The challenge of IP rights as Netflix expands further into games

Netflix Games drawing on the power of its powerful intellectual property makes sense, but does it present any challenges? Marks & Clerk associate Erik Rõuk shares his thoughts

The challenge of IP rights as Netflix expands further into games

It’s been possible to enjoy games as part of your Netflix subscription since 2021 and with more users looking to fulfil all of their content needs in one place, Netflix Games is making use of it’s popular IPs by having them cross over into the world of games, with the likes of a Queen's Gambit title and Love is Blind.

But are their challenges ahead in terms of rights management and content quality of using those IPs? We spoke with trade mark attorney and associate at Marks & Clerk Erik Rõuk on the potential IP concerns around the streaming giant's future in games. Netflix has had a gaming platform as part of the service since 2021. Why do you think it is gaining more attention now?

Erik Rõuk: While Netflix broke ground on its gaming offering in 2021, it has so far taken a cautious approach, making sure that it adopts the correct strategy for its chosen mobile gaming niche. Netflix has been careful to try to avoid the pitfalls of exploiting its intellectual property in ways that do not resonate with what is very often in the case of popular streaming series: a loyal and enthusiastic fanbase.

Another aspect to consider is that a lot has happened since 2021 - the end of the covid pandemic has heralded the return of more traditional forms of entertainment and more varied opportunities for the exploitation of IP. Commercially, a comprehensive brand exploitation strategy requires planning to ensure that it continues to capture the audience’s attention without oversaturation. Successful examples include the Hogwarts Legacy game, which complements but does not compete with other outlets, such as the live performances of Harry Potter and the Cursed Child, the film releases of the Fantastic Beasts series and the rumoured intention to produce further films focusing on the adventures of the titular character.

On the other hand, Disney has invested heavily into expanding the Star Wars universe on the small and big screens while offering a distinct gaming offering through its Battlefront and 'Jedi' franchise titles.

Given that Netflix already owns the IP rights to many popular shows/films, it seems logical that they will use these but what IP concerns do you think they may face?

Potential challenges may arise from owners of other similar IP rights. Even though Netflix may own rights concerning the production of the series and delivery of streaming services, this does not necessarily guarantee that conflicts would not arise when it expands its offering to new areas, such as gaming. Due diligence considerations would require the platform to clear its IP rights, such as trademarks, before launching new products, potentially leading to an infringement risk if earlier rights subsist with other parties in the sector.

It is also important to note that IP rights generally tend to be territorial in nature. For example, protection in the US would not automatically extend to the UK and vice versa. The same applies to other territories where Netflix may want to make its gaming titles available. Generally, game developers will want to make their products available globally, and even though Netflix is likely to only deliver its games through its streaming platform, they will still need to consider potential conflicting rights on a country-by-country basis.

How can Netflix combat these concerns, what needs to be done, and what should they be focused on?

A robust trade mark clearance strategy would involve conducting searches and applying for appropriate protection in those territories where they want to make their games available.

In some instances, this may involve commercial agreements with holders of earlier rights if no legal means are available to ensure safe exploitation of IP otherwise.

Do you think we will see more platforms incorporate interactive experiences into their pre-existing services?

Yes. Gaming is a fast-growing multimillion-dollar market, and various options will be available to rights holders. Traditional gaming platforms like PC and console gaming have increasingly been supplemented with mobile and virtual reality offerings.

At the same time, consumers are increasingly attracted to “one-stop-shop” offerings where a single subscription can cater to their different entertainment needs. Providing a unified platform for streaming and gaming also allows companies like Netflix to retain more control over their IP and associated commercial revenue.

What do you think the future of Netflix games looks like? And how do you anticipate it going forward with the use of IP?

Netflix has focused on mobile gaming so far, but there will certainly be audiences hoping to see more sophisticated and fully immersive gaming experiences. A step into the production of triple AAA game titles may potentially result in Netflix starting to provide subscription services for more traditional games on PC and consoles. This may enter the platform into more direct competition with Amazon, which operates its own game development studio, and game distribution platforms like Steam. It is certainly a potential route for increased revenue, but it will also entail commercial (and legal) risk, which may explain the platform’s relatively considered approach to expanding its gaming offering.

Future game development may happen via licensing agreements rather than through in-house development, however, this will most likely still require Netflix to ensure that the IP is available for such exploitation in the intended markets.

Overall, legal aspects are as important to consider at an early stage to ensure that the IP is exploited in a way that resounds with Netflix’s existing audiences and fanbase.

Deputy Editor

Paige is the Deputy Editor on who, in the past, has worked in games journalism covering new releases, reviews and news. Coming from a multimedia background, she has dabbled in video editing, photography, graphic and web design! If she's not writing about the games industry, she can probably be found working through her ever-growing game backlog or buried in a good book.