Germany they will need to prove that they have the license from the author. As simply the position as employee is (most of the time) not enough to do so and as the overseas company often did not get anything in addition in writing from the author it is sometimes very difficult to prove the ownership of rights.
“It also needs to be noted that there is no concept of ‘free-use’ in Germany and the EU. We do have a closed system of specific exceptions and limitations to copyright and this leaves less room for ‘free-use’ than U.S.-based companies are used to.”
Interesting Legal Problems
Eva did confirm that she enjoys video games, herself a big fan of Wing Commander and Heroes of Might and Magic 3, and is currently loving Divinity - Original Sin. While it’s not necessary to play games to be a games lawyer, having passion for the industry helps.
“If you are interested in law and also the gaming industry I recommend trying to get as much IP law courses at university and IP law internships as you can get,” said Eva. “There are not many students that already have knowledge of IP law right out of university.”
Ultimately though, the variety of the games industry is what fascinates Eva. “I find it highly interesting that games do need so many different people, skillsets and different creative works to get developed. You need to get all those creative people to work together to create something that I, as a user, can interact with and get hours of fun out.”
“The complexity of the development leads to quite a lot of interesting legal problems,” she concluded.
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