Intellectual Property and Hobby Game Development

Jul 8, 2013

Combined with the e-mail question below, this post is particularly relevant in light of a recent news posting making the rounds, Treehouse Targets Indie Studio with Threat of Patent Infringement Lawsuit. Intellectual property is absolutely a topic that videogame developers, even if indie, student, hobby, or only doing noncommercial projects, really should try to become better acquainted with!

(Though ultimately – as I’ll stress repeatedly in the entry that follows – developers should be consulting with a real lawyer over any and all questions, rather than acting dangerously on their/our own informal and necessarily incomplete knowledge of these complicated subjects. This entry is offered only as a starting point on some terminology and concepts, and hopefully helpful in steering readers towards what kinds of questions to ask and search for, perhaps raising awareness of complications that otherwise may not have been recognized before as potential issues.)

This post is available in audio form.




Music by BoxCat Games, via Creative Commons Attribution 3.0

Transcript:

Q: I was thinking about making a game as a hobby based on a licensed property. If I were to release it, I would not charge for it and it would be free to anyone who wants it. Would that still be an issue if I don’t secure the rights to use the property? (BTW, the series is… pretty old at this point, so I’m not sure that even if I didn’t have the rights to do so, if the owner would even pursue any action.)

A: Hello! As always, I want to thank you for taking the time to write. It’s always helpful to receive questions, since whatever the question is, as with in a classroom you’re never the only person wondering about it.

I Am Not a Lawyer

Necessary disclaimer: this is not intended to serve as nor be a substitute for real legal advice. The responsible and best thing to do to stay out of trouble is to consult a lawyer with specific questions before acting on such matters. If you do decide to act without a lawyer’s guidance on these kinds of matters, that would purely be your risk to bear, not mine, because as mentioned, this really is not intended to serve as legal advice or substitute for that kind of thing.

(Void where prohibited. Some assembly required. Not available in all areas.)

But I Am an Active Game Developer

I’m just another non-lawyer trying to offer another perspective from my own experience making games and wondering about, reading about, and maybe even sometimes coming a little uncomfortably close as a practicing videogame developer to crossing those same kinds of lines in terms of IP.

This is going to be a little overly thorough, since I’m adapting this to be a more general entry for more than just the reader who wrote the question. So I’m going to begin by giving sort of a high level review of some of the main areas of intellectual property, as they might affect our videogame development.

TL;DR Short Answer

But first of all, to get to the short answer…

If I had the venture a guess of the technical answer: it can still absolutely be an issue, and therefore no, you really should not do it.

But life is a lot more colorful than technical answers tend to reveal. At least from a practical standpoint, there may be some gray area here, or at the very least, some sliders along a continuum to consider when thinking about what you’re comfortable with and what remains true enough to the purposes you have in mind.

Terms Review: 4.5 Kinds of IP

We’ll being with a primer on what’s a short take* on “4.5” main categories of IP. This won’t seem super short, but as a reminder: shelves can be filled with countless thick volumes on details and particular cases about any one of these, there’s people who specialize in these topics and devote years of their lives just to work with it. This really is the short version.

1-Trade Secrets

Company processes or recipes that aren’t public knowledge, which help give a company a competitive edge based on what they know that they take measures to prevent competitors from becoming aware of. I have the least familiarity with this one, but loosely speaking I believe the gist is that if someone finds out exactly how Coca-Cola is made, and then sells that information to a competitor, it could have a negative financial impact on Coca-Cola, the competitor could get in trouble for using it, and that someone could be in even bigger trouble for his or her role in the exchange.

For a videogames example of this: a few years ago when social games were still massively on the rise, new competitors entering the space against Zynga were hiring away employees from Zynga, at every level from executives down to entry-level line workers. Some of people coming from Zynga, or so some reports seemed to indicate on the web, were potentially taking with them documents about Zynga’s game development and monetization processes, which is of course no good. That’s fundamentally an intellectual property issue, though about trade secrets, which really isn’t closely tied to the question you’ve posed.

2-Patents

Patents give inventor’s rights to control who can manufacture and sell their inventions, in exchange for the details of that invention going on public record and becoming public property after some period of time.

