Mark Edwards, Lawyer, Edwards PC, Creative Law
Here’s a very practical introduction to copyright in video games — what you, as a game developer, need to know.
It will come as no surprise that your game is a combination of many elements. At a minimum, these include a computer program, static and animated graphics, and a description of the game play. They may also include a script, cinematography, music and dialogue (and their performance and recording). Each of these elements is individually owned by its creator(s) as a distinct bit of intellectual property. The game, as the combination of all of these elements, is another distinct bit of intellectual property, comprised of, but separate from, the individual elements.
In the language of copyright, a video game may be seen as a literary work (predominantly a computer program) a collective work or a compilation: of literary works (including the computer program), musical works, dramatic works (including cinematography), artistic works, performances and, possibly, sound recordings. In each of these, there are the “copyrights” — the rights to produce, reproduce, perform and publish (and related rights) — and the “moral rights” — the rights to be associated with a work or to remain anonymous and the right to maintain the integrity of the work (no changes to the work). The fact that you, as the game developer, have copyright and moral rights in the game does not affect the copyright or moral rights in the component works.
What are the implications for a game developer? First, make sure that you have an assignment of copyright or license to use all of the component works, performances and sound recordings that make up your game, and a waiver of the author or maker’s moral rights. Second, mark and register your copyright in the game.
On gathering rights in the components, remember that works made in the course of employment (that is by your employees) are owned by you, as the employer (unless there is an agreement to the contrary), but works made by a freelancer are not. As a rule, always have a written agreement with both employees and freelancers. In the case of employees, an explicit acknowledgment of your ownership of the works as employer eliminates any claim of an “agreement to the contrary” and you will still require the waiver of moral rights, which is not automatic. In the case of freelancers, you have nothing without an agreement — you need to establish both the assignment or license of copyright and the waiver of moral rights.
As for your copyright in the game, mark it with your claim of copyright. For example © Your Name, 2015 (date of first publication). Register your copyright in Canada (for as little as $50) at https://strategis.ic.gc.ca/app/scr/opic-cipo/da-cpr/depot-filing/connexion-login_eng.htm but also consider registering in the United States (US $55) http://copyright.gov/eco . (The US requires you to deposit a copy of your game with the registration, which Canada does not. If you haven’t done so, it could limit the benefits you can claim under US copyright law.)
Registration doesn’t create copyright but it does give notice to the rest of the world of your claim and it you creates a legal presumption that you are in fact the author, maker or owner.
© 2018 Edwards PC
Edwards PC, Creative Law: Leading media, software and entertainment law firm in Ottawa and Toronto, Canada. Helping acquire, finance, develop, produce, protect and exploit IP.
* This column is for general informational purposes only and is not to be construed as legal advice. Please contact Edwards PC, Creative Law or another lawyer, if you wish to apply these concepts to your specific circumstances.