LESSON #39:
LEGAL STUFF

How not to run afoul of others' Copyrights or Trademarks, and how to protect your own creations

Originally written: May, 2004. Latest update: St. Patrick's Day, 2017

NOTE: these lessons are primarily aimed at aspiring game designers, but many of the concepts described herein also apply to those who aspire to other types of jobs in the game industry. This lesson is subject to changes and improvements; reader comments are welcome.
Disclaimer: I am not a lawyer. If you need legal advice, see an intellectual property attorney. And you should educate yourself about the law. Nolo Press publishes several excellent books on IP law (see bibliography). This article is intended solely to cover basic principles, for the elucidation of those who are clueless. Ya gotta have clues to play this game!

Introduction

As we embark upon the craft, practice, business, or passion of making games - may they be electronic games, board games, card games, or whatever - we venture into a realm that is subject to the laws governing intellectual property. Often referred to by the acronym IP, intellectual property is property created by the mind, and which lives in the imagination. This greatly oversimplified definition (written off the cuff by a non-lawyer: me) doesn't imply that a mere idea is protected. And the previous sentence doesn't imply that property created by the intellect is less real or valuable than physical property.

When you write a novel, a movie screenplay, or a game design document, you have ownership of that document. You and you alone have the right to profit from that document - nobody else has a right to make money from your intellectual property without your permission, and without compensating you fairly for it. If somebody uses your IP without your permission, and your IP is registered with the Copyright Office (or the appropriate governmental IP agency), you can sue.

But this is a two-sided coin, and we've only looked at the coin's face. On the coin's obverse side, when you create an intellectual property, you must create it all. You cannot use the trademarks, characters or imaginary worlds created by others in your creation and publish it or make a profit from it without the permission of the owners of the IP you used in your creation. If you use somebody's IP without their permission, you are opening yourself up to be sued.

The purpose of this month's article is to briefly touch upon these issues, in a broad-brushstrokes sort of way, for the edification of those to whom these concepts are unfamiliar. To further your knowledge of this topic, I recommend the books of Nolo Press (see bibliography).

Types of Intellectual Property

Let's discuss three main types of IP: Copyright, Trademark, and Patent.

Copyright law protects the tangible expressions of ideas. Like for instance:

Novels
Screenplays
Comic books
Game Designs
Films
Books on Tape
Video Games
Board Game Instructions
Newspaper Articles
Paintings & Photographs
Poems
Ad Copy

There are plenty of other types of examples. If you have expressed an idea in tangible form, by writing it down and/or illustrating it graphically, you can copyright that tangible expression of that idea. If you have an idea in your head, which you have not expressed in tangible form, then you have zilch. Gotta express it in tangible form, or it's not protectable under copyright law.

Trademark law protects the logos and names used in business to distinguish a business or product from other businesses or products. Like for instance:

McDonald's and its double yellow arch symbol
IBM
FedEx
Vaio
WWF and the panda logo
WWE and the double-W logo
Windows and the Windows logo
Kellogg's Frosted Flakes and Tony the Tiger
Apple Corps and their apple logo
Apple Computers and their apple logo (more on the two Apples below)

The definition I'm giving here is (again) just an off-the-cuff definition written by a non-lawyer. I could quote Nolo Press or the U.S. Trademark office, but if you want to see those better definitions, you can go look them up as easily as I could. If you create a product and call it by a name that might be confused with the trademark of another business entity, you open yourself up for a lawsuit. You shouldn't, for instance, create a new computer operating system and call it "Mindows." And you shouldn't create a paper product and name it "Spleenex."

Patent law protects new inventions and processes. Like for instance:

A machine that would enable its user to walk across large bodies of water.
A software program that would conduct artificially intelligent text conversations via cellphones.
A new type of gameplay using newfangled playing pieces and a custom playing surface.
A chemical composition that makes dumb old people young, smart, and rich.

Whatever. The point is you don't use patent law to protect a game design document or a company name - there are other kinds of IP law for those. If you have created an intellectual property and you can't tell from what I've written which type of IP law you should look to, go to www.nolo.com and buy a book.

