Video Game Copyright
Mark Edwards was interviewed by the CBC for an article about video game copyright considerations in the context of Donut County and Hole.io. The following is additional commentary about the relevant questions for game development companies:
What’s the difference between another developer ripping off your idea versus being inspired by it?
This is not a simple issue. The question is not whether a game developer is ripping off another creator’s idea, it’s whether a game developer is ripping off another creator’s game.
What does Video Game Copyright protect?
Copyright does not protect an idea, it protects the original expression of the idea (excluding elements that might be considered stock or common or public domain). That being said, distinguishing between what is a “mere idea” and what is a protected expression of that idea can be difficult, particularly because copyright infringement includes non-literal copying as well as literal copying.
How can Video Game Copyright Infringement be determined?
It’s easy enough to spot literal copying – the copy or elements of the copy are exactly the same as the original. But what if the game is not a literal copy but simply uses a feature or combination of features of the original game? If that feature or combination of features can be seen as a “substantial part” of the original game, then there can be infringement.
What Do the Courts Say About it?
In Canada, the Supreme Court of Canada recently addressed the question in Robinson v. Cinar, a 2013 decision involving a television cartoon. In short, the Court took a “wholistic” approach: “… the cumulative effect of the features copied from the work must be considered, to determine whether those features amount to a substantial part of Robinson’s skill and judgment expressed in his work as a whole.”
In the case of Donut County and Hole.io, it is possible that the “growing hole” feature of Donut County is itself so distinctive and original that this feature alone constitutes a “substantial part” of the original game.
If a developer finds a game has created a knock-off of their game, what can they do about – legal or otherwise?
In the U.S., the host site will take down the infringing game if you file a notice of infringement with it. However, if the other game developer files a counter-notice, disputing your copyright claim, the game can be restored by the host and you must bring a court action for infringement.
In Canada, you can also send a notice of infringement to the Internet Service Provider which has a statutory obligation to send it to the infringing customer (“notice and notice”).
However, as in the US, your only remedy is a court action for infringement – for damages, the infringer’s profits and an injunction against further infringement. In either country, court actions are time consuming and expensive, beyond the resources of most independent game studios.
How can an Entertainment Lawyer Help?
We support our video game clients with their licensing and distribution agreements and helping to ensure they properly capture all necessary rights.
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Edwards Creative Law is a boutique law firm provides legal services to Music, Film, Animation, TV, Digital Media, Game, Software and Publishing industry clients. For more information and blogs, please visit www.edwardslaw.ca
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* This blog is for general informational purposes only and is not to be construed as legal advice. Please contact Edwards Creative Law or another lawyer, if you wish to apply these concepts to your specific circumstances.