Kickstarter Lesson #159: Everything a Kickstarter Creator Needs to Know About Copyrights

6 August 2015 | 28 Comments

This is a comprehensive guest post about copyright by our crowdfunding legal expert, Zachary Strebeck.

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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.

Read more about it here.

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:

  1. having the work created by an employee as a work-made-for-hire;
  2. having the work created by an independent contractor as a work-made-for-hire; and
  3. 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.

Wrapping up

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.

28 Comments on “Kickstarter Lesson #159: Everything a Kickstarter Creator Needs to Know About Copyrights

  1. Awesome read, it was really informative and helpful!

    Is there any advice on how an artist could create contracts for being hired? I noticed from indieGenerator there is a Work-for-hire Agreement but wasn’t sure if it could be generated from the artists perspective.

    1. Katie,

      Glad you enjoyed the post! As far as indieGenerator goes, the Work-for-hire agreement includes terms and choices that could be considered favorable to either the hirer or the hired.

      For instance, ownership of the intellectual property you create. You can choose to have the hiring party either own it outright as a work-for-hire, or only grant a license for the hiring party to use it in their game as long as the game is published. This license can be either exclusive or non-exclusive, so you could potentially retain the right to use it for other things. You can also have a clause put in that specifically lets you use the art for your own portfolio or website, for self-promotional purposes.

      Above all, if you’re not satisfied, you just have to email the site and you can get a refund. The only questions I’ll ask is how to make the experience better and avoid you requesting the refund in the future!

  2. Jamey/Zachary,

    As always…a very useful post! I’ve found that one of the best things one can do, given the frivolous law suits, is incorporate or form an LLC. I knew that when I started my business, there would be one company that might have an interest, so displaying due diligence we approached them and asked for a license to use their name, though no image of theirs was used for our product. I was concerned more about the perception than the reality, and unfortunately with copyrights, perception is reality.

    In the end, they stated that the company “couldn’t make the numbers work” so we parted ways, with the tacit understanding that we would pursue our line of products. The only thing it has cost me is the opportunity to play-test some of their games…but given the myriad companies and game designers for whom I provide development service, it’s a small price to pay.

    Cheers,
    Joe

  3. Joe,

    Yes, forming a corporation or LLC has lots of advantages, like limiting your liability (in most cases). Heck, it can even make you look more “professional” and “real” when dealing with potential licensors – a company may be hesitant to license their IP out to a sole proprietor, but having an LLC makes it clear that you’re taking the act of being in business seriously. Of course, then you have to act like it, but that’s for a different blog post.

  4. Jamie/Zachary,

    I was recently introduced to the Stonemaier Kickstarter lesson blog at this years Gencon, through some of my St. Louis friends at Gateway Games. I would just like to say thank you for all of this amazing content & specifically this guest post. The work-for-hire agreement on indiegenerator is something I’ll use in the next month or so for sure.

    Again – thank you!

  5. Hello,

    I am a psychologist and am creating a board game based on a psychological theory. The theory is published and there are many books written about it. My game uses some of the same language and ideas as is printed in these books. Would this be copy right infringement? Would giving credit to the creators of the theory prevent it from being infringement? Thanks.

  6. Hello Ellis,

    Unfortunately, if I just answered your question that would be giving specific legal advice, which is generally a no-no in public forums such as this (and without an agreement between us).

    The non-advice answer is “it depends.” Copyright protects certain things, but there are a number of things that copyright law does NOT protect. Ideas, functional parts, facts, and other things don’t get copyright protection. Really answering your question would involve looking at your game and the source material to find out if anything is infringing, or if it is covered under Fair Use. You could also look into contacting the author and getting permission in writing.

  7. Jamie,

    Do you get Patents or Copyrights for your games? If so, how much does this process cost for a game? I’m not sure if I should get a Patent for my game.

