of legal issues is essential to success in the game industry. Mistakes
can cost the game developer tens or even hundred of thousands of dollars
in legal fees and damages. For example, Delrina lost hundreds of thousands
of dollars and had to recall all of the copies of its screen saver when
it lost a copyright suit. Delrina distributed a screen saver in which
one of the 30 modules showed the comic book character Opus shooting down
Berkeley Systems' "flying toasters" (made famous in Berkeley's "After
Dark" screen saver program). Berkeley Systems sued Delrina for copyright
and trademark infringement. The court ruled for Berkeley Systems, prohibiting
further distribution of Delrina's product and requiring Delrina to recall
all of the product not already sold.
Legal matters in game development are frequently complex and you should
not rely on the information in this primer alone. You should consult with
experienced counsel before making any final decisions.
The copyright ownership dispute between two leading game developers, Michael
Saenz and Joe Sparks, provides another example of the importance of dealing
properly with legal issues. The dispute focuses on whether Joe was an
employee or independent contractor of Reactor, Inc. (Mike Saenz's company)
when they developed the successful game "Spaceship Warlock." If Joe was
right in claiming that he was an independent contractor, he is co-owner
of the copyright and has a right to half of the profits from the game.
These profits could be worth hundreds of thousands of dollars. The court
did decide that Joe Sparks was a co-owner of the copyright and the suit
was later settled.
There are two reasons why it is important for you as a game developer
or publisher to be familiar with the basic principles of copyright law:
works such as games are created by combining "content" - music, text,
graphics, illustrations, photographs, software - that is protected under
copyright law. Developers and publishers must avoid infringing copyrights
owned by others.
games are protected by copyright. The Copyright Act's exclusive rights
provision gives game developers and publishers the right to control
unauthorized exploitation of their works.
law is a federal law, and so the law does not vary from state to state
(although the interpretation of the law maybe different in different courts).
This section summarizes the basic principles of copyright law, including
the types of works that are protected by copyright, how copyright protection
is obtained, and the scope of the protection.
Copyright protection is available for "works of authorship." The Copyright
Act states that works of authorship include the following types of works
which are of interest to the game developer:
works. Novels, nonfiction prose, poetry, newspaper articles and newspapers,
magazine articles and magazines, computer software, software manuals,
training manuals, manuals, catalogs, brochures, ads (text), and compilations
such as business directories.
works. Songs, advertising jingles, and instrumentals.
works. Plays, operas, and skits.
and choreographic works. Ballets, modern dance, jazz dance, and mime
graphic, and sculptural works. Photographs, posters, maps, paintings,
drawings, graphic art, display ads, cartoon strips and cartoon characters,
stuffed animals, statues, paintings, and works of fine art.
pictures and other audiovisual works. Movies, documentaries, travelogues,
training films and videos, television shows, television ads, and interactive
recordings. Recordings of music, sounds, or words.
Copyright protection arises automatically when an "original" work of authorship
is "fixed" in a tangible medium of expression. Registration with the Copyright
Office is optional (but you have to register before you file an infringement
suit in the United States if you are a United States company or citizen,
and registering early will make you eligible to receive attorney's fees
and statutory damages in a future lawsuit).
Here's what "original" and "fixed" mean in copyright law:
A work is original in the copyright sense if it owes its origin to the
author and was not copied from some preexisting work.
A work is "fixed" when it is made "sufficiently permanent or stable
to permit it to be perceived, reproduced, or otherwise communicated
for a period of more than transitory duration." Even copying a computer
program into RAM has been found to be of sufficient duration for it
to be "fixed" (although some scholars and lawyers disagree with this
the "originality" requirement nor the "fixation" requirement is stringent.
An author can "fix" words, for example, by writing them down, typing them
on an old-fashioned typewriter, dictating them into a tape recorder, or
entering them into a computer. A work can be original without being novel
Betsy's book How to Lose Weight is original in the copyright sense
so long as Betsy did not create her book by copying existing material
- even if it's the millionth book to be written on the subject of weight
creativity is required to meet the originality requirement. No artistic
merit or beauty is required.
