Games, Licenses, and You: A Practical Overview (Part 1: Know Your Rights)

Let’s talk about the legal implications of intellectual property rights in games for a moment. Since the vast majority of complexity comes down to copyright, we’ll focus pretty heavily on that. I’m based in the US, and I’ll be using their law as the basis for this, but most things I cover are internationally agreed upon.

One of the impetuses for this is that I’ve got an upcoming series where I’m going to walk through the creation of a game from its earliest concept to its ultimate publication, but one of the things that I want to be able to do is talk about why I’m licensing my game the way I will.

However, this will be good information in general when it comes to understanding what you can and can’t do with your games.

Disclaimer: I’m not a lawyer, and this ain’t legal advice. I’ve been studying licensing in the games industry for a while, I’ve seen a bunch of different options and ways to do things. A few years ago I took a class on copyright law from the late Dennis Karjala as part of an undergrad enrichment program. However, while I know what I’m talking about you should probably ask a lawyer about the specifics of your situation if you have any concerns.

We’re not going to talk about hiring people to work on games and how that works either; we’re working with the platonic ideal of you making a game 100% cover-to-cover and what happens once you’ve released that into the wild and want to protect it.

Objectives

• Describe the sorts of legal protection that apply to games.
• Describe methods for remedy of intellectual property infringement.

How Do I Get My Rights?

If you’ve written, drawn, or performed something, you have a copyright for it. If you’ve given something an original name, you have a trademark for that name (in the context of whatever you made). There are a few exclusions, including one very specific thing that we’ll talk about in a moment.

Copyright means that other people, by law, cannot make their own copies of your stuff, except with your permission. For instance, they can’t download it off the internet or print it. In practice, only distributors tend to be prosecuted, but that’s more of a practicality than a legal distinction.

The duration of copyright is laughably long (thanks in no small part to a mouse-themed company I won’t name here). It does vary based on your jurisdiction, but if you’re old enough to read this you probably will retain the rights for the rest of your life, and your grandkids will probably inherit those rights.

Now, can you sue someone for violating your rights?

It depends.

In the US, copyright law requires that you register a copyright before suing. This doesn’t have to be done at the time of creation and the registration is basically just submitting a copy for record so that it can be compared to the infringing copy. You do need some indication of when it was published, but that’s trivial to acquire if you’ve done any digital distribution.

Outside the US the rules vary; internationally the Berne convention has no requirement for this. The US will let you sue infringers without registering the work in the US if it originates from a Berne convention nation.

Trademark law depends heavily on context. You don’t need a registered trademark, though it helps, but you need to have defended the trademark (i.e. not let people use it without a license from you) and the trademark needs to be sufficiently distinct. Calling your game “Game” does not give you a trademark covering all games with “Game” in the name.

A good example: “Untitled Goose Game” would be covered by trademark, but it wouldn’t necessarily let you sue the maker of “Untitled Moose Game.”

Patents are a form of intellectual property most game designers don’t wind up worrying about. To my knowledge, there’s no precedent for enforcing any patent protection on game mechanics other than things like interface devices (e.g. a pinball machine’s plungers and paddles; card scanners).

Let’s take a step back and talk about the limits on protection, which are especially important for game designers.

What Rights Don’t I Get?

Game mechanics cannot be copyrighted. Rules text, software, images, diagrams, and such can be copyrighted, but the actual rules themselves cannot. You also can’t claim a copyright to such a degree of precision that you could exhaust every way of communicating a game mechanic. If you tell someone to roll five six-sided dice, you can’t sue someone else for telling their players to roll five six-sided dice.

This means that you are actually theoretically free to create a clone of any card game, roleplaying game, wargame, or video game, so long as you don’t steal any of their text, visual elements, or source code.

It’s not clear where the lines fall here, so if you’re worried about meeting the legal standards to be noninfringing this is where you should call a lawyer. However, a general legal precedent exists in the software world for reverse engineering. If you’re not taking someone’s source code (or violating an agreement you have with them, which is where people tend to get in trouble since getting source code is really hard), you can make the exact same thing as they made, including complete compatibility.

In short, if you liked a game, and you make a derivative of it that plays identically without consulting their rulebook, you are legally in the clear. You’re also allowed to make content that works with a game, so long as you don’t violate any of their intellectual property while you do so.

You also can’t necessarily sue someone over commentary, parody, or satire. We’ll talk about this in our next section when we talk about fair use.

Moral Rights

One thing to consider: there is another form of rights that I haven’t talked about, and that’s moral rights.

The US doesn’t do moral rights, but most of Europe and a good chunk of other places in the world do.

Moral rights almost never apply to the sorts of use you’d see as a game designer, but typically include:

• The right to have your name attached to (or removed from) your work
• The right to object to distortions or modifications of your work

If you’re publishing your own stuff, you don’t have to worry about this. It is worth noting that the US will uphold Berne Convention moral rights at least in some cases. Each country has their own definitions, though, and to my knowledge the Berne Convention leaves these up to individual signatories.

Moral rights tend to last as long as any other rights, if not forever. You can typically choose not to pursue them, even if you don’t have the ability to explicitly waive them.

Fair Use

Fair use is a concept basically limited to copyright that says that you can use all or part of a work for the purposes of commentary, review, and education. Although there’s a complex four factor process, the general rule is that fair use can’t remove the market for a creator’s original product and should generally be limited to a reasonable amount of the content. Despite what you will see on the internet, the law doesn’t state a number for this, though some consortia have published guidelines about this. Whether those guidelines would actually keep lawsuits from happening is untested to my knowledge.

As a game designer, your use is almost never something that constitutes fair use. You may use very small snippets of a text, like a quote from a poem, book, or film, because you’re not going to be harming them in any way and you’re going for a particular vibe, but I don’t recommend this unless you’ve already talked to the people who own that work and you’ve got their approval.

I’m not going to get into the intricacies of fair use, especially because it doesn’t really exist in the EU and in many Berne Convention countries, and the US doesn’t like granting it to anything like games. Fair use limitations protect you from people copying your work in a way that makes it unnecessary for them to buy it, not in a way that makes them less likely to buy it.

Be aware that if people review your game, comment on your game, or generally write about your game, they generally have a right to do so and you can’t just sue them to get them to stop if you don’t like what they say.

Seriously. This is one of the few copyright matters where courts seriously consider awarding legal fees to defendants. Don’t copyright troll.

Closing

Today we looked at the rights you have to your work as an independent game designer. Next week we’ll briefly discuss remedies for violations for your rights, then we’ll move into common licenses you see that determine what people can do with your protected work the week after that.