4 Things Every Indie Game Developer Needs to Know About Copyright & IP

Photo Credit: Super Hypercube by IndieCade used under CC BY-NC 2.0
Photo Credit: Super Hypercube by IndieCade used under CC BY-NC 2.0

If you’re an indie gamer and have yet to encounter copyright issues, don’t worry, they’re on their way.

Copyright is everywhere and the indie gaming world is no exception.

Though its rapid development has given it a bit of a pass in the area of copyright insurgence, the gaming industry is no stranger to copyright issues.

Take for example the case of Galoob Toys v. Nintendo in 1992, a.k.a the “Game Genie” case.

In this case, courts ruled that altering a game’s content in a certain ways did not violate copyright laws. It resulted in gaming giant Nintendo paying 15 million in losses to the little guy, Lewis Galoob Toys, Inc.

This case has a set a precedent in the gaming industry that basically means that all gamers, from the big wigs to the independents, must guard their creation with a certain amount of informed vigilance. In other words, to avoid common copyright pitfalls, indie gamers must educate themselves on the main sources of legal protection for their original gamer creations.

That said, take a moment of your time to peruse these four things every indie developer needs to know about copyright and IP.

1. Registration means everything.

Photo Credit: Copyright Registration Certificate by Daniel Foster used under CC BY-NC-SA 2.0
Photo Credit: Copyright Registration Certificate by Daniel Foster used under CC BY-NC-SA 2.0

We all know that one of the biggest obstacles involved in being an indie gamer is lack of resources.

This often means playing bootstrap game to make ends meet and piecing together the priorities of your game development in unique and creative ways in order to get to do the work you love.

However, one aspect of gaming creatively that should not be shortchanged is copyright.

If your eventual goal is to seek acquisition from a bigger fish company and walk away with thousands, nay millions, in your indie gamer pocket, take note. Mergers and acquisitions lawyer are the least likely to mentor you for the fulfillment of your dreams. Instead, why not make copyright registration a top priority from the get go? Here’s why.

Copyright is based on written and formal agreements and forms recognized by the U.S Copyright Office and outlined in the U.S. Copyright Act. Formal arrangements must be made if you are to seek legal remedy when you spot another gaming company highjacking your material or stealing your originality.

This involves applying for a registered copyright from the Copyright Office.

Without registration, you still have rights, of course. The only difference is that these rights are harder to uphold in court in the event copyright infringement becomes an issue. Also, if someone infringes your game before it’s registered, you could miss the chance to receive attorneys fees and statutory damages, and statutory damages could be anywhere between $750 and $30,000. Keep this in mind.

2. You don’t own the materials others contribute.

Photo Credit: 2011_05_15_3384.jpg by Jim McGinley used under CC BY-NC-ND 2.0
Photo Credit: 2011_05_15_3384.jpg by Jim McGinley used under CC BY-NC-ND 2.0

Everyone knows that in today’s rapidly swift world of speedy technological development, collaboration is key.

Indie gamer developers would do well, however, to watch their steps when it comes to inviting others to contribute work to a completed end product.

This is because copyright issues involving contributions from others (yes, even friends) could get tricky. If you’re an independent developer and you receive graphic material, music, sound effects or written assets from others, you don’t own these materials. Copyright law says, in most instances, the ownership rights to such material belong to the original creator.

Therefore using these materials without prior transfer of ownership rights could mean exposing yourself to costly copyright infringement liability – which leads to the next conclusion of this post.

3. Know and be careful with the concept of derivative works.

One of the main issues in the Nintendo case mentioned earlier was whether the altered game content created a derivative work. This is significant because copyright laws extend to protect derivative works – works based on one or more preexisting works.

A copyrighted game would grant exclusive rights over the initial creation as well as all derivatives.

However, an important distinction must always be made when it comes to copyright and derivative works. For instance, the original creation of others may not be considered derivatives when that work is an authentic creation.

This is why, as explained above, the graphics, music, sounds, or written asset contributions to your gaming project would mean that you do not own all aspects of the game you created.

Another way that derivative works could be a problem for gamers is when the game you created does not have enough original content to be considered a non-infringing work. Under such circumstances, gamers would need to secure representation – a lawsuit could be on the way.

A number of bigwigs in the gaming industry are constantly monitoring new releases for possible infringements. If yours happens to be located, it could mean costly litigation in the future.

A Word on Joint Authorship

A derivative work is vastly different from a jointly authored work. Joint authorship happens when there are one or more original creators for a game. Legally, this means that each developer has an equal and undivided right to ownership. In other words, each owns his own share of the game as well as part of the share of all the other owners.

Joint authorship also affects how the ownership rights to a game can be transferred. Because joint authorship differs from outright ownership, exclusive licenses, say for a company interested in marketing, selling or distributing the game, would require the agreement of each developer.

So, if you and a few friends are working together on a game and can be considered original creators of the work, joint authorship rules could apply. Otherwise, gamers must be careful to transfer ownership rights for all contributors before proceeding with sale and distribution.

4. Beware. Willful copyright infringement is no joke.

Photo Credit: 2011_05_15_3374.jpg by Jim McGinley used under CC BY-NC-ND 2.0
Photo Credit: 2011_05_15_3374.jpg by Jim McGinley used under CC BY-NC-ND 2.0

Ever wondered what’s at stake if an indie gamer decides to violate copyright laws?

The answer is, quite a bit.

Anyone in violation of a copyright is subject to both injunction, impounding and actual damages plus the duty to pay back any profits made from the infringing game.

An injunction basically stops any new work on the games development. This stops all infringement including an new marketing or publicizing projects. Next, impounding means that all copies of the infringing game could be confiscated and held. Lastly, actual damages to the owner of the copyright must be paid as well as any and all profits made on the game.

Obviously, these costs can skyrocket, especially if the game, as infringing as it is, turns out to be popular. Now imagine being found to be a willful infringer. In that case, expect costs and damages to balloon up to $150,000. Clearly, not a risk any indie gamer wants to take.

So what’s the best way to ensure that copyright does not become a game developer’s nightmare?

Keeping Copyright In Sharp Focus

An indie gamer has a number of obstacles to overcome – but lack of originality shouldn’t be one of them. Lack of resources, an unstable economy, a flooded market and big wig competition are all part of the gaming game, but copyright issues don’t have to be.

The best way to ensure your work is protected and to ensure you’re not overstepping the boundaries of someone else’s rights is to recognize the vital importance of originality and remain committed to it. Keeping this central tenet in sharp focus could keep even an indie gamer well ahead of the game.

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About the Author: Veena Veana is currently a legal document specialist, freelance writer, poet and community activist residing in west Texas. She earned her JD from Chicago-Kent College of Law, specializing in Intellectual Property, and holds a degree in Microbiology from the University of Texas at Austin.