A game can incorporate preexisting material and still be original. When
preexisting material is incorporated into a new work, the copyright on
the new work covers only the original material contributed by the author.
Developer's game incorporates a number of photographs that were made by
Photographer (who gave Developer permission to use the photographs in
the game). The game as a whole owes its origin to Developer, but the photographs
do not. The copyright on the game does not cover the photographs, just
the material created by Developer.
Copyright protects against copying the "expression" in a work, not against
copying the work's ideas. The difference between "idea" and "expression"
is one of the most difficult concepts in copyright law. The most important
point to understand is that one can copy the protected expression in a
work without copying the literal words (or the exact shape of a sculpture,
or the exact "look" of a stuffed animal). When a new work is created by
copying an existing copyrighted work, copyright infringement exists if
the new work is "substantially similar" to the work that was copied. The
new work need not be identical to the copied work.
A copyright owner has five exclusive rights in the copyrighted work:
Right. The reproduction right is the right to copy, duplicate, transcribe,
or imitate the work in fixed form.
Right. The modification right (also known as the derivative works right)
is the right to modify the work to create a new work. A new work that
is based on a preexisting work is known as a "derivative work."
Right. The distribution right is the right to distribute copies of the
work to the public by sale, rental, lease, or lending.
Performance Right. The public performance right is the right to recite,
play, dance, act, or show the work at public place or to transmit it
to the public. In the case of a motion picture or other audiovisual
work, showing the work's images in sequence is considered "performance."
Sound recordings - recorded versions of music or other sounds - do not
have a public performance right except for "digital performances" (a
very complicated term defined in the statute).
Display Right. The public display right is the right to show a copy
of the work directly or by means of a film, slide, or television image
at a public place or to transmit it to the public. In the case of a
motion picture or other audiovisual work, showing the work's images
out of sequence is considered "display."
certain types of works of "visual art" also have "moral rights" in the
United States which limit the modification of the work and the use of
the author's name without permission from the original author.
Anyone who violates any of the exclusive rights of a copyright owner is
Developer scanned Photographer's copyrighted photograph, altered the image
by using digital editing software, and included the altered version of
the photograph in a game that Developer sold to consumers. If Developer
used Photographer's photograph without permission, Developer infringed
Photographer's copyright by violating the reproduction right (scanning
the photograph), the modification right (altering the photograph), and
the distribution right (selling the altered photograph in his game).
owner can recover actual or, in some cases, statutory damages (which can
be as high as $100,000 in some cases) from an infringer. In addition,
courts have the power to issue injunctions (orders) to prevent or restrain
copyright infringement and to order the impoundment and destruction of
The term of copyright protection depends on three factors: who created
the work, when the work was created, and when it was first distributed
commercially. For copyrightable works created on and after January 1,
1978, the copyright term for those created by individuals is the life
of the author plus 50 years. The copyright term for "works made for hire"
(see below) is 75 years from the date of first "publication" (distribution
of copies to the general public) or 100 years from the date of creation,
whichever expires first.
Generally, the copyright is owned by the person (or persons) who create
the work. However, if the work is created by employee within the scope
of his or her employment, the employer owns the copyright because it is
a "work for hire." The copyright law also includes another form of "work
for hire": it applies only to certain types of works which are specially
commissioned works. These works include audiovisual works, which will
include most games. In order to qualify the work as a "specially commissioned"
work for hire, the creator must sign a written agreement stating that
it is a "work for hire" prior to commencing development of the product.
(Remember that this primer deals only with United States law; most foreign
jurisdictions do not recognize the "specially commissioned" work for hire,
and you need an assignment to transfer rights in those countries).
Avoiding Copyright Infringement
Current technology makes it fairly easy to combine material created by
others - film and television clips, music, graphics, photographs, and
text - into a game. Just because you have the technology to copy these
works, that does not mean you have the legal right to do so. If you use
copyrighted material owned by others without getting permission, you can
incur liability for hundreds of thousands or even millions of dollars
Most of the third-party material you will want to use in your game is
protected by copyright. Using copyrighted material without getting permission
- either by obtaining an "assignment" or a "license"- can have disastrous
consequences. An assignment is generally understood to transfer all of
the intellectual property rights in a particular work (although an assignment
can be more limited). A license provides the right to use a work and is
generally quite limited. A discussion of the terms of licenses and assignments
is beyond the scope of this primer (this discussion takes up several entire
chapters in our book).
