Copyright explainer - Part 2

Controlling Copyright

Copyright control can be achieved, or at least maximised, by implementing a number of practical steps.

• Ensure that anyone who (1) writes original code, (2) develops any artwork or (3) writes any original music for the game, is either employed by the developer specifically for those tasks or has agreed to assign all the intellectual property rights (not just copyright) and waive all moral rights in any work created and used in the game, to the developer. This is particularly relevant where freelance developers or designers (or even friends) contribute to a game and even if these individuals have been specifically asked to contribute a particular type of work to the developer in return for payment or other valuable consideration. Unless some sort of compensation is given to the party transferring the rights (where he/she is not an employee) the transfer of rights will need to be structured so as to be enforceable in the event of a dispute.
• If generic game development software or other middleware is used to develop parts of a game, attention needs to be paid to the existence of any restrictive terms that apply to such use. This issue can sometimes also be relevant to the use of freelancers, who may use such middleware or generic engines and other generic developer kit without necessarily disclosing this to the developer.
• If the game includes any music, all relevant copyrights should be owned or controlled (eg by way of a licence to use) by the developer. The relevant copyrights are (i) the right in the lyrics and the musical score and (ii) the rights in the sound recording itself. If existing music is used within the game a synchronisation licence may be required.
• For games which use actors' voices (whether for localisation or the original voices), all relevant rights of exploitation in relation to the use of the voice recordings need to be acquired.
• If the developer is acquiring any content to be used in a game, some due diligence is essential to investigate who really owns the content being acquired and whether any open source software was used to create that content.
• The developers should ensure that everyone working on the source code as well as on graphics keeps a record of all work done. The source code of important features of the game as well as copies of graphic images should be kept on file in a secure and safe location. The best practice is to get a sealed envelope with such materials dated and signed by an independent professional (such as an accountant or lawyer) to act as independent proof of date. This can be crucial in the event of a claim of copyright infringement, where it needs to be proven that a particular piece of work was created before another. Developers should never assume that a work is 'just' an idea and that it can therefore not be protected. If a significant amount of time and resources have been spent on it, it is worth trying to protect.
• If sending any material out for marketing or for consideration by publishers, developers should always use non-disclosure agreements that clearly assert ownership of the intellectual property rights.

Importance of Copyright Control

A lack of certainty of control in relation to the copyright in the finished game can lead to difficulties in exploiting the game commercially.

Publishers who acquire content for exploitation will typically want an assignment of the copyright in return for which they will pay a royalty to the developer. On top of that, a publisher will usually require the developer to make certain contractually binding statements as to the ownership and control of copyright in the game.

If a developer agrees to assign the relevant rights to the publisher and also makes those statements, it can face claims of breach of contract from the publisher in the event that a third party claims to have an interest in the copyright in the game (for example, an independent contractor who has worked on the software and who has not formally assigned the copyright in his/her work to the developer).

The costs of fending off claims of copyright ownership (and almost certainly associated claims for a share of any revenue from the commercial exploitation of the game) can rapidly erode a developer's income. It is possible that many publishing agreements will contain terms pursuant to which the developer, in such a scenario, may have to reimburse the publisher for all costs incurred as a result of third party claims of copyright infringement.

Clearly, this is a commercial issue as well as a legal issue for developers and it is therefore vital that control of copyright is established before trying to exploit a game commercially.

Avoiding Copyright Infringement

Developers must pay some attention to ensuring that their programme writers and other creative personnel or contributors do not breach the copyright of third parties. Even with the sheer variety of games and themes available today, there is still a remarkable similarity in relation to the appearance of facets of fantasy worlds, weapons and characters.

The majority of this is clearly legitimate, since copyright can not protect the idea, for example, of a muscle-bound, sword-wielding warrior in leather gear. However, developers must ensure that its creative staff can show a clear paper trail for their idea, from conception to finished article.

The use of music in games can also create problems. Increasingly, games contain music which is more complex than the ring-tones of mobile telephones. Some games even use 'real' published and recorded music or commission original scores. In either case, it is imperative that a developer acquires the rights to use music in the manner it is intended to be used.

Conclusion

Effective control of the copyright in a game is an essential step to creating a commercially viable asset which can be exploited in a number of ways. There are a number of practical procedures that a developer can follow to minimise the risk that a third party has a claim to the copyright in a finished game or that a game inadvertently infringes the copyright of a third party.

Either situation would seriously impact the commercial viability of the game and may have knock-on effects in terms of exploiting another game from the developers which shares some of the underlying intellectual property.