Protecting Your Work: Copyright, Trademark And Patents For Game Developers
Safeguarding Your Games and Assets
Understanding intellectual property for games
Copyrights: Automatic protection for original works
As a game developer, your game code, artwork, music, scripts, and other creative output are likely protected by copyright automatically when fixed in a tangible medium. Registering your copyrights with the U.S. Copyright Office provides additional legal benefits. Include copyright notices with your games and source code to inform users of your rights.
/* MyGame - a roleplaying adventure game Copyright 2023 MyStudio Inc. */
Trademarks: Protecting logos, names, slogans, etc.
The names of your games, studio, characters, logos, slogons, and other trademarks should be registered with the U.S. Patent and Trademark Office (USPTO) and used consistently with the appropriate TM or ® symbol. Conducting trademark searches beforehand helps avoid conflicts with existing trademarks.
Patents: Protecting unique mechanics and systems
For truly novel gameplay mechanics, interfaces, algorithms, and other inventions, utility patents may provide exclusive rights for up to 20 years. Consider patenting inventions central to your game and studio success. However patent applications are expensive to prepare and prosecute. Retaining a patent attorney to draft claims and navigate the USPTO process is recommended.
Enforcing your intellectual property
Detecting violations and sending DMCA takedowns
Routine searches for potential copyright or trademark infringement can uncover issues early. When found, formally contacting sites and services hosting the infringing content through DMCA takedown notices or cease and desist letters can often lead to prompt removal. Be prepared to file lawsuits if extra encouragement is needed.
Suing for copyright/trademark infringement
In cases of blatant IP theft and piracy causing meaningful damage, partnering with an IP litigation firm to pursue copyright or trademark infringement lawsuits sends a strong signal to violators. Possible outcomes include injunctions, seizures of infringing goods, awards of damages/lost profits, and recovery of legal costs.
Cease and desist letters for patent infringement
Those utilizing patented game technologies without permission should be contacted through official cease and desist letters demanding they stop infringing activities or risk legal consequences. If ignored, filing patent infringement litigation usually becomes the next step, seeking court-ordered injunctions and substantial monetary judgements.
Avoiding infringement yourself
Vetting potential trademark conflicts
Choosing distinctive names and marks for your games through comprehensive trademark searches reduces the chance of conflicts arising later. Even common words can cause issues if existing trademarks are too closely related to your planned usage in context. Erring on the side of caution upfront prevents headaches.
Reviewing existing patents before implementation
Performing clearance searches looking for relevant past patents is wise before investing in developing technologies and mechanics which might tread on existing protected IP. Identifying potential conflicts early allows pivot opportunities before sinking extensive time and money into something legally risky.
Licensing third-party works properly
All multimedia works and technologies integrated into games should be carefully vetted for licensing obligations. Utilizing first-party assets is ideal. For third-parties, review terms closely and follow requirements for attribution and compensation. Unauthorized usage often results in legal action.
Maintaining Control and Ownership
Structuring your studio for IP ownership
Using work-for-hire and IP assignment agreements
All employees and contractors should sign robust work-for-hire and IP assignment agreements clearly establishing your studio owns all resulting IP deliverables. Standard templates help, but customization maximizing rights acquisition is recommended. Update agreements as needed when new projects commence.
Proper corporate structuring
Establishing the studio as a LLC, corporation, partnership, or other formal business entity allows for centralized IP ownership and provides liability protections. Work with attorneys to incorporate based on your situation. Maintain corporate formalities and update filings as the business evolves.
Open sourcing vs. retaining copyright
Releasing games and code under open source licenses cedes certain copyrights to enable public usage under defined terms. This fuels collaboration but relinquishes control. For key IP, retaining all rights through restrictive EULAs is generally preferred to ensure maximum exclusivity and enforcement options.
Transferring rights through contracts
Licensing IP without giving up ownership
Using licensing for secondary usage preserves ownership of IP while allowing its utilization by others per negotiated contractual terms. Craft agreements benefiting your business first while sufficiently incentivizing licensees as needed to foster acceptance.
Selling exclusive/non-exclusive rights
Selling the rights to use IP outright can make business sense as well but permanently forfeits control. Seek exclusivity and maximum value if auctioning rights. Include contractual stipulations allowing for clawing back rights if performance milestones aren’t met by buyers.
Acquisition agreements and IP representations
In entity purchase or investment scenarios, the inclusion of thorough IP ownership representations and restrictive covenants are crucial to prevent post-close issues. Define all core IP and obtain affirmative guarantees of sole undisputed rights.