If you use copyrighted material in your game without getting permission,
the owner of the copyright can prevent the distribution of your product
and obtain damages from you for infringement, even if you did not intentionally
include his or her material. Consider the following example:
Productions, Inc. created an interactive multimedia training game called:
You Can Do It. The script was written by a freelance writer. You Can Do
It includes an excerpt from a recording of Julie Andrews singing "Climb
Every Mountain." It ends with a photograph of Lauren Bacall shown above
the words, "Good luck."
a number of myths out there concerning the necessity of getting a license.
Here are five. Don't make the mistake of believing them:
Myth #1: "The work I want to use doesn't have a copyright notice
on it, so it's not copyrighted. I'm free to use it."
Most published works contain a copyright notice. However, for works published
on or after March 1, 1989, the use of copyright notice is optional. The
fact that a work doesn't have a copyright notice doesn't mean that the
work is not protected by copyright.
Myth #2: "I don't need a license because I'm using only a small
amount of the copyrighted work."
It is true that de minimis copying (copying a small amount) is not copyright
infringement. Unfortunately, it is rarely possible to tell where de minimis
copying ends and copyright infringement begins. There are no "bright line"
Copying a small amount of a copyrighted work is infringement if what is
copied is a qualitatively substantial portion of the copied work. In one
case, a magazine article that used 300 words from a 200,000-word autobiography
written by President Gerald Ford was found to infringe the copyright on
the autobiography. Even though the copied material was only a small part
of the autobiography, the copied portions were among the most powerful
passages in the autobiography. Copying any part of a copyrighted work
is risky. If what you copy is truly a tiny and nonmemorable part of the
work, you may get away with it (the work's owner may not be able to tell
that your work incorporates an excerpt from the owner's work). However,
you run the risk of having to defend your use in expensive litigation.
If you are copying, it is better to get a permission or a license (unless
fair use applies). You cannot escape liability for infringement by showing
how much of the protected work you did not take.
Myth #3: "Since I'm planning to give credit to all authors whose
works I copy, I don't need to get licenses."
If you give credit to a work's author, you are not a plagiarist (you are
not pretending that you authored the copied work). However, attribution
is not a defense to copyright infringement.
Myth #4: "My game will be a wonderful showcase for the copyright
owner's work, so I'm sure the owner will not object to my use of the work."
Don't assume that a copyright owner will be happy to have you use his
or her work. Even if the owner is willing to let you use the work, the
owner will probably want to charge you a license fee. Content owners view
multimedia as a new market for licensing their material.
In 1993, ten freelance writers sued the New York Times and other publishers
over the unauthorized publication of their work through online computer
services. And the Harry Fox Agency and other music publishers have sued
CompuServe, an online computer service, over the distribution of their
music on the service. The CompuServe suit was later settled, requiring
the payment of fees to the copyright owners of the music.
Myth #5: "I don't need a license because I'm going to alter the
work I copy."
Generally, you cannot escape liability for copyright infringement by altering
or modifying the work you copy. If you copy and modify protected elements
of a copyrighted work, you will be infringing the copyright owner's modification
right as well as the copying right.
Special Myths about the Internet
Much public domain material is available on the Net government reports
and uncopyrightable factual information, for example. However, much of
the material that is on the Internet is protected by copyright.
In addition to the general copyright myths discussed above, there are
a number of myths about how copyright law applies to copying material
from the Internet and posting material on the Internet. We’ll discuss
some of them in this section.
Copying Material from the Net
Don’t make the mistake of believing these myths about copying material
from the Net:
Internet Myth #1: If I find something on the Net, it’s okay
to copy it and use it without getting permission.
While you are free to copy public domain material that you find on the
Net, generally you should not copy copyrighted material without getting
permission from the copyright owner whether you find the material on the
Net or in a more traditional medium (book, music CD, software disk, etc.).