Patents most often are associated with physical inventions, like a more efficient and reliable mechanism to pull a roller coaster up rails, but sometimes intersect videogames when they relate to proprietary hardware (I believe Nintendo has patents on how their classic D-Pad works, which is part of why many competing D-Pads felt/feel flimsy or inferior), complex methods/algorithms (John Carmack figured out a self-shadow algorithm for Doom 3’s lighting engine he wasn’t able to keep in the game because some other company had a patent on it already), or occasionally even weird gameplay features like Namco’s patents on playing minigames during load screens or ways of handling fighting move tutorials in-game. Patents are crazy expensive, but can sometimes be worth money when a company gets acquired, which is part of why people invest in them, and also get justified as a form of corporate mutually assured destruction, i.e. if your company comes after our company over complaints about your patents we’ll come after you with ours, and so they both want to have an arsenal built up of their own and from acquired companies. I believe just this sort of thing exploded in the case of iOS and Android devices, but not really our topic here. Note too that a patent can be filed but then turn out to not hold up in court, just because it exists doesn’t necessarily mean it’s valid, which is confusing and weird and slightly terrifying, and why lawyers get paid a lot of money to sort that mess out.

Patents in software are a lot less common than trademark or copyright considerations though so we’ll shift that direction. I wanted to acknowledge those as categories though, to distinguish it from these other two, which are more closely related, without misrepresenting these next two as the whole of what IP seems to be about:

3-Trademark

Trademark is a word/phrase, stylized logo, or even a fictional character/mascot. If your game has “Star Wars” in the title, if you use the PS3 logo without permission, or want to include a depiction of the Geico Gecko on your game, those could fall under trademark infringement rather than copyright infringement. These get protection for a different reason than patents, here it’s because a company or individual invests money into creating brand value, recognition, and associations with their label, which then has sellable worth, and if others go use it without permission it could dilute its value by, for example, Marvel gradually losing authority over the public representation of their X-Men superheros, or in another direction devaluing people’s perception of Marvel as a brand by associating it junk people put that label on.

This is also to protect consumers from deliberate brand confusion, rewarding companies that take responsibility for both quality and mishaps. So if Sony invests a ton of money into establishing its reputation as a manufacturer of reliable consumer electronics, then some crummy knockoff company that cuts corners on parts and processes shouldn’t be able to slap Sony on their alarm clock to sell more clocks. They’d be benefitting from Sony’s value by misleading consumers about what they’re buying and from whom.

4-Copyright

Copyright is (loosely) protection over a specific implementation of an idea, and is focused largely on creative, artistic artifacts. Whereas patents can be extremely expensive and complicated to file, and trademarks can be fairly expensive but comparatively simpler in relation to, say, patents, with copyright thanks to the widely-accepted Berne Convention you basically have automatic copyright on every version of everything creative you do at the moment you do it. (Note that if certain work is being created for pay, part of the agreement signed may explicitly transfer the copyright or other types of IP for that specific work to the paying company.)

Everything you write, paint, draw, play on piano, etc. you have a copyright over, and that encompasses a set of rights, any one of which could be sold or granted independently of one another, such as your right to be credited for its reuse, whether someone’s allowed to reuse it at all, whether someone is allowed to make variations of it, whether someone can sell it or a variation of it…

Also note that even though copyright is automatic, if it comes down to a court case paperwork and some modest filing fee that needs to take place for that to proceed. If that registration paperwork fully existed well before the complaint began I suspect (again, not a lawyer!) it probably makes for a stronger case. It’s also suggested to have a clearly visible copyright notice (“Copyright 2013 by Chris DeLeon” or “© 2013 Chris DeLeon”), to be able to later make clear that you’ve claimed the copyright.

4.5-Personality Rights

The last 0.5 of the 4.5: “Personality rights” relates to the rights to use a famous person’s likeness, name, or possibly real voice in association with a product. I’m not sure whether they are more related to trademark, copyright, or something else entirely, but they’re absolutely a real thing. Sometimes a game based on a movie has a generic hero face or generic voice actor instead of the real Hollywood star not for lack of a good reference photo or capability to extract usable vocal audio from the movie, but because celebrity likeness rights can be expensive on top of and separate from the actual show or movie license.