Protecting Your Intellectual Property

When you write something down or create a work of art (when you execute it in tangible form readable by other people or by a machine), it is automatically copyrighted. See http://www.copyright.gov/help/faq/faq-general.html if you don't believe that. Still, though, when you have created something of value, you should take steps to document that it was you who created it. If you write a story, you should put your name on it. "How I Spent My Summer Vacation Money, by Jack Schmidt," for instance. It is of course unlikely that anybody is going to get rich by ripping off your summer vacation story. And it would be somewhat pretentious (not to mention unnecessary) to put a copyright notice on assignments you write for grade school or high school. But if you create a short story, an article for publication, a video game design concept/treatment, or an original comic book, it's just basic good sense to write a copyright notice on it. A copyright notice should include either the circle-C symbol - © - or the word "copyright" - and the year when the item was created, and your name. For instance, at the bottom of each web page on my website, I have a copyright notice that looks like this:

The copyright notice is a legal announcement to the world that not only did you create the work, but also that you own it, which means that nobody else should be reproducing it without your permission. At risk of beating a dead horse: you should put a copyright notice on anything you (1) create, (2) deem worthy of protection, and (3) desire to protect.

Merely writing the copyright notice on something is not sufficient, though, if you should ever find a need to take legal action over someone's misuse of your IP. You also have to register your creation with the copyright office of your national government. (In mid-sentence, I realized that folks from outside of the United States might be reading this - I was going to say "with the U.S. Copyright office." If you aren't American, I'm sorry, but I'm mainly discussing the U.S. law here.) The United States Copyright Office website is http://www.copyright.gov/. Pretty easy to find, and pretty easy to navigate and use. It costs $30 to register a copyright. If you can't afford $30 right now, register it when you can afford it. But you won't be able to sue anybody for misusing your copyrighted work until and unless you have registered your work. If you live in some other country, it should be easy to find your nation's copyright office. Google is great. (^_^)

In another article, I think I mentioned the "poor man's copyright" - the practice of mailing yourself a copy of your creation, making sure to get a postmark date on the envelope. Well, don't bother. Spend the money to register your work - and spend the money to buy the Nolo Press book.

Another aspect of protecting your intellectual property is exercising reasonable care in sharing your creation with others. If you write a video game treatment or a movie screenplay, then when you show it to a game company or a movie studio you do so with the hope or expectation that it will be used to create a game or a movie - and that you will share in the profits. Thus certain care should be taken when submitting it.

Submission Agreements, Confidentiality Agreements, & NDAs are legal documents used to protect one or both parties involved in game submissions. Game publishers are very unlikely to sign a document you ask them to sign - and are most likely going to present you with a submission agreement for you to sign. You'll have to sign it, else they won't review your submission. But before you sign it, you should most certainly copyright your creation and consult an attorney. And as I've stated in article #11 and article #21, you should also ideally be a game industry professional and have a working demo and a team ready to develop the game -- but most likely you can't have all those things (else you wouldn't be reading this).

I read in a book about dealmaking in the film & television industry (see bibliography) that one way to make sure you aren't setting yourself up for a big misunderstanding is to begin a pitch by stating that the purpose of sharing your film concept with the studio representative is to get the movie made, and to share in the profits thereafter. And to get verbal acknowledgment of this (or at least a nod of the head) from the person to whom you're pitching your idea. The principle applies to games as well. Misunderstandings are bad (they can lead to legal complications).

Once you have done everything (documented when you created your masterpiece, written a copyright notice on it, registered it with the copyright office in your nation, discussed your situation and the big publisher's submission agreement with your attorney), you're ready to pitch your concept to game biz pros. Paranoia that someone might steal your idea and make your game idea without you is only natural, but it can prevent you from ever getting your game idea made. You cannot make big gains without taking risks. But you must exercise due caution and do your homework.

But don't let all this talk about "protection" make you so paranoid that you stymie yourself from pursuing your ideas. Frequently asked question #1313: "I have a great idea but as soon as anybody hears it they'll want to rip it off, and I can't afford a lawyer until I get funding but I can't get funding without telling my idea! Ohmygod myheadisspinning whatcanido?"

