WIPOD – Make IP Your Business: Transcript of Episode 3

Videogame Development: A Quest for IP 
Level 2 – IP in the development phase 

Paola Vera: Ask first, be kind first at first, and destroy them later, I guess.

Allison Mages: Today we Make IP Your Business. It’s a podcast that explores how intellectual property positions a company to succeed or stumble.

I’m Allison Mages, Head of the IP Commercialization Section at the World Intellectual Property Organization (WIPO).

We call this season “Videogame Development: A Quest for IP”.

Join our adventure through five levels of game development, where you'll hear from industry experts about how these rights will help your business “level up” or reach "game over". 

Micaela Mantegna: And hi. I'm Micaela Mantegna, a videogame researcher at the Berkman Klein Center at Harvard, and I will be this season co-host.

We are on Level 2: IP in the development phase. Today we explore the challenges of creating a new world within a videogame. From creating an architectural experience to providing historical details and characters, how does IP affect these decisions?

Today we will hear more about this on how to create a new world with Mácula Interactive. Our guest today is Paola Vera. Paola is an audiovisual producer graduate from Universidad de Las Américas, Puebla (UDLAP). For the past seven years, she has worked on several audiovisual productions that range from commercials to short films with international selections. Recently she started working as a Director of Mácula Interactive’s production team to develop “Mexico, 1921. A Deep Slumber”.

So, it's a pleasure to have you. Welcome, Paola. And we want to start this interview by asking, how did you start in the video games industry? How did you start with video games? Can you tell us a bit more about that?

Paola Vera: Yes. Well, first of all, thank you; thank you for the invitation, thank you for your time. And actually, it's a funny story because I'm an audiovisual producer. I studied that in school and that's what I've done for the past 7 years of my life, you know, I've worked on different productions that go from commercials to some short films that, like actually went to Cannes Film Festival. And it was a fun time, and then pandemic hit and well, everything sort of went down the drain, and we had to find new ways to be creative.

We were stuck at home for 2 years, and my friends, that are now my partners in the studio, we started like literally making like a video game club where we got together for at least an hour every day at 8 a.m. and we talked about what we've been playing, and what about those games we liked, and what about those games we imagine we could recreate on a story we've been working on.

From the pandemic we started going out a little bit and we rented a small office in Mexico City Center; and just being consistent, you know, like showing up at the same time and talking about the things we said we were going to talk about and just like pushing it through. And that’s how the story of Mácula started, you know.

It sounds wild, and it was, and it is, and it's probably still gonna be. But that's how we got in here. We actually just like, gathered everything we knew about producing things out of visual products and put it into video games and grabbed a huge mirror and said “You are a great ignorant about this, so you might as well ask people who know”. And we started making a lot of friends in the industry through a documentary; we did know how to make documentaries.

So we reached out to Mexican industry, Mexican developers, Mexican Academics that talk about games, and we made a small documentary series that's called “Ludens” like Homo Ludens, you know, but just Ludens. And that's actually how we got into the industry like literally knocking on doors, and said “Hey, you seem like a really cool person, could you just teach me about what you do”, and that's how we got here.

Allison Mages: That's super, I have to say, and also it's so inspiring to go from film to video game and think about how these are, you know, hugely creative industries, but still quite different. And it sounds like you've been on quite a journey. So I have to ask, maybe just to get us started, when did you first hear about intellectual property?

Paola Vera: I actually first heard about it in school when I was like in University, because, yes, cinema has a lot to do with intellectual property, and I've been fortunate enough to grow in a family with lawyers, so I've always been like, close with the law and, you know, what has to be done and how people have to be smart about it.

So when we started the company, the first thing we knew we had to do was register the idea, and our characters, and we also knew it was a complicated thing because it's not an original story from the point of view that it's a historical story. But we did write original characters and our story is actually a fiction written into Mexican history, you know, so I called my cousin and, you know, got advice. Yeah, and I try to get close to people that know most because I tend to not know a lot. And I actually like to know people and what they know about things; so that's how I heard about intellectual property, how to take care of it and it's been a long journey.

We've known and we've met a lot of different teams that work on it and right now we are comfortable enough with the team that's been real close and guiding us through this maze of lawyers and IP things; because it's a maze, that's what it is.

Micaela Mantegna: Absolutely. I wanted to touch upon something you were saying about Mácula, and the way that you want to create or recreate history, because it's a studio that prides themselves on this connection with Mexican history and traditions, and if I can quote you on this, it says you “have the goal of reconnecting us with what it means to be Mexican”. How do you see this about games helping to preserve and transmit culture, in particular in our region in Latin America?