Breakdown

So far sake of example, at least as I understand it:

If you put the show’s logo on your title screen, or the name of the show in your game’s title: trademark issue.

If you took the show’s theme song and played it in your game, or a clip of video from it, or even a model/texture/sound from some other company’s game: copyright violation.

If you wanted to show a depiction of the main actor or actress: personality rights concern.

Fan Works

Fan fiction and related areas of fandom by the way is a terribly complicated legal territory, and I suspect with a lot of case-by-case variation between company attitudes, and a great deal of consciously looking the other way.

Back when it started as a cultural phenomenon, huge companies seemed to have a scorched earth policy about shutting it down everywhere it cropped up, in order to maintain total control over their IP. But in the past several decades some IP owners have opted to embrace fandom and fan culture and fan fiction as a part of a healthy fan community. They might go as far as hosting conferences, embracing/highlighting the best of it, maybe even offering some official involvement (like a company hiring a modder to join the real development team). But that is by no means universal and should never be assumed.

What I’d Consider

Now, for real, back to the actual question, with a focus on the practical considerations I’d be weighing:

Not Charging Does Not Equate to Fair-Use

1. People on the internet often spread the impression that as long as you’re not selling it, it’s legal and fair to do. At least as I understand it, that’s simply not actually true. Practically speaking, it probably does paint a much bigger target on your back if you make millions of dollars misusing someone else’s IP, and that company might chase after you for its cut and/or to shut you down for doing that. Practically speaking, even though huge companies have entire departments full of lawyers, they’re pretty busy with a lot of real business to worry about, and whatever someone’s doing without making any money and especially if it’s not drawing any real attention is probably a lot less likely to get them to make time to come after you.

But it also happens sometimes that some teenager somewhere is just making a mod about their favorite childhood IP, then a lawyer sends them a generic/form, a Cease & Desists letter, that says either shut that down immediately or face further legal action. The C&D letter takes them no longer to create than it does to type an address for an envelope and add postage, and with the receiving party knowingly on empty legal ground for what they’re doing (having gotten no permission, no licensing, plus usually no real financial or legal resources to fight their seemingly defenseless position in court anyhow), this generally means instant death of that project, which is always a real risk when toying with IP that isn’t theirs. Note by the way that as a general rule of thumb (again: not a lawyer, not a lawyer, not a lawyer, I might be totally wrong about this!) provided you’re not making real money off it seems like a lot of the time you’re more likely to get shut down by an intimidating letter than fined an exorbitant amount or thrown in jail. I’m sure there’s exceptions to that, but that seems to be at least in the handful of cases I’m familiar with, what often goes on.

Unless of course you’re messing with the record industry, as their policy seems to be to “make an example of” people by randomly selecting targets who once had 3 mp3 files on their computer then putting them into debt for decades. But record industry isn’t really what we’re talking about here.

Many people think that what they’re doing is “fair-use” when it absolutely isn’t. There are certain limited uses for the purposes of art, education, commentary, criticism, parody, news – but there are a ton of details about those particulars written up on the web by actual lawyers if you’re curious. It doesn’t actually matter if it’s “pretty old” unless it’s so extremely old that falls into public domain. It doesn’t actually matter if the original owner is no longer making money from it, or even still in business, because the rights to decide when/how/whether to begin generating revenue from those properties again get passed around and sold as business assets for long after their initial use.

Don’t trust my word on it or on web forums, before deciding that what you’re doing is Fair Use. Really, you should be digging for the explanation of Fair Use by someone who has really committed the time and education to learn the ins and outs of it. Of course even if it’s a website or article unmistakably written by a lawyer it’s still just a starting point, and a real conversation with a lawyer could be instrumental in staying out of trouble from a misunderstanding.

Plus, an unsettling secret I’ve run into from working with lawyers: not all lawyers see eye to eye on exactly what some of these things and their ramifications are, either! Sorting out what’s right in any given case is part of why we have a debate-like court system. What your lawyer thought can turn out to be wrong.

