How to protect the core ideas used to create your game software (intellectual property) is a hot topic these days. As you can see in the comments, whether or not to patent your ideas is a very controversial question. Many will make the—more cost efficient but riskier—choice not get a patent. Unfortunately for them, there is not a lot of information out there on how to protect their intellectual property without patents. This particular blog is intended to fill that gap, and help readers to understand the benefits they can get from using the—simpler and cheaper—copyright system.
Copyrights: The Basics
Copyrights were originally created to protect things like books, songs, and paintings. They were never meant to protect the general idea behind those songs or books. As the United States Copyright Office itself says, with regard to video games, “Copyright does not protect the idea for a game, its name or title, or the method or methods for playing it. Nor does copyright protect any idea, system, method, device, or trademark material involved in developing, merchandising, or playing a game.” Copyrights can, however, protect aspects of the characters in your game, such as their back-stories, their images, any artwork you’ve created for your game, and your actual software code.
Let’s work with an example:
If you have an image of a small and cute rat character in your game with a deep back-story and a bowtie, you could copyright that specific character’s name, his back-story, and stop people from using you’re the unique rat images you created. You could not, however, stop someone from using a cute rat in their game, even one with a bowtie, if their rat had a different back-story, and they drew up their own images of him. You can also protect any songs and in-game sound files you have in your game if you own the copyright to them.
So if Angry Birds had no patents or trademarks (only copyrights), I could make a competitor game that put birds through a slingshot, hurling them at structures. It sounds like a lot; I could basically get away with copying their game and selling it. But in fact, as I’m sure you know all too well, there’s an enormous amount of work that goes into game creation.
I could not, for example, use any of their music, the names of their birds or characters, the sound effects used in Angry Birds, any of the images used in Angry Birds, or their storyline. I would also not be able to copy the actual software code used for Angry Birds, aside from various coding that just about everyone uses.
Why You Should Take the Time to Copyright
Technically, anytime we create something, we own the copyright to it automatically; there is no need to file for a copyright, because we own it. But if there’s any doubt in your mind—and there should be—as to who created your material, or who could try and claim that they own your material, it’s well worth getting it copyrighted.
Here are just a few of the benefits:
- Copyrights do not cost much. While a typical patent can cost you upwards of $40,000, a simple copyright should cost you less than $250 (lawyer fees included).
- Copyrights are easy to get. All you (or your lawyer) has to do is download the appropriate forms for your copyright from the United States Copyright Office, fill in the blanks with the correct descriptions of your material, and send it in using certified mail. If you keep your certified mail receipt, and are awarded a copyright, your copyright will work retroactively from the moment you sent it at the post office. If you have any doubts about what to write in the blanks, have a lawyer write out your copyright application for you. The lawyer should be able to do it very quickly, and will probably give you a flat fee.
- Copyrights last. Unlike Design Patents, which—if awarded—only protect you for 14 years, Copyrights last for the entire life of the author, plus seventy years! Additionally, large companies like Disney, who really want their copyrights to the original Mickey Mouse cartoons to last, are constantly pushing Congress to make Copyrights last even longer. Basically, without an extension, the original Mickey Mouse cartoons would have entered the public domain decades ago. More on this here.
The Work-for-Hire System
For better or for worse—and many disagree on this—copyright law has developed a work-for-hire system where ownership of a copyright passes immediately from the actual creator of the work, to the person hiring the artist. As you can imagine, this is a very common situation. In the music industry, for example, professional hired-gun studio musicians will contribute their creative ideas to the song(s) they’re recording for the artist.
Because the musician is “hired to play on the track,” he or she loses all rights to the—normally copyrighted—material created. Similarly, many of the original video games were made by talented software developers as “works-for-hire;” the actual game creators did not own the rights to them, their employers did. As an awesome side note, the rights to these 1970s games will now be passing back to their original copyright owners—the artists themselves.
Dan Rogers of GamaSutra.com has made a handy list of classic video games whose copyrights may be handed directly to the original game designers, rather than whoever owned the copyrights originally.
In summation, copyrighting your material is always the right choice. It’s easy to do, low cost, and can protect a great deal of the artistic work you’ve put into your games. While the protection offered by copyrights aren’t necessarily as broad as other intellectual property devices, such as patents and trademarks, they are well worth the small amount of time and money required to get them.
– Jonathan Sparks, Esq.
Other Helpful Articles:
Article: “Hey That’s My Game”
Article: “Legal Issues for Game Developers”
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