3. @agatestudio
Introduction
• Legal issues is essential to success in game industry
• Mistakes can cost game developers in legal fees and
damages
• Legal matters in game development are frequently
complex and we should not rely on the information,
we should consult with experienced counsel.
• Copyright is one kind of Intellectual Property (IP),
besides trademark, patent, industrial design, etc.
4. @agatestudio
Copyright Law
• Important for we as a game developer or publisher
to familiar with the basic principles:
– Multimedia works such as games are created by combining
“content” – music, text, graphics, illustrations,
photographs, software – that is protected under copyright
law.
– Original 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.
6. @agatestudio
Works Protected
• Copyright protection is available for “works of
authorship”. Works of authorship include the
following types of works:
– Literary works
– Musical works
– Dramatic works
– Pantomimes and choreographic works
– Pictorial, graphic, and sculptural works
– Motion pictures and other audiovisual works
– Sound recordings
7. @agatestudio
Works Protected
• Example:
– content of the game will encompass the script that
describes the interactive pathways of game play that are
the basis of the game (a ‘literary work’ or ‘dramatic work’),
– images of the characters and the artwork that creates the
world of the game (‘artistic works’).
– completed visual elements of the game will be regarded as
a (‘cinematographic film’)
– code that governs the way in which the player interacts
with the game which requires programming codes that are
also separate copyright works
– BGM and sfx used in the game (‘musical works’).
8. @agatestudio
Obtaining Copyright Protection
• Arises automatically when an “original” work of
authorship is “fixed” in a tangible medium of
expression. Registration is optional (we have to
register before we file and infringement suit).
– Originality: it owes its origin to the author and was not
copied from some preexisting work.
– Fixation: it is made “sufficiently permanent or stable to
permit it to be perceived, reproduced, or otherwise
communicated for a period of more that transitory
duration.
9. @agatestudio
Scope of Protection
• Protect 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.
10. @agatestudio
Exclusive rights in copyright
• Reproduction Right: copy, duplicate, transcribe, or imitate the work in
fixed form.
• Modification Right : modify the work to create a new work. A new work
that is based on a preexisting work is known as a "derivative work."
• Distribution Right :distribute copies of the work to the public by sale,
rental, lease, or lending.
• Public Performance Right :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."
• Public Display Right : 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."
11. @agatestudio
Copyright Ownership in games
development
• If the work was prepared by an employee, then the employer is
automatically considered the author, unless there is an express written
agreement otherwise.
• If the work was prepared by an independent contractor, the work is
owned by the independent contractor, unless it is a specially ordered or
commissioned work.
• The Copyright Act delineates nine (9) specific categories of “specially
ordered or commissioned” work and requires an express written
agreement between the parties for a work prepared by an independent
contractor to be considered a work for hire. The specially ordered and
commissioned works are works for use as:
1. a contribution to a collective work, 2. a part of a motion picture or other audiovisual work, 3. a
translation, 4. a supplementary work, 5. a compilation, 6. an instructional text, 7. a test, 8. answer
material for a test, or 9. an atlas.
12. @agatestudio
Moral Right
• If you make a creative work, you have certain ‘moral
rights’ as the ‘author’ of that work whether you created
it as an employee or a contractor. You retain those moral
rights even where your employer owns the copyright in
your work or you have assigned that copyright. Moral
rights recognise your ongoing connection with your
creative work, and there are 3 types:
– Right of attribution: you can make sure that you are named and
acknowledged for your work.
– Right against false attribution: you can stop other people from
claiming that they created your work.
– Right of integrity: you can stop your work being used in a way
that harms your honour or reputation.
13. @agatestudio
Technological protection measures
• The Copyright Act 1968 (Cth) allows copyright
owners to use digital locks to stop their material
being accessed or copied.
• An access control TPM prevents a person from being
able to view or listen to the material, except when
using the appropriate access code.
• The sale and use of ‘mod chips’, game enhancers,
custom firmware and boot disks, that allow video
games systems to play backup or import versions of
video games, will probably breach the TPM
provisions of the Copyright Act.
14. @agatestudio
EULA and user created content
• These types of agreements are used to create the agreement
between the producer/operator of an online game such as a
Massively Multiplayer Online Roleplaying Game (MMORG) and the
purchaser/player of the game. The contents of the EULA, or the
terms of use, set out the legal basis of the relationship between the
producer/operator of the MMORG and the user.
• It is important to read the EULA, in particular to learn how the
ownership of ‘user created content’ is described in the EULA. The
terms of use of some MMORGs assert that copyright in all virtual
assets used in the game, including user created content, is held by
the operator of the MMORG. In contrast, the EULA of other
MMORGs acknowledge that users own the copyright in the user
created content and allow user to engage in transactions with other
users of the MMPRG using the ‘in world’ currency.
16. @agatestudio
Copyright infringement
• Anyone who violates any of the exclusive rights of a
copyright owner is an infringer.
• Example: 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).
17. @agatestudio
Copyright Infringement
• Just because you have the technology to copy these works, that
does not mean you have the legal right to do so.
• 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.
• 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
18. @agatestudio
Myths in Copyright Infringement
• 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.
19. @agatestudio
Myths in Copyright Infringement
• Myth #2: "I don't need a license because I'm using only a small
amount of the copyrighted work."
• 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.
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.
20. @agatestudio
Myths in Copyright Infringement
• 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.
21. @agatestudio
Myths in 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.
22. @agatestudio
Myths in Copyright Infringement
• 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.
23. @agatestudio
When I don’t need a license?
• Fair Use
– If your 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.
• 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, or because
the copyright owner failed to properly use copyright notice.
• Is Factual or an Idea
– 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 Work :D
