It’s easy to neglect ownership of your game content:
f all of the legal pieces are not in place, that developer may not actually own the rights to the content inside of their game.For independent game developers, it is relatively common to work “off the cuff” and without contracts. In situations where the main developer is a programmer, their art, music and graphic design may be done by someone else. Given the dubious financial situation of many indie developers before a first product is released, they often don’t have the money to pay someone like me to make sure everything is legally up to snuff.
However, if all of the legal pieces are not in place, that developer may not actually own the rights to the content inside of their game.
Let’s see why.
Three roads to copyright ownership:
hat if you don’t have the expertise in every field to create compelling content on your own?There are, essentially, three ways to own the copyright in your game assets, including the art, the source code and the text within the game.
- Create the content yourself;
- Get the copyrights assigned to you; or
- Have the content created as a “work made for hire.”
The first is easy enough; all you have to do is do all the work by yourself. But what if you don’t have the expertise in every field to create compelling content on your own?
That’s where copyright assignments would come in. However, this has to be in writing, which means you should have an attorney draft, at the very least, a form copyright assignment that you can use for each person working for you.
A better method is to have the work done as a “work-made-for-hire,” as the copyright law calls it.
“Works made for hire” explained:
When content is considered a “work made for hire,” it basically replaces the actual author of the work with the person commissioning the work, at least for copyright purposes.When content is considered a “work made for hire,” it basically replaces the actual author of the work with the person commissioning the work, at least for copyright purposes. You’re free to give credit for the art to the artist, but you, as the commissioner, would be the legal “author” and have ownership of the copyright.
There’s two ways that a work can be considered a “work made for hire.”
- It is created in the scope of an employer-employee relationship; and
- It is specially commissioned from an independent contractor, has to be one of nine specific work types AND there has to be a written agreement saying that it is a work made for hire.
In the first instance, content created by an employee during work hours would qualify. However, even work done outside of work hours may qualify if it is done on employer equipment or at the direction of the employer. Sometimes this is a fact-specific inquiry, so it’s best (as always) to have an attorney analyze the situation.
In the second instance, just having a specially commissioned piece of work isn’t enough. It must fall within this list of nine content types laid out in the copyright law:
- a contribution to a collective work;
- a part of a motion picture or other audiovisual work;
- a translation;
- a supplementary work (a work prepared for the purpose of introducing, explaining, revising, etc., a work by another author);
- a compilation;
- an instructional text;
- a test;
- answer material for a test; or
- an atlas.
Luckily for game developers, most work done for the game by another person would fall under the first two (for copyright purposes, a game is seen as an “audiovisual work”).
Then there must be a written agreement that specifies that the particular work should be categorized as a work made for hire.
Then there must be a written agreement that specifies that the particular work should be categorized as a work made for hire.These agreements usually have a backup clause that says that, in the event it isn’t seen as work made for hire, the creator assigns the rights in it to the developer.
The point is, if you want to continue exploiting your game in any way you want, it is vital that you get these agreements in writing. For assistance with this, feel free to contact a game lawyer for a free consultation. If you’d like more information about the various game development legal issues that devs face, why not check out my two free eBooks, as well?