Paola Vera: It's a great question. It's a beautiful question with a beautiful answer, actually. And that's a huge recommendation that I always tell everybody that tells me “How do I get into the game industry?” Just get into games jams; start making games as quick as you can.

And that's actually how we got the idea that history and art and cultural patrimony can be preserved through video games. There was a game jam that was organized by “Mexican Digital Cultural Center” and the Institute of …, oh my God, this is difficult for me, I'm sorry, the Instituto Nacional de Antropología e Historia (Mexican National Institute of Anthropology and History), and they made this game jam or organized this game jam for people to come and design games, talking about the Cathedral (Mexico City Metropolitan Cathedral), and that's how we made one of our other games that's called “Andamios y Restauradores”, that's builders (restorers) and scaffoldings, I think that's called, yeah, builders (restorers)  and scaffoldings. So it's a resource game where you have to help restore the facade of the Cathedral, you know, you have to understand what are the risks that a patrimony holds while being outside in the natural world, you know, there's wind, there's water, there's birds, you know. And that's when we said “Huh! So you can actually protect history and help divulge history through video games”.

And that's what like planted the seed in us to say “Maybe we should be doing games about this, not about anything else. We should be doing games about this because we like art. We really do like it. And we like history, and we like culture, and we like games”.

Micaela Mantegna: And I wanted to touch upon something you said, how video games connected you to your friends during the pandemic because there is a lot of people that says that video games, and particularly in our culture, like “you are losing time playing video games”, and what do you say to a person that's like a skeptic about video games and how can video games help society and connect society and connect people?

Paola Vera: I guess we forget how to play, you know, and that play is a part of, an innate part of life, and that we should not be thinking of game, of playing, as the counterpart of productiveness, you know, because games do not stop you from being productive; you are not like staring into a blank wall while you're playing a game, you know.

There are things going on in your brain infinitely, you know, and there are emotions going through your body, so it's impossible to be losing time when you're playing a game and you're actually, a lot of people usually tell me “Hmm, you lose a lot of time learning how to play a game”, and I’m like.... yeah, of course you have to learn how to play a game. It takes time; it takes time to learn the rules. But I promise you, if it's a cool game, you're gonna have a reward, you know. And I guess we have to stop seeing games as a counter power, as a counterpart of our productiveness. We are not wasting time while we're playing. We are working on ourselves and our creativity and our mind and working our mind through new things, you know, that you don't see every day, and that you cannot see on your computer at work for 8 hours a day so, dare to play, friends, dare to play. That's what I would say.

Micaela Mantegna: That amazing. And if I can put a personal note on this, because I think that games allow you to try different skins, different versions of yourself. And this is something personal on me because I'm a lawyer, and when I decided to go into video games, people were saying, particularly in Latin American, it's like “Oh, you are throwing away your career. Why are you doing video games? Because this is not, as you were saying, it’s not productive”. And I kind of discovered this passion playing “Mass Effect”.

Mass Effect is one of my favorite video games in the whole world and one of the things that was there about Artificial Intelligence was the thing that sparked my research on AI Ethics.

So I really, really loved that quote about “You are not staring into a blank wall while you’re playing”. That’s kind of super super fascinating.

Allison Mages: I see it, as, you know, innovation as this is just a new way to look at the world, right? So when you're thinking about solving a problem, right? Just because you're sitting and playing doesn't mean you're not working on those kinds of skills.

Micaela Mantegna: And also something really important that you say, you’re relying on a network of peers that wants to help you and wants to make you succeed. And sometimes being, and this connects with what Allison was saying about innovation, sometimes when you are the only one doing it, that shows you that you are on the correct path because you are doing something that nobody did before, And that in the long run is going to make you successful and that's what innovation is all about, like creating new paths across things that we don't know.

Paola Vera: Grabbing the machete and going into the jungle, you know?

Micaela Mantegna and Allison Mages: [We’re going to use that quote, I love it. Absolutely.]

Allison Mages: So I'm going to switch gears just a little bit because Michaela told me I could ask a couple of questions too. Just kidding.

So your games use historical elements as part of really like a real core part of what you're building. So what kind of challenges are there when you're using real buildings and real art to building a game?

Paola Vera: It is not an easy job. It is not an easy structure that you have to build, because that's what it is.

Like, recapitulating a little bit. Because of how Mácula started, it all started like really romantic, you know, so we built these prototypes thinking that we were gonna work with these people and that everybody's going to say yes and that everybody's going to jump into the project and everything's gonna be great, you know.And then you go out there and it's like “Okay, it's gonna be a little bit harder than that”. But it's not impossible.

