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Demystifying copyright and games

By on April 7, 2011
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This is a guest post from Jas Purewal, a games lawyer and writer of games law blog Gamer/Law. Last month, he wrote on GAMESBrief about Demystifying Trademarks and Games.  You can follow him on Twitter.

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If you want to protect your games, you need to understand copyright law.  It’s that simple.  The problem is that many people get pretty hot under the collar about copyright law and think it does a lot more than it actually does.  So, this post is about what copyright really is, what it does and what it doesn’t.

Before I get started though, it’s worth making a few initial points, since copyright in the games industry can be a pretty divisive subject:

  • This post is intended to summarise some key points about copyright law as it is, to help developers to understand where they stand legally.  It isn’t about what the proper balance of copyright law should be between rewarding existing innovation and not discouraging new innovation.
  • This post isn’t about anti-piracy laws or UGC, though they do derive largely from copyright law.  Those are posts for another day.
  • This post isn’t claiming that copyright infringement is any more or less of a risk for the games industry than it was back in the days of Pong.  Personally, I think copyright infringement issues are on the rise, particularly in an era of mobile and casual games borrowing from established IP elsewhere in the industry (look at say Gameloft’s N.O.V.A. vs HALO or Desktop Dungeons vs League of Epic Heroes), but you can make your own mind up about that.

What is copyright?

Copyright law protects the rights of anyone who creates and/or owns a piece of work – such as a book, a film, a database or a computer program (I’ll call them “works”). To the right is an example of copyright work from one of my favourite games:

Copyright law is the main branch of IP law which protects creativity, as opposed to say trade mark law (more on that here), which is essentially about marketing your products, or patent law, which protects industrial innovation.

Five key points you need to know about copyright

(1) Copyright only gives you rights over the actual work you’ve created; it doesn’t give you a monopoly over the idea underlying the work.

This is critical: copyright law is meant to protect the fruit of your work, but it doesn’t stop people independently carrying out the same work and also enjoying legal protection of the fruit of that independent work.  Legally, we say that copyright law protects the expression of an idea but not the idea itself.
Example: the fact that Nintendo owns copyright over the way that Mario looks and sounds does not give it a monopoly over all Italian plumber-themed games characters.  If hypothetically Sega had entirely separately a similar Italian plumber for their own platformer back in the 80s, then Nintendo could not have objected to Sega using that work, or vice versa.

Therefore, it is entirely possible to have two very similar works both co-existing under copyright law, provided one has not substantially copied the other of course (more on that later).

(2) Copyright law gives you specific rights over your copyright work.

Essentially, you have the right to exploit the copyright work and stop others from exploiting/distributing it without your authorisation (the latter category starts straying into anti-piracy laws, which as I said is a post for another day).

These rights are valuable: you can buy/sell, leverage and license your or someone else’s copyrights.  Licensing is key in the modern games industry: it is through licensing that a developer is able to make a game based on a copyright work owned by someone else (e.g. Bigpoint developed Battlestar Galactica Online or TT Games developed Lego Star Wars).

3) A game will contain lots of different copyright elements at the same time.

For example, it could contain code, databases, pictures, films, sounds and written materials.  Each of these elements is separately protectable by copyright law in different ways.  This makes the copyright protection of games more difficult than, say, a book or a painting.

(4) Different countries have different copyright systems.

Example: in the UK copyright protection is automatic and there is no need to register the work.  In the US, a work is not fully protected unless it is registered.  (This might not sound that important, but in the recent past it’s caused real problems for Jagex, for example).  Similarly, different countries have different defences to copyright infringement: the US has a wide ‘fair use’ defence, whereas the UK does not (not yet, anyway).  Depending on the territories in which you operate, you may need to take specialist copyright advice (NB this post is based on UK law).

(5) Different copyright works last for different time periods.

When that time period expires, generally the work enters the public domain and becomes freely exploitable.

Example: copyright protection for a script lasts 70 years after the death of the author.  However, for a film it is 70 years effectively after the death of the last of its creative team.    Once that protection has expired, the work will in principle become freely exploitable in the public domain.  (Here’s some food for thought: as a result, valuable IP will fall out of copyright protection in the first half of this century.  For example, what happens when Mickey Mouse enters the public domain?)

Copyright infringement

As a broad summary:

  • If a developer takes an existing copyright work and copies “all or a substantial part” of it, and
  • That copying can be established factually,

Then that developer may in principle be liable for copyright infringement to the owner of the original copyright work.

So copyright infringement DOESN’T mean that if a developer bases a work on the same source or idea as your existing work, or even if his/her new work copies your existing work, that he/she is automatically infringing your copyright. There has to be copying of ‘all or a substantial part’ for there to be copyright infringement.

Copying of a ‘substantial part’ is a test of quality but also quantity: the developer could be liable for copyright infringement if he/she has copied very significant portions of your work or if he/she has copied one small but very significant part of that work.

BUT – there’s a catch.  It has to be shown on the facts that the other guy has copied your work.  This is done by a painstaking examination of the two copyright works next to each other in order to establish every similarity and dissimilarity between them.  The judge will then take that analysis and decide whether he/she considers that there has been copying of “all or a substantial part” of the original work and therefore if there has been copyright infringement.

In practice, this can be a hard test to meet:

  • If the alleged infringer in fact did not even know about or see your work, then you’ll have no claim.
  • If the alleged infringer did know about your work, but you can’t prove that he/she had any access to it, then you’ll have difficult making a claim.
  • If the alleged infringer did know and have access to your work, then you may have a claim – but, as I said, you’ll need to show that there are sufficient similarities between the works for the judge to find copying of “all or a substantial part” of your work.

