Some people reading this post might already be familiar with all of this, but recently I’ve been getting enough questions about the basics of intellectual property law that I thought writing up a brief primer would be helpful to some of the game devs, composers, artists, and everyone else out there.
What Is Intellectual Property?
When people use the word “property,” the image that comes to mind is usually something tangible, like potatoes or iPads. The law recognizes three broad categories of property: personal property, real property, and intellectual property.
- Personal property is stuff that is tangible and “moveable,” like aforementioned potatoes or iPads.
- Real property is tangible but not moveable, like land and buildings.
- Intellectual property is neither tangible nor moveable, like copyrights and trademarks.
People are generally pretty accustomed to dealing with the first two – it’s that third category that tends to get people into trouble nowadays, so here’s a quick overview of the four general types of intellectual property.
- Copyrights protect creative works fixed to a tangible medium, like song recordings, literature, or paintings.
- Trademarks protect words, symbols, or designs that identify a source of goods.
- Patents protect useful, functional inventions.
- Trade secrets are devices or techniques that a company uses to manufacture its goods that aren’t generally known or ascertainable.
What kinds of things does copyright protect?
As copyright involves creative works, it is the type of intellectual property game devs are most likely to deal with (and, occasionally, run afoul of). Copyrights protect “original works of authorship” that are “fixed in any tangible medium of expression.” 17 U.S.C. § 102.
“Original works of authorship” includes literary works, musical works, dramatic works, visual artwork, sculptures, movies, sounds, and architectural plans. Most notably for video game developers, source code falls under the “literary works” category. Concept art, sprites, character models, background music, sound effects, and character dialogue are all also protected by copyright.
“Fixed in any tangible medium of expression” means that copyright protects your creations once they’re down on paper, literally or figuratively. In other words, copyright protects the particular expression of an idea, but it doesn’t protect the underlying idea or concept itself. For example, if you come up with a character design for your game, copyright can protect the concept art, sprites, and/or 3D models that you create, but copyright can’t protect the underlying idea of “spiky-haired teenage protagonist,” otherwise no one could make a JRPG ever again. (I discussed this distinction more thoroughly in a previous post about why game clones are a thing.)
What kind of protection does copyright grant?
Copyright grants the holder the exclusive right to reproduce the copyrighted work, to create derivative works based on the copyrighted work, and to publicly perform/display the copyrighted work. 17 U.S.C. §106. This means that the copyright holder alone has the right to do all that with the copyrighted work – if anyone else does any of that, they are said to be infringing the copyright, and the copyright holder has legal recourse to stop any such infringement.
Typically, copyright protection lasts for the duration of the author’s life plus 70 years (if the author is anonymous or a corporation, copyright protection lasts for 120 years from the date of creation or 95 years from the date it’s first published, whichever comes first). 17 U.S.C. § 302. After the copyright expires, the creative work then enters the public domain, which means it may generally be used by the public with relative impunity.
How do I get copyright protection?
You don’t necessarily need to do anything to get copyright protection on the stuff you create – creative works are automatically protected by copyright as soon as they’re put down on paper, literally or figuratively.
That being said, in the U.S. you can officially register your copyright with the U.S. Copyright Office, and doing so comes with some very useful benefits. First, official registration puts your copyright on public record, making it a lot harder for others to argue that they “innocently” infringed your work because they didn’t know it was out there.
Perhaps most significantly, official registration is generally a prerequisite in order to even be able to sue someone for infringing your copyright. 17 USC §411(a).
The timing of the registration can also affect what you can recover if you do end up suing someone for copyright infringement. If you register the copyright within three months of creating the work, you may be eligible to receive statutory damages of up to $150,000 per infringement plus attorneys’ fees. 17 USC §504(c). Otherwise, you are only entitled to actual damages, meaning what you can recover is limited to what you can prove you lost as a direct result of the copyright infringement (which, in many cases, is difficult to prove and/or not a large enough amount to warrant a lawsuit).