So what we did was we narrowed it down, just like thinking about it like a game design, I think, you have to go to the simplest thing, the most basic thing for your game that was like “Okay, we're talking about Mexico. So what is the Institution that we need to approach first?” You know, like, how are going to talk about this?

So since we already had the background with INAH, that is the Instituto Nacional de Antropología e Historia (Mexican National Institute of Anthropology and History), we started knocking doors over there and like “Hey, we want to do this. Do you know who should we ask about, you know, like who are we gonna ask permission to?” And they started pointing away.

And actually I was really lucky to get into a conference about intellectual property, and an institution and some lawyers here in Mexico that were kind enough to share their experience. And it was really interesting because they've done this for a couple of movies, historical movies.

And I said “Okay, that’s what I need”. I need that one, you know, and I called them up and I said “Hey, I have this project. Would you be kind enough to take a look at it and just show me the way?”

And they were really kind enough because people are kind, apparently, and they showed us the way, you know, they read the entirety of the script, they went through every character, every piece of art, every piece of document that we were mentioning it in our script, and we worked with a sort of a, [how do you say semáforo in English?], the lightstop, like the red, yellow, green, you know, we worked with those; we have like a code.

So we have the greens that are like a “go”; those are not a legal problem. Just go with it. So we started working there. This is a go, just put it into the game, put it into the game, put it into the game.

Then we have on a yellow that's like “that's a complicated thing”, because you could talk about a building through this way, or let's talk about or get this permission, or you could not ask for a permission, but maybe paid this quote, or you could, you know, like these are your options, your legal options. And when we have those legal options we just, my partners and I, just think about it, we guessed what's the best option and just work through it, you know. And that's got us really far. That's got us, actually, there's a lot of bureaucracy that actually works. So just stick to it and be consistent and write the emails, fill out the forms and pay the things, you know. And it's slow. It is really slow, but it works.

And the things that we have in the red tier, the ones that are like really dangerous are mostly people and names, you know, because of morals (image rights) and that kind of stuff. So what we did was we actually started approaching a more humane way. The lawyers were like, we could do this 100% legally, like actually make a requisite, and ask the families through this and this and this law I am asking for the usage of your family's name in my video game; or you could like, call them up and say “Hey, I'm working on this. Do you mind taking a look because we're actually interested in putting your family member here and there, and blah blah blah!”

So that's how we’re doing it. That's how we've approached some members of their families, and that's how we are working, because we intend this to be a little bit more humane. We don't want it to be like really institutionalized, because we like people, and the more we get to know about them, the more input we get to put into our game; we don't just want the name, we do want the story, you know.

Allison Mages: I love that because I think that sometimes when we talk about legal issues it's really easy to get stuck on those, you know, checklists. “I must write this very official looking thing” when picking up the phone is just as good, right? I mean it sounds like a lot. My guess is, you got a lot more out of those exchanges by calling them, rather than sending some strange registered letter that they probably would throw away.

Micaela Mantegna: And also I like what you said about because you started like “Well, this is a mess. It's really complex”, but you started like “let's do it and take a step, one step at a time”, and you created a system like with three simple things like the three lights. This is a really concrete advice that anyone can take like, okay, I can now break down my things into three categories and then work from there, and something like it's really important: Where? When did you do that? Because you said that you had the script, and you haven't still produced anything before checking, right?

Paola Vera: We did that like parallel, you know, we where still modifying some stuff in in our script and we were like these are the things these characters gonna say; these are the themes that are going to be touched; these are the places he's going to be at; this is the things he's going to be wearing; these are the things he's going to be touching or interacting with.

And that's what we sent over, and it's a continuous work. You just can't do it one time, it's a thing that just evolves, and as much as the game is evolving, the legal part is evolving; so it's like a living thing. You just have to keep pushing those two balls, the production ball and the legal ball, the accounting ball and the funding ball, and, you know, all those different balls.

Allison Mages:  To me, it's so refreshing to see that you don't have to be overwhelmed by this, and that you can really just go at it step by step, breaking in trunks. And the fact that you were doing it so early like Micaela was saying, makes a tremendous difference, because before you're so far along a path you can't go backwards. But why did you think to go that early? Because I think a lot of studios think about this later in the process.

Paola Vera: Because it was, it was really clear, like, I mean, Diego Riviera is Diego Riviera, you know. It was really, really clear that I was going to have to do some legal research here. And we were talking about using the Mexican flag. So I thought, this is going to have a legal, a really strong legal side.

