I was invited to be a guest on the Freaking Cool Indies podcast by Mike Arone. Mike interviews game developers about their experiences in order to empower other indie devs. The topic of our discussion was some IP law basics for game developers. In this post I’m giving you a summary of what we talked about, but you can listen to (or watch) the full episode here.
The Importance of Intellectual Property
Intellectual Property is a game developer’s most valuable asset. The value of any studio – whether a solo indie developer or a massive company like Nintendo – isn’t the company’s physical assets or the real estate that it owns, but the intellectual property that it owns.
Intellectual property is creations of the mind. It refers to things that you create. The law provides some protection over these creations, so you can use them and have protection against people stealing your work. The most common forms that this takes is copyright, which protects artistic expression; trademark, which protects brands and their identity; and patent, which protects useful inventions. Of these, copyright is the most common for game developers, since every aspect of a game, including the game as a whole, is protectable by copyright law.
Copyright Protects Artistic Works
Copyright provides protection over artistic works. It covers everything in a game. This includes visual assets like sprites, drawings, 3D models, audio assets like music and sound effects, the code that makes your game work, and even your game’s story and world. Video games are considered “audiovisual works” or even “literary works”, so they’re covered by copyright.
Copyright extends to other rights, including the right to produce derivative works like sequels and spin offs. This is the main reason why fan games aren’t legally protected, and are usually infringement.
Of course, copyright has limitations. Copyright protects the specific expression of an idea, not the idea itself. This is often called the idea-expression dichotomy. In other words, you can protect your specific platformer, but not the idea of a platformer as a whole. It also means that you can’t protect an idea until it’s more than just an idea, which would be the expression of that idea.
While copyright is automatic as soon as you create something, the protection is fairly limited. Registering your copyright is necessary if you want to go to court or other legal processes, and it acts as a way you can tell the world that you made this thing so they need to back off, so anybody trying to steal your work is legally “on notice” which means they should know that your work is yours.
Trademark Protects Your Brand
Trademark provides protection over your game and studio’s brand. The idea is that we don’t want customers to be confused about the source of goods, for example, thinking they’re buying a game from your studio when really it’s some other studio that makes bad games using your name or logo.
For game developers, this usually concerns your game’s name and your studio’s name. It can also cover logos or tag lines, or really anything else that could be considered a part of your game or studio’s brand and can identify the source of the goods.
In order to register a trademark, you have to be using the mark in commerce. Just announcing your game isn’t enough to be doing this, but selling your game is. You can register a mark as an “intent to use” basis, which means you intend to use the mark soon. This lets you reserve your name before you actually start using it, but you have a limited time to actually start using it in commerce.
Keep in mind that your studio’s name – even if you’re incorporated as a legal entity like an Limited Liability Corporation – is different from your trademark. Trademarks are unique and have to avoid being too close to one another to the point where there is a likelihood of confusion between them, while LLCs just have to be unique within the state they’re incorporated in. That’s why it can save a lot of headache and money to have an attorney perform a proper trademark search before committing to a name. It’s much easier to change your name earlier in the marketing process than later!
Trademark, unlike copyright, also lasts forever as long as you’re using it. However, along with that comes a greater responsibility to police other people who may be infringing your mark.
When discussing this, it’s important to note that copyright and trademark get confused a lot. You can’t copyright a name, that would be trademark!
Contracts Can Help Protect Your Intellectual Property
When you create something, you own it. That’s one big reason why as soon as you start working with other people a contract is important. Contracts can protect your intellectual property and make ownership clear from the start. With a properly drafted contract, you can ensure that everything in your game is owned by you, usually as a work made for hire. The alternative is that the game becomes a joint work or collective work, where everyone who worked on it owns the game, and that can get messy quickly.
When I’m discussing contracts, especially among friends, I like to emphasize that a contract isn’t something you need because you don’t trust each other. Contracts keep everyone on the same page, helping all parties understand exactly what is being agreed to, and then provide a record of what that agreement actually was when the money starts coming in. Contracts create clarity and predictability and set the rules for the agreement. A written contract is also required in order to make some agreements enforceable, like the previously mentioned work made for hire agreement.
One big type of contract that indie game developers should be familiar with is the independent contractor agreement. This is an agreement between two parties where one side promises to do work in exchange for something else. Usually this agreement will be between a developer or studio and collaborators like artists and musicians. Getting a good independent contractor agreement helps take care of potential issues like IP ownership and payment before work is performed.
All in all, the biggest mistake that indie developers make with contracts is not having one. Make sure you talk to a lawyer and get your bases covered. You might not think you need one when you’re working with your friends, but you really do.
Conclusion
Huge thanks to Mike for having me on! You can check out the Freaking Cool Indies podcast at his YouTube channel or wherever you get your podcasts, or check out his website here where he helps indies reach the next step and become indiepreneurs.
As always, you can set up an appointment with me using the form below if you’d like to get started protecting your own work.
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