Copyright registration within five years of creation also creates a presumption in the validity of the copyright, should it be challenged in court later. In legal-speak, such registration is prima facie evidence that the copyright is valid, and the burden of proof is on whoever is challenging your copyright to prove that the copyright is invalid or that you are not the rightful copyright holder.
Considering all these benefits, it’s generally a good idea to register your copyright as soon as you reasonably can. Registration can be done online at www.copyright.gov, and the fee is only $35 or $55, depending on the circumstances.
(I’d also like to briefly address the idea of “the poor man’s copyright,” which boils down to mailing yourself a signed copy of whatever it is you’re trying to protect. It’s frequently suggested by non-lawyers as an easy way to prove authorship and date of creation without having to register with the U.S. Copyright office. In a nutshell: don’t bother. It’s essentially just an old-timey version of that copyright gibberish that gets posted over and over again to people’s Facebook pages.)
Trademarks protect words, symbols, or designs that identify a source of goods, so a game dev is likely to be interested in protecting a trademark in the name of their company and game(s), at the very least.
While most other forms of intellectual property are meant to protect the creator/rightsholder from infringers, the purpose of trademarks is to protect the general public from confusion in the marketplace. (I wrote about trademarks in a previous post about the whole Candy Crush/Banner Saga hullabaloo.)
You don’t necessarily need to officially file your trademark in order to receive trademark protection – certain “common law” protections are automatically granted to a business that uses a trademark “in commerce.” However, as with copyrights, there are significant advantages to filing for federal trademark registration, including:
- nationwide protection of the trademark, and access to federal courts to bring trademark infringement suits;
- a statutory presumption that: the trademark is valid, the registrant is the owner of the trademark, and the registrant has the exclusive right to use the trademark;
- public record of the trademark filing, giving constructive notice to the public at large and preventing people from claiming they “accidentally” infringed the trademark; and
- after five years, the trademark becomes “incontestable,” which means the trademark can no longer be invalidated for being “merely descriptive.”
Trademarks cost quite a bit more than copyrights to register: the fees to the USPTO alone run several hundred dollars (they vary depending on the particular circumstances), and that’s not counting what you might pay an attorney on top of that to help you with the filing. As such, while filing federal trademark registrations are likely to be a good idea eventually, not everyone is in the financial position to be able to file them right away.
Patents protect technological innovations. Essentially, patents are a way for the government to encourage inventors to invent: come up with an awesome new technological solution to a problem (and tell everyone exactly how you did it), and you get a temporary government-enforced monopoly on making, using, and selling that technology.
If you’re producing code, artwork, music, etc., patents generally don’t apply (copyright does). If, on the other hand, you’re coming up with a new controller, console, etc., then you’re probably going to want a patent on that. That being said, patents have been issued for game mechanics before (e.g., Final Fantasy X’s Sphere Grid, Mass Effect’s dialog wheel, and Katamari Damacy’s… katamari-ing), so if you’ve come up with a brilliant new way to do something in a video game and you’re interested in getting a patent on it, then read on.
Unlike copyrights or trademarks, you don’t automatically get any patent rights just for inventing something – your invention isn’t protected until you actually file for a patent (which can be expensive: only people registered with the USPTO as patent attorneys/agents can file a patent on your behalf, and the process often takes years). Patent protection lasts 20 years from the time of filing, so it’s in an inventor’s best interest to file as early as possible. Note that there is a time limit too – if the inventor sells the invention or otherwise publicizes it before filing for a patent, they have a year to file before they lose the right to do so. 35 U.S.C. §102(b)(1).
What is Patentable?
To be patentable, the innovation must fulfill five requirements:
- patentable subject material: The Supreme Court has held that patentable subject matter “include[s] anything under the sun that is made by man.” Diamond v. Chakrabarty, 447 U.S. 303 (1980). You can’t patent naturally occurring things, because duh.