This is where it can get very murky indeed.  I’m going to discuss the difficulties of establishing copyright infringement through two examples – one outside the games industry and one from within it.

Dan Brown, The Da Vinci Code and The Holy Blood and the Holy Grail

Back in 1982, three authors wrote a controversial book entitled The Holy Blood and the Holy Grail, the central theory of which was that Jesus married Mary Magdalene and that ‘the Holy Grail’ was both her womb and the resulting bloodline from that marriage.  In 2003, Dan Brown’s best-selling The Da Vinci Code essentially turned the same theory into a novel.

Two of the authors of The Holy Blood and the Holy Grail then sued Brown and his publisher in 2006 for copyright infringement.  The judge found that Brown had quite clearly recycled large parts of the “central theme” of their book when writing The Da Vinci Code.  BUT the judge still ruled that there had been no copyright infringement, on the basis that there had not been copying of “all or a substantial part” of the actual contents of The Holy Blood and the Holy Grail.  Any similarities, the judge found, were at so high a level that it could not be shown that sufficient copying of the actual text of The Holy Blood and the Holy Grail had occurred.  Thus, Dan Brown, who quite clearly had taken his inspiration from someone else’s earlier work, was not liable for copyright infringement.  (Incidentally, this case became infamous in legal circles because the judge incorporated his own code into his written judgment – seriously).

Let’s apply that in a games context.  You create a game called Doom featuring innovative first person perspective action set on a future Mars against hordes of hostile aliens.  A rival developer then creates a highly similar game called Gloom.  Can you sue successfully for copyright infringement?

Answer: you will only succeed if you can show actual copying of the actual contents of your game – the artwork, sound, code etc.  But it’s not enough for you to just argue that the other guy sat down in front of your game and thought “right, how can I make a game that looks and plays just like that?”

Let’s explore that further in the next example…

Nova Productions v Mazooma Games

Nova and Mazooma were both UK developers who created arcade machine games.  Nova sued Mazooma and others, arguing that Mazooma’s games Jackpot Pool and Trick Shot infringed copyright in Nova’s game Pocket Money.  All of them were pool-themed arcade machine games.  BUT, Nova didn’t argue that Mazooma had actually copied Pocket Money’s underlying code.  Instead, Nova argued that Mazooma had copied the user interface, or ‘look and feel’, of its game (you can see examples of the alleged similarities here).  Nova also argued that Mazooma had copied key game mechanisms such as a cue aiming interface and power meter.

Nova lost the case, because it couldn’t show that there had been actual copying of its actual copyright works (e.g. the program code or its graphics) and it just wasn’t enough to show some similarities in the user interfaces of the games.  (There’s more on the case here for those who are interested in the detail.)

This case shows us again that:

  • Copyright infringement depends on copying of ‘all or a substantial part’ of actual copyright works within a game – such as its code, graphics or sound;
  • You have to be able to show factual evidence of the copying; and
  • It’s not enough to point to superficial similarities or the ‘look and feel’ of the game – because that could just as easily have derived from the (unprotected) ideas which you yourself based your game on.  Just because you develop a pool arcade game (or an FPS like Doom) first and then another guy makes a similar game, it doesn’t automatically entitle you to sue for copyright infringement.

It’s not all doom and gloom

A sceptic might be thinking at this point that there’s no point in having copyright protection.  That’s not the case at all.  Here’s some more positive points to think about:

  • Remember that copyright is a valuable asset in its own right, which can be bought/sold, licensed and leveraged.  In fact, for games developers it is often their main asset.
  • Copyright law goes hand in hand with trade mark law.  You may not in some cases be able to stop a rival from poaching aspects of your game via copyright law, but you might be able to use trade mark law instead.  You can read more about that here: Demystifying Trademarks and Games.
  • Don’t take the above as the last word on copyright law and games.  In fact, copyright law as it applies to games is not very well understood at the moment – would the same result in Nova v Mazooma happen if it was a popular narrative game rather than an essentially mechanical pool arcade game?  There is I think scope for a more favourable interpretation of copyright law for the games industry in the future.
  • In the meantime, here’s some practical tips…

Top copyright tips for developers

  • Be realistic about how important copyright protection is to your business.  What resources do you want to put towards it and in which territories?  What can you do to read up on copyright law? (Tip: for the UK, have a look here for starters.)
  • Remember that copyright is a valuable asset in its own right, which can be bought/sold, licensed and leveraged.
  • If you have a dispute with another developer, think about what you want to achieve.  Can you reach an amicable resolution with the other developer?  Or are they actively trying to copy your product and take your customers such that a fight is inevitable? Can you use third parties, like Apple, to make your life easier via takedown requests? Can you enlist your player base or the games press to help?  Have you had a word with a friendly games lawyer?
  • BUT, don’t just be guided by legal factors alone. Think about how much a legal fight would cost, how much time you have to devote to it, what your player base or partners would think of you. It may be that a negotiated settlement is better than an all out fight.
  • Don’t forget your safest bet is to make sure your games are better than your rivals’. Ultimately, only good products can grow your business and ensure your players stay with you rather than go to a rival.

Next month, to round off our IP fun over the last couple of months, I’ll be answering some frequently asked questions about IP law and games…

About Jas Purewal

Jas Purewal is an interactive entertainment lawyer at Osborne Clarke and writer of Gamer/Law