"Don’t worry about people stealing your ideas.
If your ideas are any good, you’ll have to ram them down people’s throats."
- Howard Aiken, Computer Scientist

Respecting the Intellectual Property of Others

When you write your brilliant masterpiece down, make sure everything in it is your own brilliant masterpiece - not someone else's. If your brilliant idea doesn't work unless both Daffy Duck and Lara Croft are in it, dancing to the music of Barenaked Ladies, then forget it. It's already flat on its face. Accept the fact that your idea was born with its face already thoroughly flattened, and go get another idea (one that does not live and die on the IP of others).

If a high school kid creates a short story about Daffy Duck and Lara Croft, referencing the lyrics of Barenaked Ladies, and distributes ten Xeroxed copies around the school, he's probably not going to get sued by Eidos, Warner Bros., or Barenaked Ladies.

But if that same student creates a comic book about Daffy Duck and Lara Croft, with the lyrics of Barenaked Ladies as a subtext, and publishes a hundred thousand copies which wind up gaining a significant following, then guess what. Somebody is going to be sued - (and it won't be me for using the trademark "Xerox" as a verb) - it'll be that student (or his parents). And there might well be three plaintiffs (Warner Bros., Eidos, and Barenaked Ladies)!

Let's say that, as part of his learning how to program games, Jack Schmidt makes his own version of Tetris. He adds an interesting twist to liven up the gameplay, makes a website, and "Jack Schmidt's Tetris" becomes popular, earning bucks for Jack. He could well get sued by The Tetris Company, LLC. Astonished to learn that he can't just call his Tetris game "Tetris" and make money from it, he finds himself in court where he finds that he has to give the money he earned to the Tetris Company. If only he'd consulted an attorney beforehand...!

Let's say that Jack has an idea for a Tetris-like game but with a twist. He consults an attorney who advises him that his idea must not use the trademark "Tetris" in the name, and that he'd better make his game not "look and feel" too much like the Tetris game. Jack thanks his attorney, pays him, and that's that for attorneys, or so Jack thinks. Jack makes his game look and feel different from Tetris, and names it "Jakk's Blokks." When the game becomes popular, he's hit with a lawsuit from a toy company, Jakks Pacific. Shoulda kept the attorney!

Or just consider Apple Corps vs. Apple Computers. The Beatles created their own record company in 1968 and named it Apple Corps. The company's green apple logo was used on several records (a red apple was used on the Let It Be album, which fans like me figured indicated a "ripening" of the fruit - and at least one album featured a label with a bite out of the apple, which also had symbolism for the fans at the time), and the company survived the breakup of the Beatles as a band in 1969 or so.

Then in 1977 along came Steve Jobs and Steve Wozniak, who started a computer company that they called Apple. For their logo they came up with a rainbow apple with a bite out of it. Of course they got sued for the similarity between their trademark and logo, and those of Apple Corps. The first lawsuit was resolved in 1981 when Apple Computer promised Apple Corps that they would not get into the music business. Apple Corps let them keep the name Apple. So now what happens? Apple Computers sets up their iTunes business, selling music downloads and iPod hardware. Lawsuit heats up again. These are two big companies, each with a lot at stake. Something is going to have to give. Keep an eye on the Business section of the newspaper - this'll be interesting.

If you want to minimize your legal exposure, "when in doubt, do without." Don't use recognizeable characters or names in your brilliant masterpieces. Want a cartoon duck in your story? Make up your own. Does your game's world look just like Dinotopia? Change it. Do characters resembling the Beatles sing Beatles songs to an audience of barenaked ladies in your game? Put some clothes on the audience, and use a different insect (and not Crickets, either).

But don't get too paranoid about it. Don't get obsessive worrying if your original creation might have been done before. If your story is "guy meets girl, girl snubs guy, guy changes himself and gets girl in spite of everything," well, that fits several dozen movie scripts. Nobody's going to sue you over that - if they did, everybody'd all have to sue each other too, and then nothing new would ever get made. Don't let your imagine run off into horribilization land, stymieing you and stifling all your creative thoughts. Consult an attorney. Just because you're not worried doesn't mean you're safe. And, conversely, just because you're paranoid doesn't mean they will get you!

Additional reading: "So You Wanna Use Somebody's IP" (FAQ 61).

What is "Protection," And Why Is It Necessary?

