6 August 2015 | 28 Comments
This is a comprehensive guest post about copyright by our crowdfunding legal expert, Zachary Strebeck.
While attending a Kickstarter panel at GenCon starring the indomitable Jamey Stegmaier, a question was asked about what Kickstarter creators should be worried about regarding copyright. Since there was a copyright lawyer in the audience, Jamey directed the question to me.
Answering that question made me realize that there are a lot of misconceptions and misunderstandings about copyright. Most of all, there’s the fact that a lot of developers don’t even know what it is!
Because of this, I thought I’d do a FAQ of sorts to answer common questions and link to resources from my gamedev legal blog that can help you round our your knowledge of these pertinent issues.
What is copyright?
This seems pretty basic, but before I took a class in law school, I had no idea what copyright even was. Essentially, it gives the copyright owner the exclusive right to make duplicates, make derivative works, publicly perform, and a few other things.
In order to be protected by copyright, something needs to be an original work of authorship (a story, a drawing, a song, even dance choreography) that is “fixed in a tangible medium of expression.” This means that it has been written down, saved as a digital file, or recorded as a video – basically anything “tangible” that is outside of your own head or the ether. So if you do a dance that you’ve made up, there’s no copyright there. But if you write down the steps or record the dance with a camera, you’ve “fixed” it in a tangible medium.
Why does a Kickstarter creator need to be aware of copyright issues?
Two main reasons: you may be infringing on others’ copyrights or someone may be infringing on yours.
If the copyrightable material in your product is close enough (“substantially similar,” in the legal speak) to another copyrighted work, you may be infringing on their exclusive rights. Barring some defenses like Fair Use, this could leave you liable for copyright infringement, which could bring with it big penalties.
Heck, even the threat of a dubious lawsuit is enough to bring down some smaller companies. If a complaint is filed against you or your game company, just filing an answer to that complaint can cost thousands in legal fees.
The best way to defend against this is to get proactive and do your best not to infringe.
How do you know that you’re infringing on someone else’s copyright?
Here’s a link to a story I wrote about a potentially-infringing Paula Deen mobile game – it covers the legal standard for copyright infringement.
The obvious problem with avoiding copyright infringement is that no single developers knows about every game or piece of copyrighted material out there. That’s why I recommend, mostly for business and community-building reasons, that you get information about your game out there early and often through a development blog and gaming community involvement.
How does this help? It allows you to use crowdsourcing to discover potential copyright infringement. While one person may not be able to recognize that your art is dangerously close to something that’s out there, a multitude of readers may be able to clue you in. It’s the same method that open source software uses, and why that is often more secure. Having many eyes on the project can help immensely.
Also, this blogging or community-building has the added benefit of getting your name out there before you run your Kickstarter. Value for value – you provide valuable insight to the game development community and they provide the crowdsourcing, marketing value and other benefits for your upcoming campaign.
You can also check out the US Copyright Office’s website and search copyright registrations. This may not help very much, though.
Why is it important to stop others from infringing on your copyrights?
Well, your copyrights are an important asset of your burgeoning game company. Whether it’s your distinctive board game artwork or the cool music in your mobile game, those are things that the audience comes to you for. If someone else is stealing them, they may be taking money out of your pocket or diverting your audience away.
While there are certainly some altruistic game developers who wouldn’t mind (some creators even put their work into the “public domain”), others (particularly readers of this blog) are probably looking to make profit so that they can grow their business. Copyright infringers can negatively affect this goal.
How can I make sure I own the copyright to all aspects of my game?
One big issue that game companies face is the ability to use and exploit the copyrightable material in the game they are making. A single developer, however, often doesn’t create EVERYTHING in the game – there are artists, writers and designers working on any given title.
If you don’t either own the rights or have a license to use the materials, you may not be able to continue publishing the game. Again, you are potentially missing out on ongoing revenue by not getting these rights in place!
This is done in three main ways:
- having the work created by an employee as a work-made-for-hire;
- having the work created by an independent contractor as a work-made-for-hire; and
- having the author of the work license the rights to the game publisher.
Do I need a written agreement to own or license the rights?
Most likely, yes.
In the case of an employer-employee relationship, the work is usually automatically owned by the employer, who is the “author” for purposes of copyright. Most employers STILL get a written assignment of copyright in their employment agreements, though, just in case.
With independent contractors, US Copyright law requires that there is a written agreement when the materials are specially commissioned in order for the employer to own the rights to the work. Without that agreement, you’re relying on a license from the contractor, which can be revoked (this is a bad thing).
A license is basically getting permission from the author to make use of the copyrighted work, according to certain terms. Any license that you get from the author of the work should be in writing and should conform to your expectations about using that work. If you only get a license to use the art in your game for one year, you will be in for an unfortunate surprise once that time is up. Legally, you’d no longer be able to use that artwork in your game!
So when you’re getting a license agreement with the author drafted, you need to be sure that it is long enough and broad enough for your needs as a publisher. Check out the segment I did for The Dice Tower podcast for more information about license agreements.
Where can I get these agreements?
Here’s my plug – I created a website called indieGenerator that allows developers to generate these common contracts for much less than a lawyer (including myself) would charge. You just go through the easy questionnaire, make the payment through PayPal, and the contract will be emailed to you in pdf format. I even have pdfs that detail the various negotiation points and important issues in each agreement.
For Stonemaier Games and Kickstarter Lessons readers, I’m offering a 50 percent off coupon that will last until the end of the year – just use the coupon code “stonemaier” to get the discount on every contract you create.
Remember the old adage – “a little knowledge is a dangerous thing.”
When dealing with a business that sells products, it can be difficult to wrap your head around the many issues. That’s why I always recommend that you surround yourself with professionals like attorneys and tax advisors who can steer you the right way through these business-related issues.
If you enjoyed this post, please let me know in the comments. If there are any questions, leave them there as well so I can address them in future guest posts.