So, as I said, I'm a family grown with lawyers. So I just called my cousin, you know, like “I think this is going to be important, you know, so help me out”.

Micaela Mantegna: It's literally the in-house Counsel. It's like the cousin is the in-house Counsel.

Allison Mages:  Paola, I have a question about how those game jams work a little bit. You know, you mentioned that you had your core team, then you had some other people jump in from other places, which I think is great, to be able to pull on a bunch of different resources.

In that kind of situation, how do you think about ownership of what the product is that comes out of it?

Paola Vera: It was actually a conversation that I had to have with these other people that jumped into our team because we set out to the game jam to work us, you know, like we got our team, we do not meet other people, right? And then we were like “Wait a minute, why not?”, you know, and they jumped in, and I was like “Okay. I just want you guys to know that we are building a studio. So we are here as Mácula, not as Paola, Luis, Daniela, you know, we are here as a team, and whatever results from this, we want to put it on our website. Is this Okay with you, do you have a big problem with this?” And they were really cool about it. Of course they are credited on what they did on the game, but they were Okay; this was a conversation we had because obviously it's complicated. But I wanted to be straightforward and just like “Hey guys, if you're not okay with this, would you mind just like looking for another team, because we're really looking forward to this”. And no, they perfectly understood, and we work together, and I think the final result was lovely.

Allison Mages: So I think it's really, so to me the message is: Ask first, right? If you ask first, it's probably not so bad.

Paola Vera: Ask first, be kind first at first, and destroy them later, I guess.

Allison Mages:  With the machete.

So I like that you're pulling on this incredible community, which sounds like friends, peers, and it's super collaborative. When you're building out this team and you mentioned sometimes you're using external partners, I'm not sure if you mentioned the figurative or literal sense that they weren't sitting in your studio, what kind of arrangements do you have with them as you try to work on this game? Do you have contracts or is it more of a handshake?

Paola Vera: We do have contracts, yeah. We have to have a legal base like, the least you can do is have this written in a paper, and everybody signs it, you know, but everything we did was with a legal advisor, so we, I think, that we've done a pretty solid legal base that we're working on. So everybody knows what their responsibilities are, what their responsibilities with the studio are, and we go from there. If there's any doubt just like “Here, it says. You signed”.

Micaela Mantegna: “Ask this paper”.

But it's really cool, because it takes a lot building a studio and working like 24/7 with your partners is like, can be exhausting, and frictions can arise. So, having everything noted down can also help that process of “Okay, this is what you were supposed to be doing, and this is what we are expecting you to be doing”. And they can help that, because people think sometimes that legal is like “Okay, we are not friends anymore, because we have this on paper”, and maybe that can actually help to keep that state of peace within the studio.

Paola Vera: Yes, and I also think that the only way that you can actually make your studio evolve into an “indie” that's actually producing something for like, for Xbox or PlayStation, or like Steam; like actually doing business, you have to be a registered business.

So do not be afraid to like, register your business out there, like “Get your Tax ID (R.F.C), man. Get that number, make your business legal”. Because if not, I could not have been like an Xbox partner or a PlayStation partner, because you did not registered your business.

Allison Mages: Why not, right? I mean, why does this has to be complicated?

So one of the things, I think you mentioned at the beginning, Paola, was that you did register some intellectual property. Can you tell us a little bit about what you chose to protect and why?

Paola Vera: Yeah, it was a complicated thing because I actually asked like “Okay. So I want to register right now, my script, my original characters and blah blah blah, but what about if they change? What about if Juan loses an arm in the game, and now he doesn't have an arm, I don't know, like, you know, or a kid grows up in the game and looks completely different than the tiny character it just registered”. And so he said “Oh, yeah, you have to register that, too”. And I was like “Oh, thanks”.

So what I did was actually another thing sort of like the lights, the red, yellow, green. We did the basics; the original characters, the script and the logo, the name, you know. And then we worked for a couple of months more, more than a couple of months, worked for like 8 months, almost a year, you know, without touching that. And then I knocked over on the lawyer and said “Hey, we got like four levels now built. What's going on, should I be registering this?”

And I think you can, and I think you should. But it is also a thing that you should plan about, because it costs money.

And I think you should also plan when to register new things when you are final on them. Because video games are really iterative, you know, they just go over and over and change and now go back. And now the level is three rooms instead of one, and, you know.