I keep talking about how IP laws "protect" the IP owners. What does this mean? For the uninitiated: it does not mean that if you discover that someone is using your IP without your consent, that you can call the cops and the legal system will take over for you. Far from it. What "protection" means is that if you discover that someone is using your IP without your consent, you may hire a lawyer and initiate a lawsuit, during the course of which you may try to prove to the judge that it was indeed your IP, and that it falls under the protection of IP laws, and that you should collect damages. That is likely to be an expensive and time-consuming process. But if your IP has value to you, it may well be worth the trouble and expense.

I have sometimes heard from youngsters who've gotten an idea: "I don't want any money from my idea. I just want to play the game." Ah, the innocence of youth! When such a youngster gets older, he will surely change his tune. Grownups need money to live, and companies need to minimize risk. If a kid gave an idea for free to a game company, and the game company made millions from the kid's idea, then one of two things will happen eventually: (1) the kid's parents will sue the game company to get their share of the millions generated from their kid's brainchild. Or (2) the kid will grow up and come to discover the worth of what he gave away, and regret it - and will sue the company. Or at some point, the story will come out, and the company will look like a lot of heartless bastards who ripped off some poor kid. Such is the way of the world. And this is why IP has value, and why game companies have strict policies about game idea submissions.

I was young once myself. I remember thinking that it was unfair that I couldn't make a comic book using Donald Duck, Mr. Peanut, and Supergirl as characters. So I understand if some readers also share this sentiment. I begrudged those "heartless corporations" who controlled the characters that I felt ought to be freely usable by anyone. Well, to a little guy like me, someone who owns IP seems like a big corporation. But that's part of the whole circle of IP life. IP laws were created so that someone who creates IP can make money from his creation. If he's successful (his IP becomes popular and profitable) then he makes money. He can set up a corporation, create more IP, and the corporation can become a media power.

Just because the IP creator became successful (possibly even rich) doesn't mean he now has to turn around and give his IP away for free. He (or his megalithic corporation) is permitted to continue making money from his IP - and suing those who try to use it without permission. That's what we call "free enterprise" - that's a basic tenet of our capitalistic system. Not everybody likes all the ramifications of it, but it's the system we have. If it was you who created a hugely popular character or universe, then it is you who should reap the benefits. And you should be able to defend your intellectual property from thieves and pirates who try to get rich on your brainchild. If you were to decide, after having gotten rich on your creations, to "open source" your characters and universe, that's completely up to you. Current U.S. IP law gives you and your heirs a certain amount of time to capitalize (there's that word again) on your IP. Thus even though Walt Disney has died, Mickey Mouse and Donald Duck are still protected, and cannot be used without the permission of the Disney company. In theory, someday that protection will expire... but recent California legislation makes that uncertain. But now I've gone and digressed again. I think I've jabbered on long enough.

This article was about IP, but another really important aspect of Legal Stuff is ... the contract. Read article 58 to learn about contracts in the game biz.

BIBLIOGRAPHY

Patent, Copyright & Trademark; An Intellectual Property Desk Reference
by Stephen Elias & Richard Stim. Nolo.com (Nolo Press), ISBN 0-87337-601-3

The Copyright HandBook: How to Protect & Use Written Works
by Stephen Fishman. Nolo.com (Nolo Press), ISBN 0-87337-548-3

Dealmaking In The Film & Television Industy
by Mark Litwak. Silman-James Press, ISBN 1-879505-15-0. Litwak has a spectacular site at http://www.marklitwak.com/articles/multimedia/publishing_agreement.html. Well worth a look.

Secrets of the Game Business
Edited by Francois Dominic Laramee. Charles River Media; ISBN 1-58450-282-7.0

Game Design Perspectives
Edited by Francois Dominic Laramee. Charles River Media; ISBN 1-58450-090-5

COMMENTS

>From: "Ben B
>Subject: Intellectual property
>Date: Wed, 29 Dec 2004 00:42:30 -0500
>Hi Tom,
>
>I have an idea for a card game that requires the use of celebrities names and possibly photos. After reading your lesson which refers to respecting the intellectual properties of others I fear that it can't work. Do you know if there are certain celebritites or personalities that are fair game?
>I'm questioning this becuase of all the George Bush merchandise I've seen in stores.
>
>Appreciate your thoughts,
>Ben B
>AGE - 28, EDU - finished university, OCC - IT consultant
>Dec 29, 2004