    Thank you

  8. No, I don’t. As Zack notes in the comment above, “Ideas, functional parts, facts, and other things don’t get copyright protection.” What I can do is protect the NAME of my brand and my game through a trademark, the cost of which depends on how much time it takes your lawyer to secure it. Zack writes about trademarks here: https://stonemaiergames.com/kickstarter-lesson-131-everything-a-kickstarter-creator-needs-to-know-about-trademark-law/

  9. I’ll give the basic rundown here –

    Patents: Protects the mechanics of your game, essentially, for 20 years. Specifically, it prevents others from using your invention, but doesn’t necessarily allow you to use the invention yourself (for instance, you could be incorporating other patents into that invention and don’t have a license to use that nested patent). Generally going to take years and cost tens of thousands of dollars, so most smaller game developers don’t bother.

    Copyright: Rights exist at creation, last for the life of the creator plus 70 years, but check this pdf to make sure – https://www.copyright.gov/circs/circ15a.pdf. Need to register in order to sue, should register within 90 days of publication (and prior to any infringement) in order to be able to recover statutory damages and attorneys’ fees. Protects the original creative elements of your work, which could be your artwork, your rules text, music or other creative parts of your game. See my post here – https://alawyerabroad.com/copyright-basics-for-bloggers-and-content-creators/

    Trademark: I cover this pretty well in the post that Jamey linked to, but basically it prevents others from using similar brand identifiers in order to avoid consumer confusion. VERY important, imo.

  10. i have a question if i make a pc game designs public, who hinders another game developer to write that game with different graphics ? (it happens all the time with succesfull games).

    1. Well, if they copy the actual software code, this is copyright infringement.
      If they just copy the gameplay/mechanics/rules ideas, but change all of the elements protectable by copyright, there probably isn’t anything you can do. Copyright law doesn’t protect ideas, only original creative expression of an idea.

      If you have a patent on it, it could be protected. But not everything is patentable, either, and it’s expensive. Software patents were also limited recently by the Supreme Court’s “Alice” decision. EA has already been bitten by this decision, I believe.

        1. If that’s your fear, you should probably stay out of releasing games altogether, because it’s just part of the industry. Tons of cloned games on the app stores and other platforms. It’s just the nature of the beast. You get around it by having the best and first product. If you go on Kickstarter, you have the ability to get out ahead of any potential clones with your community having your back. I’m sure Jamey has some thoughts on that.

          If they really steal your artwork or do something substantially similar, though, there are procedures for getting those infringing games taken off the various platforms.

  11. well to be honest i don’t know well about kickstarter, i thought you first get feedback before you launch the money gathering process.and as i have only the structure of the game on paper i thought about getting some feedback for that ;) (as i can imagine without a fancy video you won’t get far with kickstarter). and to be honest with these papers a small indie game developer can implement the game in 6 months.

    ps.: so if you can give me advice should i first make a video and prototype and launch a backers campaign right away or can i test the waters with a on paper prototype ?

    1. nils: It’s good that you’re asking questions now. :) Kickstarter is most effectively used for fully designed, developed, and playtested ideas that are ready for production. I would recommend the following:

      1. Read through these blog entries in chronological order (or read my book): https://stonemaiergames.com/kickstarter/full-list-chronological/
      2. Design and playtest the game on paper.
      3. Bring in a partner who can create the digital version of the game. Kickstarter’s rules are a big vague about this, but it seems like they don’t accept digital projects where someone is outsourcing the digital part of the project instead of creating it in house. You can also ask Kickstarter about this now to see what they say.

  12. What I don’t understand is this: if the you don’t officially register your copyright, then what’s to stop someone e.g. buying your (DRM free) game, and then selling it and saying that they were the original creators of it? How would the real author prove that they are in fact the real author?

      1. Even a non-public paper trail (internal documents, emails, github, etc.) would most likely show the necessary proof of time of creation.
        But you’d be crazy not to register your copyright right away (day of publication) due to the statutory damages I mention in the article. Proving your actual damages is a pain.

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