Even in the event that you’re right about something though, proving that’s the case in court can be time consuming, costly, and a ton of hassle, so unless you’ve got a really important artistic or critical statement worth raising a ruckus over, or the strength of solid representation (in which case I have to imagine you wouldn’t be e-mailing a game designer a law question) it’s probably preferable to just stay out of their sights of these kind of people and not risk drawing any more attention than you have to.

Who Will See It?

2. Who will see it? If it’s you and your roommates, you can probably get away with virtually anything. Although even if it’s you and a classroom, that’s still probably true, but what if one of them records it with their phone and posts it to YouTube, and then what if it blows up getting a ton of views, shows up on the front page of Reddit, and the company gets wind of it that way? Now, it’s unlikely, but it’s possible, and if it’s not something you’d be comfortable with, that’s something to consider.

Now I’ve admittedly made some small throwaway noncommercial videogame projects designed specifically to reach tiny audiences, measuring in the hundreds at the most, that I probably came closer to using IP in in ways that I absolutely would never do in one of my “real” games, either commercial or even purely as a hobby, that had potential for significant reach and visibility.

Similar, or Inspired By, Instead of Licensed

3. Is there a way that you can be safer or more clever about it by speaking to the same audience, even appealing to some of the same themes or ideas, without going so far as to incorporate any of the original characters, music, title/logo, etc.?

Space Invaders wasn’t originally going to be about space conflict, but it changed in development when the developer saw a Star Wars ad. A ton of films and games around that time were capitalizing on widespread interest in space from the moon landing.

Around the time that Fast and the Furious and Gone in 60 Seconds were big from theaters, Need for Speed Underground appeared with options to upgrade neon under lighting and custom mufflers on street racing cars. The same year District 9 came out in theaters a game about battling space aliens came out called Sektion 8. The old Contra games heroes and enemy characters were blatantly inspired by movies like Aliens and Predator. The pinball machine F-14 Tomcat came out shortly after the movie Top Gun prominently popularized that model of fighter jet. After The Matrix popularized bullet time Max Payne capitalized on it with time-slowing pills. The spiral effect on the rail gun in Quake 2 was based on the effect for the rail gun from the movie Eraser, and the see-through-walls effect of the Farsight in Perfect Dark was based on the functionality of that same gun from Eraser (the MagSec in Perfect Dark also closely resembles the sound and appearance of RoboCop‘s pistol). I imagine it goes without saying that after Twilight became huge, we were seeing werewolves and teenage vampires everywhere, and that Harry Potter brought in its wake a ton of other kids books about little witches, little warlocks, and little wizards.

StarCraft, depending who you talk to, seems to be very blatantly an appeal to fans of (or arguably a rip off of) Aliens, Predators, and/or WarHammer 40k.

So can you make a game based on a licensed property without securing the rights? No. Not really, not technically. I mean you’re probably capable of doing so, however the better your game does, even if it’s free, the more risk you’ve put yourself in for trouble. But what you are far more likely to be fine doing, at least based on observations of what so many other high visibility companies seem to have gotten away with doing for decades now, is to borrow or build upon the basic idea, as long as you riff on it, find a way to really make it your own, and don’t try to imply any association official or otherwise with the property in question.

Probably ok: a game about teens that slay vampires.

Probably not ok: a game called Buffy the Vampire Slayer, featuring Buffy the Vampire Slayer.

Somewhere fuzzy in-between, and exists on a sliding continuum from cowardly to really playing with fire: a game about teens that slay vampires that has clear allusions to or similarities to Buffy the Vampire Slayer but doesn’t specifically call itself that or otherwise make the association explicit.

Anyhow, that’s the best of what I’ve got to offer on the question at the moment. Hopefully it’s at least a little bit helpful in providing some additional things to consider.

Whatever you decide to do, good luck!

This is What Lawyers Are For

And again, it’s really important to stay out of trouble in these kinds of things. If you’ve got the resources I really recommend talking to a lawyer about any questions you might have. Or, at least, find another source that’s not just another game designer trying to talk as best he or she can from his or her own limited experiences and reading.

