Indie Dev Business Basics: Protecting Your Game Content

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By Zachary Strebeck

Welcome to part 4, brave indie devs. In the last post in this series, we discussed protecting your brand name through trademark law. Today we’re going to discuss how to protect the content of your game through another type of intellectual property law called “copyright.”

How copyright law works for video games

Copyright law protects “original works of authorship” that have been “fixed in a tangible medium of expression.”

That word soup basically means that copyright protects creative works that have been written down, recorded, or saved as digital files in some way.

What copyright doesn’t protect:

  • Ideas
  • Functional things like game rules and mechanics
  • Facts (like a phone book listed in alphabetical order)
  • Short phrases or slogans
  • Titles

So your game title and tagline needs to rely on trademark law (see the previous post), your game mechanics need to rely on patent law (expensive enough that most indie devs don’t bother), and you need to realize that your ideas are a dime a dozen. The real value is in actually creating a functioning product and in the goodwill associated with your brand.

The cool thing about copyright is that you have rights as soon as you “fix” the copyrighted work (write it down, record it, save the file, etc.). However, there isn’t really much you can do with it, legally. That’s where registration comes in…

Registering your copyright

Once you have actually published your game, one of your first steps should be to register the copyright with the US Copyright Office. This gives you a few benefits that an unregistered copyright doesn’t have, like access to federal courts to sue any infringers. Without a registered copyright, you can’t actually sue anyone who is infringing on those rights.

In addition, if you register your copyright within 90 days of publication of your game (and before anyone infringes), you get the ability to sue for “statutory damages.” You see, normally you would have to prove how much you were actually damaged by someone’s copyright infringement. With statutory damages invoked, you could avoid this difficult burden of proof and get a set amount of damages, up to $150,000 per incident. In addition, the infringers could be on the hook for your attorneys’ fees, as well. This actually makes is easier to find a competent attorney who will take your case on contingency (meaning that you don’t pay anything if they don’t recover for you), because the attorney knows that their fees will be paid if they win.

Registering is easy, for the most part. If you have the proper work-for-hire contracts in place (which I discussed in Part 2 of this series), you are the author for copyright purposes. The US Copyright Office has an online registration form, and the fee is pretty small at $55. You then upload some screenshots, example software code, and even a video file of your game as a “specimen” to show what, exactly, you’re protecting. However, as with all of these things, I recommend having an attorney file these on your behalf. You don’t want to get it wrong.

Going after copyright infringement

Once you have a product out there that’s worth copying, there are a few ways that you can go after infringers. These are:

  • Cease and Desist Letters
  • DMCA Takedown Notices
  • Platform-specific takedown procedures
  • Filing a lawsuit

Typically, the first three are your first line of defense against copyright infringement. Cease and Desist letters are the least powerful, but they carry with them the threat of a lawsuit. Usually the letter explains your rights, then basically says “stop infringing or we’ll sue you.” Whether or not you’re prepared to do so, the threat is often enough to scare them into complying, especially when sent by an attorney. The main reason is that the infringer is usually much less invested than the copyright owner, so an infringer will often move on to something else if any resistance is met.

DMCA notices and platform-specific takedown procedures can often get infringing content taken down from a website, app store, or other online service if you send a compliant notice. The DMCA requires certain things to be in a notice in order for it to be effective. Once submitted to the host, they will usually disable access to the infringing content and notify the uploader of that content. The infringer then has to file a counter-notice, which states that they have the right to post that content. You, as the copyright owner, then have to actually file a copyright infringement lawsuit to get the material taken down. As with the Cease and Desist letters, most infringers don’t bother with the counter notice unless they genuinely believe that they had the right to post the material. Some platforms, like YouTube, have their own copyright infringement procedures (such as putting “copyright strikes” on infringing uploaders) and their own systems for reporting infringement.

A lawsuit is often your last resort if the easier methods don’t work. If you have a good case and the infringer has money, there will often be an attorney willing to take the case on contingency. The attorney will take a percentage of whatever they recover for you, either by winning the lawsuit or by settling out of court. This can range from 30 to 50%, but depends on the attorney.

Wrap-up

That covers the basics of copyright for game devs. Of course, there’s a ton more, but you can learn that as you go. In the next (and final) post in this series, I’ll discuss privacy policies and other issues that can affect game developers. Stay tuned!

In the meantime, check out my new indie dev business course at www.indiegamestartup.com. Sign up for the mailing list to get updates and a discount for the upcoming launch!