And the advice that I got was: reach your milestones and reduce your milestones; whenever you have final milestones that are like, really important and you are like “Oh, yeah, this is done”, go and register that. If it's relevant, obviously, you know; and that's what we've done.

Micaela Mantegna: And it takes like a whole lot of passion, a lot of organization, and, Paola, you know, we can see, and everyone that meets you can see that you have all of those things, and that you're going to be successful, and we wish you, like, nothing but the best for your project, and we want to thank you so much for sharing all these insight and wisdom with us today, and if you can close with like a little quote or advice, you gave us so much, but a little advice for those that are just starting this path. What that would be?

Paola Vera: The most important thing about a thing, an idea or anything, is the passion you put into it. If you're not really passionate about your project, I don't think it's gonna get very far, but if you can share a little bit about that passion with at least one person, you're winning.

Making games in Mexico is for the brave, is for the passionate and is for the really organized people, too. And so I would say “Yeah, don't be afraid, just jump into it and do the job, do the work, because it's actually a work, a job”.

Micaela Mantegna: We all know that you can so, absolutely.

Thank you so, Paola. It has been wonderful to have you.

Paola Vera: It has been wonderful to be here. Thank you. Thank you so much for your time and for the invitation. It's been really great.

Allison Mages: So as Paola said, developing a game and thinking about IP go hand in hand. Putting it together for us is Professor Gaetano Dimita and his PowerUp introduction. Gaetano, to you.

Gaetano Dimita: During the development phase, your creative process will be fluid and your video game constantly evolving. This makes it the ideal time to make changes, to maximize intellectual property protection of your original creation and to avoid infringing other people's IP.

This is why it's always good to think about IP every time you reach the point in which you're sure or relatively sure that the content is not going to change in the final product.

In order to facilitate this process, it will be important to raise awareness about IP amongst your team and to include IP clearance and protection strategies in your milestones.

“IP clearance” means checking that you have the rights you might need to launch the video game safely, and start with those elements that will be expensive to change later on. For instance, the title of the game, the name of the main character, the plot, the story line, the engine, or the software you're using.

It will be easier if you kept your records. Remember, we discussed about it; we discussed it last time.

During your IP clearance, and in order to determine which assets are OK, which one are a no-go in the sense there are really high risk of infringement, and which others might need further analysis and risk assessment. You can follow a traffic light system marking the assets as red, yellow and green.

Another good practice at this stage will be to conduct as soon as possible what is called a “knockout search”, to check if there are any similarities with any pre-existing right. You might not be aware that the title of your game is already a registered trademark by a competitor, or the name of your character.

The sooner you find out, the better. Because you will have to change them eventually, you will have to apply for a license in order to use them down the line.

And a good advice is, for instance, to immediately type in your favorite search engine, the term that you want to use and to find out whether or not someone else is using or, for instance, conduct a quick search on the free WIPO databases.

The other side when it comes to protecting your video game, in copyright the process is straightforward and as there are no formalities, and that's the majority of your original creation, are going to be protected by copyright. For trademark and design, you will have to continue to do what you started doing in the constant phase to ensure that titles, names, particular symbols, are not similar to the one already registered by competitors. Because not only there is a risk of infringement, but also these similarities will make it more difficult for your creation to be fully protected.

If you have to change something to avoid paying a license or to increase the scope of your protection, it's better to do it now.

Also, if you're doing something different and very innovative, this is the time to talk with a patent attorney to determine whether there is scope for a patent application.

Clearance and protection strategies go hand in hand and if you want to apply for a register IP for instance, trademark or design, it's important to do it as soon as possible. But in this phase there might be still evolving and might not be advisable to register something and spend the money if you're not sure you're going to use it at all at the end.

Before concluding today's PowerUp, I would like to refer to the issue of using in your video game real world objects and persons, including historical one. This conversation and the clearance process goes far beyond IP as most countries have legislation on commercial use of their cultural heritage and historical figures.

If this is your plan, I would strongly suggest you to contact legal counsel just to get an idea of what the clearance process might look like, who is in charge for that assets in the countries in which you are taking it from and in the countries in which you want to distribute your video games in.

Micaela Mantegna: And that’s a wrap for Level 2!  Stay tuned for the next episode of Videogame development: A quest for IP. We’re going to hear from Tencent about the role of IP in launching videogames at a global scale and how it can work for you too, as an indie developer.

Allison Mages: Thanks for listening to Make IP your Business. This podcast is brought to you by WIPO, the UN Agency for IP that enables innovation and creativity for everyone, everywhere.

You can find all the episodes, download the PowerUPs, and join the community on our website. Check out the show notes for the links!