Questions Help Me Improve HGD

Thanks again for writing with a question! As always, if you ever have other questions about game development, please take a moment to let me know what you’d like covered. Whatever the issue, I’ll do my best to cover it.

I appreciate you taking the time to listen. Once again: Chris DeLeon for HobbyGameDev, and I’ll have another entry coming for you soon.



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8 Comments

  1. Victoria says:

    Thank you for such a detailed analysis. Ad though you are not a lawyer, nor am I, I think this is a great help for many game developers, especially those that just like developeing games and don;t even think about legal issues. Honestly, I have not know some of the points myself, so I think your text is a must before strating to develop a new game (at least if the idea is not totally original and your own)

  2. Eric Finlay says:

    What a timely post! My partner and I just had a conversation that was about how close to an existing property part of our project is allowed to be and the conclusion was “Let’s Google it and see what the probable risk is”.

    So thank you for your non-lawyer advice, it’s much easier to understand/act on than the real lawyer advice 🙂 (cheaper too).

    • Chris DeLeon says:

      > it’s much easier to understand… than the real lawyer advice

      Great to hear! Thanks.

      > it’s much easier to… act on than the real lawyer advice

      Ahhhhh terrifying! The absolutely-not-a-lawyer voice in my head feels the need to reiterate here there that this is not intended as legal advice, and really should not be acted on without contacting an actual lawyer for clarification. That would be the medical equivalent of saving money on surgery by reading a non-surgeon’s blog post about cutting someone open, then trying it at home. I fully understand (from experience) that lawyers can be expensive, though two things to keep in mind about that: (a.) in terms of billable hours you may not actually need much of one’s time to clear some important things up (b.) depending on what you’re doing and what kinds of risks you’re taking, that modest bit of expense upfront can potentially save or avoid a much larger expense down the road.

      Good luck!

      • Eric Finlay says:

        Haha, okay I can see my comment being a worrisome thing to read. But don’t worry! In your example of the doctor what I’m doing is a lot closer to “Oh, that’s how you take out an appendix…I better not try that”.

        I fully appreciate there will be a time to lawyer up properly on this one – but for now this is sufficient advice to not shoot myself in the foot, I think.

        Cheers 🙂

      • Anonymous says:

        It’s just ridiculous though, especially when I’m making a game that will be free for everyone! Maybe if you are selling the game, then you can afford to have a lawyer, just take his fee out of your profits. But if you’re giving it away for free, then why should you have to pay! IP Law is messed up in this country that’s for sure.

        • Chris DeLeon says:

          > if you’re giving it away for free, then why should you have to pay!

          I tried to address this in the post above, although the gist is that the creators of that intellectual property have the right to control the quality and meaning associated with it by the general public. When an organization or individual has invested considerable cost, time, and risk toward building up an idea with public value, doesn’t it seem at least a little unfair that someone else should be able to get a free ride toward fame and recognition out of making unauthorized free works associated with the recognizable brand? Again, sometimes this happens and gets allowed within the domain of fan fiction and related convention culture, but my lay understanding is that that’s a rather complicated minefield of legal issues and companies making a conscious decision (but a decision that they have the right to make) when and why to look the other way.

          > IP Law is messed up in this country that’s for sure.

          IP law is extraordinarily complicated, and I won’t for a second try to claim that it isn’t a bit of a tangled mess in the form it has evolved into. However what I will point out is that this country continues to produce a staggering amount of leading entertainment and other IP of all sorts that gets recognized throughout the industrialized world and forms the bedrock for a lot of jobs and related businesses. Other countries with less sophisticated IP laws or frameworks that don’t protect the business opportunities of IP creators don’t have nearly the same track record for massively exporting successful films, songs, videogames, comics, branded theme parks, and a whole host of other IP-centered businesses that are less visible to everyday consumers. IP law far from perfect. It’s probably (I admittedly don’t understand it well enough to say for certain!) more than a little bit outdated and could probably stand some thoughtful updating. But as someone that generates and works with ideas for a living, I’m honestly glad that it’s there, even for all the complications and inconveniences that it may bring with it.