Hi Ben,
I'm not a lawyer, so everything I'm about to tell you is wrong. (^_^)
1. The principle of "fair use" applies to students and news organizations but not to for-profit endeavors - but you should go on Google and/or Nolo and research that principle.
2. Celebrities make a living from their likeness and name, so you open yourself up to a lawsuit if you use those.
3. Elected officials and heads of state are fair game for satire and parody (look those terms up too) - and they are in no position to sue you if you use their likenesses and names. They are "public figures" (an entirely different thing from a "celebrity").
4. Photos are the property of the photographers (or the entities to whom the photographers sold the rights to those photos) - so you are free to use photos that you yourself take. Become a paparazzi, I guess - but then prepare to get sued if you use the likeness or name of a celebrity.
5. After you do your research on Google and Nolo, maybe you can ask further questions on the IGDA's "Business and Legal Issues" forum. A lawyer moderates that forum.
Good luck and happy new year! - Tom
Tom Sloper
Los Angeles, California, USA
12/28/2004 (I guess my time zone is to the west of yours!)

>Name = Lorenzo
>Age-Ed-Occ = I am 26, a PhD. Student
>Date = 19/01/2005
>Comments = A question about a legal matter in making a game.
>What happens if a game I am creating has similar rules and mechanics to one already existing?
>For example, what if I do a war-game with rules similar to Risk but with a completely different board, pieces and cards?
>Thanks a lot,
>Lorenzo

This was just discussed today on one of the IGDA forums, Lorenzo.
In terms of copyright, as long as you don't copy the wording of the rules or the exact look, or terminology, or pieces of the original, you might be OK.
In terms of trademark, as long as you don't use the game's name, you might be OK.
Note that if your game play is identical to the gameplay of Risk, that could leave you subject to a lawsuit for "look and feel" (even though you didn't use the exact terms and territorial boundaries and pieces, etc.).
Of course, the above applies to U.S. law - no guarantee that Italian law is identical. And of course this is not legal advice - it's just information.
Tom Sloper
Los Angeles, CA (USA)
Jan. 19, 2005

Self-mailed copyright

Date: Thu, 11 Nov 2010 11:18:42 -0800 (PST)
From: gabriel g
Subject: Question...
>Hello Tom,
>As aspiring game designers and people with ideas in general, it is often suggested to us to protect our ideas by mailing them to ourselves, effectively creating what's called the 'poor man's copyright.'
>I created one about three years ago and found myself in a situation where I might actually need to use it. However, the attorney completely disregarded it when it was presented to him. I know nothing could ever replace an offical copyright, but in your opinion, why do you think they attorney ignored it? Do these really offer any kind of protection in the first place??
>Thank you,
>~Gabe

Hi Gabe,
The "poor man's copyright" is a myth. You should register your copyright with the government agency of your country, if there is or might be a legal challenge to your ownership of it.
Tom Sloper
トム·スローパー / 탐 슬로퍼 / 湯姆斯洛珀
Los Angeles, California, USA
11/11/10

Legal questions about pitching game ideas

>From: Carla B
>Sent: Wednesday, February 15, 2012 4:46 PM
>Subject: question about game idea
>Hello,
>I was reading over the information on your website about selling a game idea, and I have a few questions.
>1) If I am wanting to sell my idea to a company, do I need a patent on it first? Or can I just create the game and rules and take it to the company to attempt to sell?
>2) If the name that I want to use for my game is already the name of a toy (not another game, a childs toy) can I still use it for my game?
>Any advice you can offer will be appreciated. Thanks so much!
>Carla B.

Hi Carla,
Thanks for numbering your questions for me.
No. You do not need a patent. But you should register your copyright.
Toys are near enough to games that there's probably a good chance that a lawsuit could result. A game called "Kleenex" would probably also not be a good idea. Your lawyer can explain this better than I can. But essentially...
If it's just an accident that some dumb toy company happened to name their toy the same thing you named your game, then you should change the name of your game. If it's not an accident, then the only party to whom you can pitch your game-about-that-toy is the toy's manufacturer or the game company who's got the rights to make games based on that toy.
Tom Sloper
Creator of the game advice FAQs -- donations appreciated.

Los Angeles, California, USA
February 15, 2012

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