In game development, understanding legal nuances is a key to success. A single legal mistake could cause a developer to lose hundreds of thousands of dollars. The story of Delrina is a prime example. The company faced significant financial losses and was forced to recall unsold products after losing a court case against Berkeley Systems over using their "flying toasters" image.
Video games are not recognized as independent objects of intellectual property rights but rather a complex blend of various types of IP: music, text, graphics, and other elements, each protected by copyright. Developers and publishers cannot use someone else's content without permission. Copyright provides the exclusive right to prohibit others from using the original work.
Obtaining copyright protection
Copyright automatically applies to any original work fixed in a tangible form from the author's creation. Although copyright registration is not mandatory, it can be vital in proving ownership during legal proceedings in some jurisdictions.
Copyright protects the form of expression of ideas, not the ideas themselves. This means that borrowing an idea without copying the specific form of its expression is not a violation.
Copyright protection depends on the jurisdiction, who created the work, when, and the first date of its commercial distribution.
An important point is the definition of "work made for hire," where rights to the created work belong to the employer, not the employee. This is often encountered in the game industry, where large teams create projects. However, this does not apply to video games developed by independent contractors. With such entities, it is advisable to draft an Agreement on the creation of custom-made intellectual property objects and the transfer of rights to them. This will help avoid future problems with IP status and who owns the rights.
How to avoid copyright infringement
Modern technologies allow for easy integration of materials others create in a game — movies, clips, music, graphics, photographs, and text. The fact that you have the technology to copy these works does not mean you have the legal right to do so. If you use materials protected by copyright that belong to other individuals without prior permission, the copyright owner may hold you accountable.
Most third-party materials you would want to use in your game are protected by copyright. Typically, a license is needed for legal use (more on this in our upcoming articles).
However, there are some cases where a license is not required:
This happens if:
1) your use falls under fair use
2) the work you are using is in the public domain (in fact, no longer protected by copyright, e.g., Erich Maria Remarque's "All Quiet on the Western Front" (originally - "Im Westen nichts Neues")
3) the material you are using is based on hard facts or ideas (if there is little creative component in it)
Fair Use
You do not need a license to use a copyright-protected work if you use it "fairly." Unfortunately, it is difficult to say whether a particular use of an original work is fair or unfair. Decisions are made in each specific case considering these factors:
Factor 1. The purpose and character of use. Courts are more likely to decide on fair use if it is used for non-commercial purposes, such as reviewing a game
Factor 2. The nature of the copyright-protected work. Courts are more likely to decide on fair use if the copied work is factual rather than creative
Factor 3. The amount and substantiality of the portion used. Courts are more likely to decide on fair use if only a tiny part of the protected work is used. If what is used is small in volume but represents value to the parties, recognition of fair use is unlikely
Factor 4. The effect on the potential market or value of the copyright-protected work. Courts are more likely to decide on fair use if the new work does not replace the copyrighted work
If your work serves traditional "fair use" purposes: criticism, commentary, news reporting, teaching, and research — you have a better chance of falling within the scope of fair use than if your work is sold to the public for entertainment purposes and commercial benefit. Therefore, using copyright-protected materials in most games cannot be considered fair use.
Public Domain
You do not need a license to use a work that is in the public domain. Since these works are no longer protected by copyright, no one can prevent you from using such works. For example, as of 2023, Arthur Conan Doyle's "The Case-Book of Sherlock Holmes" is freely accessible. Works enter the public domain in several ways: through the expiration of copyright terms, because the copyright owner failed to "renew" their copyrights according to the old Copyright Act of 1909, or because the copyright owner failed to properly notify about copyrights (only for works created before March 1, 1989, when copyright notices became optional).
Ideas or Facts
You do not need a license to copy facts or ideas from a copyright-protected work. This is because copyright protection is limited to original copyright works, and no one can claim originality or authorship of facts. You can freely copy facts from a copyrighted work.
To avoid copyright infringement, obtain permission to use other people's materials. In some cases, a license may not be needed, but each case must be considered individually. Understanding the fine line between "fair use" and infringement is an art and requires legal expertise.
Yes, the path to creating a successful and legally clean video game lies in careful attention to copyright. Not only does this help avoid costly legal proceedings, but it also ensures space for its development without future risks of loss.
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