          I’m definitely not trying to convince you to change your position – in my experience beliefs on this topic are held intensely by people on both sides. It can practically feel like arguing over religion. All I mean to do is offer my perspective on the matter for consideration. Or perhaps more importantly, with the blog entry above, I’m only trying to offer what little information or guidelines I can to help people thoughtfully navigate the situation that we’re still in for the foreseeable future, rather apart from whether or not it’s how our values suggest things ought to be.

          Thanks for taking the time to comment!

  3. Uncompetative says:

    I’m developing a videogame called ‘Universe’ which consists of entirely original content, but also includes all the tools I used to create that fictional environment. I’m still years away from release, but hearing more and more about IP and C&D letters I sought free legal advice from the polite people at http://www.newmediarights.org which, unfortunately, weren’t much help to me as I am in the UK and they only advise on US media law. Everything, you have said makes sense. Parody, criticism and spoofs seem to fall under fair use which presumably explains the existence of Robot Chicken Star Wars on the TV. It would be unreasonable for LucasArts to create something of cultural resonance and try to stamp out anyone commenting on a phenomenon familiar to millions.

    However, I was concerned that I would be liable for the copyright infringements of others who used my tools to create “a Star Wars galaxy”, etc.

    Little Big Planet is a very popular game creation toolkit which ships with some original planets, but expects its players to make their own. Obviously, many of these are pastiches of popular franchises and its vibrant User Generated Content community was upset to find many of their planets deleted by Sony for suspected copyright infringement:

    http://kotaku.com/5081159/lbp-levels-getting-moderated-out-of-existence

    I would have liked to make it so ‘Universe’ allowed players to travel to galaxies hosted on a user’s web server, but I now feel that even this puts me in an awkward legal position. It may be that Little Big Planet was forced to moderate all its potentially infringing UGC due to it being hosted on Sony’s central server. If I avoid even hyperlinking to “The Top Ten Galaxies of the Month” on my own blog, I’m hopeful that I won’t get sued.

    • Chris DeLeon says:

      Again, as always on this topic: I’m not a lawyer, and this is not legal advice. Best course of action for any of this is absolutely to find and talk to a lawyer that understands the laws for the part of the world that you’re in.

      > which presumably explains the existence of Robot Chicken Star Wars on the TV

      I would be wary of reading too much into things like this apart from any real details on what was involved. Maybe they got permission. Maybe the respective creative owners have personal reasons for not pursuing action. Maybe the team made the content knowing there was some risk of action, maybe action was initiated, maybe a legal department had to be paid to settle or skillfully deflect the matter. I don’t know, but the important thing to note is that there may well be important details that we’re unaware of when looking at something from the outside like this.

      > However, I was concerned that I would be liable for the copyright infringements of others who used my tools to create “a Star Wars galaxy”, etc.

      There are indeed some complex open questions about the nature of user generated content IP issues, some of which were explored in recent history by Marvel’s suit against the game City of Heroes over the game enabling users to create knockoffs of Marvel’s protected characters. I’m no expert on that case, but I believe it relates to what you’re thinking about here, and may be worth reading up on.

      Similar content control issues are faced on high profile sites like YouTube, which is frequently abused by users to host copyrighted material. One casual metaphor I’ve heard described that helped me better frame two opposing sides to the debate: whereas one side thinks of YouTube like a copy machine (“we wouldn’t sue the copy machine manufacturer because someone used it to illegally copy an entire book”), the other side claims that YouTube is more like a big warehouse which the owner fully understands is being used to shelter illegal acts (“if someone is knowingly allowing illegal activity to happen on their premises, they are liable to report, prevent, or otherwise cooperate with the government in policing it”). Needless to say, that’s a gross oversimplification of both sides, and of course a website is neither a copy machine nor a warehouse, but I simply found these two frames helpful in better understanding how people on opposing sides of the argument could both imagine that their position is obvious and perfectly reasonable by relating it to different pre-digital examples.

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