Internet Myth #2: Anyone who puts material on a Web server wants
people to use that material, so I can do anything I want with material
that I get from a Web server.
Individuals and organizations put material on a Web server to make it
accessible by others. They do not give up their copyright rights by putting
material on a Web server. Also, the person who posted the material may
not own it.
Internet Myth #3: It’s okay to copy material from a Home Page
or website without getting permission.
Much of the material that appears in websites and Home Pages is protected
by copyright. If you want to use something from someone else s Home Page
or website, get permission unless permission to copy is granted in the
text of the Home Page or website.
And don’t believe these myths about how copyright law applies to
putting copyrighted material owned by others on the Net:
Internet Myth #4: It’s okay to use copyrighted material in
my Web site so long as no one has to pay to visit my Web site.
Unless your use of the copyrighted work is fair use (see "Fair Use", later
in this article), you need a license to copy and use the work in your
website even if you won’t be charging people to view your website.
(You also need a public display license.)
Internet Myth #5: It s okay to make other people’s copyrighted
material available on my Web server so long as I don’t charge people
anything to get the material.
Copying and distributing copyrighted material without permission can be
copyright infringement even if you don t charge for the copied material.
Making material available for others to copy can be contributory infringement.
When You Don't Need a License
You don't need a license to use a copyrighted work in three circumstances:
(1) if your use is fair use; (2) if the work you use is in the public
domain; or (3) if the material you use is factual or an idea.
You don't need a license to use a copyrighted work if your use is "fair
use." Unfortunately, it is difficult to tell whether a particular use
of a work is fair or unfair. Determinations are made on a case--by-case
basis by considering four factors:
#1: Purpose and character of use. The courts are most likely to find
fair use where the use is for noncommercial purposes, such as a book
#2: Nature of the copyrighted work. The courts are most likely to find
fair use where the copied work is a factual work rather than a creative
#3: Amount and substantiality of the portion used. The courts are most
likely to find fair use where what is used is a tiny amount of the protected
work. If what is used is small in amount but substantial in terms of
importance, a finding of fair use is unlikely.
#4: Effect on the potential market for or value of the protected work.
The courts are most likely to find fair use where the new work is not
a substitute for the copyrighted work.
work serves traditional "fair use" purposes - criticism, comment, news
reporting, teaching, scholarship, and research - you have a better chance
of falling within the bounds of fair use than you do if your work is a
sold to the public for entertainment purposes and for commercial gain.
Consequently, the use of copyrighted materials in most games does not
qualify for fair use.
You don't need a license to use a public domain work. Public domain works
- works not protected by copyright - can be used by anyone. Because these
works are not protected by copyright, no one can claim the exclusive rights
of copyright for such works. For example, the plays of Shakespeare are
in the public domain. Works enter the public domain in several ways: because
the term of the copyright expired, because the copyright owner failed
to "renew" his copyright under the old Copyright Act of 1909, or because
the copyright owner failed to properly use copyright notice (of importance
only for works created before March 1, 1989, at which time copyright notice
became optional). The rules regarding what works are in the public domain
are too complex for this primer, and they vary from country to country.
Ideas or Facts
You don't need a license to copy facts from a protected work or to copy
ideas from a protected work. The copyright on a work does not extend to
the work's facts. This is because copyright protection is limited to original
works of authorship, and no one can claim originality or authorship for
facts. You are free to copy facts from a copyrighted work.
Creating Your Own Works
Naturally, you don't need a copyright license for material which you create
yourself. However, you should be aware that the rules regarding ownership
of copyright are complex. You should not assume that you own the copyright
if you pay an independent contractor to create the work (or part of it).
In fact, generally the copyright in a work is owned by the individual
who creates the work, except for full--time employees working within the
scope of their employment and copyrights which are assigned in writing.
This primer is based on the Multimedia Law and Business Handbook (1996)
from Ladera Press, which has been praised by the Interactive Multimedia
Association. This summary of the law should not be viewed as "answering"
most questions (the book discusses these issues in more detail in 320
pages and includes twenty -two sample agreements to show how these issues
are dealt with in actual transactions) You can order the book by calling
800-523-3721 or faxing 810-987-3562.