Many laws that are applicable to video game development are out of step with new technology and practices. This can make legal compliance challenging for video game companies. If you are involved in video game development, it's critical to work with an experienced video game attorney. Priori's on-demand marketplace can help you connect with the right video game lawyer for your unique needs.
Intellectual property of video games is vital to the success of any developer, yet IP protection for video games is more complicated than for most products. The effectiveness of any single legal instrument is limited, which means video game lawyers use a combination of IP protections to ensure the best protection of your valuable work.
As creative works, video game artwork, code, music, and sound effects are all protected under copyright law. Any work created by your employees during their typical job duties are automatically copyrighted, giving your company the exclusive right to sell, distribute, reproduce, modify, and display such work. This copyright does not have to be registered with the U.S. Copyright Office, but registering these protections formally allows you to better protect your video games by allowing you to pursue remedies against anyone infringing on your rights.
Copyrights don’t fully protect your video games, however. Copyright law only protects the the specific expression of any idea. It does not protect against someone “borrowing” the underlying idea in a video game and remaking it with different artwork, characters, music, and code. As such, video game mechanics, functionalities, and rules are not entitled to copyright protection—only the game’s "expressive elements.” Because of this, it is possible for other companies to develop similar games to compete with yours. That’s why it is vital to consult an experienced video game attorney about other ways to protect your IP, especially trademarks and well-considered suits against “substantially similar” work.
Trademarks are important in protecting any brand. Any distinctive marks that represent a company can be protected under federal trademark law when registered with the U.S. Patent and Trademark Office. For video games in particular, however, trademarks serve an even more important role. Avatars, images, and other elements of games can sometimes be trademarked, which lends an added layer of IP protection against infringement. A full IP strategy for video game development is vital to ensure all bases are covered.
Many developers use open source code in their games. This is, of course, allowed, but it is important to check what responsibilities you are tied to after taking advantage of the open source code. Some open source licenses include copyleft provisions, which require any derivative works to use the same license as the original work. Make sure to carefully consider the legal implications of open source code before including it into your final product—or before you license your own work as such.
Independent Contractor Agreements
Many video game developers use freelance coders and artists to help develop graphics and other elements of games produced. Because the independent contractor relationship isn’t covered by work-for-hire doctrine, anything freelancers produce isn’t automatically the IP of the company funding the work. Instead, the freelancer holds the copyright until it is transferred. Unless this process is well-defined in the independent contractor agreement, you may find yourself forced to license work already developed, precluded from using the work entirely, or even lose the work to a competitor willing to pay a higher licensing fee.
Any independent contractor and non-disclosure agreements signed for work on video games must specifically address the ownership of work created, as well as a host of other legal issues unique to the video game world. The best way to ensure all your bases are covered is to solicit the help of an experienced video game lawyer in creating the standard agreements used by your company.
Terms of Service
Every video game must have unique terms of service, which function as rules on how the game is played and how the product can be used. Terms of service also act as disclaimers that protect development companies from unexpected liabilities. In order to limit your liability and protect your game from costly lawsuits or consumer protection prosecutions, video game terms of service should be carefully drafted in order to minimize developer exposure.
Data Protection and Privacy
All video games must comply with data protection laws and include proper security protections in the code, especially those games that can be played by multiple people over the internet. All data protection must be integrated into the code at an early stage of development, which means that developers need to be aware of these legal issues even during the earliest stages of development. Rather than struggling to create effective patches during later stages of development, it is best for developers to consider privacy protections as early in the process as possible.
While few concrete laws have been passed regarding digital ethics and video game ethics, this remains a huge area of debate in the area of video game law. Controversial elements of games that denigrate a protected civil rights group may fall under hate crimes laws, and sexualization of characters in demeaning ways may infringe upon similar statutes. In addition, inappropriate content for children not marked as such may fall afoul of other laws. Your company may even be held responsible for not preventing bullying that happens on your platform. You can submit your game for rating by the Entertainment Software Rating Board, which will rate your game for age appropriateness as well as content.
Although you have a right of free speech and to represent characters in your game any way you see fit, you may offend public sensibilities—or even break laws—by not considering digital ethics when developing your games. A video game lawyer can help advise you as these laws evolve.
Video Game Prizes: Games of Chance Vs. Games of Skill
Video game developers have often used prizes for tournaments and other similar incentives to drive gamer use and competition. Unfortunately, these prizes can get developers or tournament holders in legal trouble if they are not awarded carefully. In many states, gambling is highly regulated. Any gambling done over the internet even comes under federal jurisdiction under the the Unlawful Internet Gambling Enforcement Act.
While you may not think giving away a prize could be considered gambling, “games of chance” are included in the definition of gambling. Essentially, any giveaway where there is no skill required to win, such as a drawing or random selection of a winner is a lottery and must be registered with relevant state and federal authorities to be considered legal. Otherwise, you face sanctions under the Illegal Gambling Business Act. Video game tournaments, however, can usually avoid violating illegal gambling laws by ensuring that prizes are awarded based on a skilled competition. Games of skill are generally unregulated, and awarding prizes for getting the highest score or winning a video game based on some other objective metric is legal. If you plan to award prizes to players, a lawyer can advise you on whether your game will be categorized as a game of chance or skill.
What is a right of publicity and how does it apply to video games?
The Right of Publicity is a person’s economic right to commercialize their likeness as established in state law, which means you can’t use someone’s name, photograph, voice, or persona to commercialize your product without their permission. Using someone’s likeness in a video game—even years after their death— comes under some state statutes related to right of publicity. While you can parody a character, you cannot directly represent a famous person in commercial video game without permission. If you are not sure where the line falls, it may help to consult a lawyer.
What other legal issues can video game lawyers help with?
Lots. Video game law is a new specialty, which means it spans a wide area of law. If you are involved in video game development, a video game lawyer is your best option for specialized defense against legal issues that may face your company.