- utility: The innovation must be “useful” to be patentable. 35 U.S.C. §101. The USPTO has some very involved guidelines as to what fulfills the utility requirement, but in practice the bar for “usefulness” is set pretty low. I mean, someone has a patent on a method of swinging on a swing, so…
- novelty: The innovation has to be new, which basically boils down to it not being known, used, patented, or published before the inventor came up with it. This is where the patent examiner at the USPTO will look for “prior art” (patents and other publications) looking for evidence that the invention has been done before.
- nonobviousness: Is the (supposed) innovation something that would be “obvious to a person having ordinary skill in the art at the time the invention was made”? 35 U.S.C. §103.
- enablement: The patent application has to describe the invention in sufficient detail such that anyone “skilled in the art to which it pertains” can read it and be able to make and use the invention. 35 U.S.C. §112. Since a patent is a deal society makes with the inventor wherein the inventor gets a 20(ish) year monopoly in exchange for disclosure on the particulars of the invention, the patent application has to actually describe the particulars of the invention enough for it to be replicated without “undue experimentation.” In re Wands, 858 F.2d 731 (Fed Cir. 1988). The inventor can’t apply for a patent but also hold back some “secret sauce” of the invention to make sure no one else knows how to make it.
What does a Patent Do?
Having a patent on an invention means that you have the exclusive right to make, use, and sell the patented invention for the duration of the patent.
However, just because you have a patent on something doesn’t mean others are automatically stopped from doing the same thing a patent holder has to actively seek out and try to stop patent infringers. For example, Microsoft has had a patent on the whole concept of awarding achievements in games since before the launch of the Xbox 360, but that hasn’t stopped Sony from rolling out its Trophy system, or the inclusion of achievements in Steam. (Either Microsoft has chosen not to pursue a patent infringement action against Sony and Valve, or there’s some kind of patent licensing deal going on between them.)
Also, just because a patent has been issued doesn’t mean it’ll necessarily hold up to scrutiny in court. When a patent application is filed, it just has to pass muster with a patent examiner at the USPTO, and after a back-and-forth process of them going “hey we found these things that are kind of like what you’re saying you invented” and you replying “no my new awesome thing is totally different and here’s why,” once the patent examiner is satisfied that your application fulfills the elements of patentability listed above, you are issued your patent.
However, suing someone for infringing your patent is a whole different story. Namely, it involves opposing counsel who will be very motivated to poke holes in your patent, and often patents that are issued without much fuss are declared invalid by a court after being put under such scrutiny. Thus, many inventors/companies often seek patents as “shields” to prevent themselves from being sued for patent infringement (or to strengthen their argument if/when they are sued), rather than as “swords” to be used to sue others for patent infringement.
(Game devs probably aren’t going to be too concerned with trade secrets, but here’s what they are in case the topic ever comes up in conversation.)
A trade secret is 1) information 2) that has reasonable measures taken to protect it, and 3) is valuable because it is not publicly known. 18 U.S.C. § 1839. Trade secrets are generally things like manufacturing processes or ingredient lists, and are usually only protected as long as they remain secret. In other words, you could keep your “secret sauce” protected under trade secret law as long as you did your best to keep it secret. (Contrast this with patents, which requires full disclosure of the “secret sauce” in order to be patentable.)
Basically, trade secret law is there to prevent “corporate espionage,” so it’s probably not the kind of thing the average game dev is going to be worried about.
tl;dr: If you’re a game developer, artist, composer, photographer, etc., you’re going to be most concerned with copyrights and trademarks. Copyrights are pretty cheap to register, and it’s not a bad idea to do that as soon as you reasonably can. Trademarks cost more to file, so that can wait until a little later. You probably won’t need to worry about patents unless you’re coming up with some fancy new hardware; you could potentially try to patent an awesome new game mechanic you came up with if you want, but it’s going to be expensive.