What does the Supreme Court copyright decision mean to game devs?

This year at GDC, I heard developers panicking over the recent Supreme Court decision on copyright registration.

How does this affect you? What can be done about it?

I’ll answer all of your copyright registration questions below – and even give you a special discount on copyright-related services!

Read on, game devs.

Game copyright registration and the Supreme Court decision

Background – Copyright before the Supreme Court’s decision

Before we get into the details of the Supreme Court’s decision and what you can do about it, we should go through some important background info on copyright registration.

Why register copyrights?

Copyright law gives you certain rights as soon as you “fix” your creative work in “a tangible medium of expression.”

This archaic language basically means that as soon as you draw a picture, save a digital file, or record a video of your dance choreography (“fixing” the work), you have copyright rights.

These rights include the exclusive right to:

  • Make copies of your work (“copy”right, get it?)
  • Distribute your work
  • Publicly perform your work
  • Make “derivative works” from your work – this could be translations, sequels, and other adaptations based on the original
  • And more!

Awesome, so you have these rights as soon as you make something – what’s the problem?

The problem is that you can’t really DO anything with those rights until you register them. Once you file a copyright registration, you can actually file a lawsuit against someone who is infringing on your copyright.

Even better, if you filed your copyright registration application within 90 days of your first publication of the work and before someone infringed on it, you could get some great benefits:

  • “Statutory” damages, which could be up to $150,000 per infringement and you don’t need to actually prove how much you were damaged in court (this is difficult)
  • Attorneys’ fees, which means that an attorney would be more likely to take a case on contingency (no out of pocket costs unless they win for you) – this is a huge benefit to indie devs and those without a ton of money for lawyers

The copyright registration process is somewhat complicated, with a lot of specific language that doesn’t make a ton of sense, very particular definitions, and requirements for filing certain specimens showing the copyrighted work.

It also takes a long time to go from the actual filing of the application to getting it approved. It can take anywhere from a few months to up to a year or more, especially if the copyright office finds any issues with the application.

Split circuit court decisions

Prior to March 4, 2019, there was a split among Circuit Courts as to whether you needed to have a fully-registered copyright before suing for copyright infringement.

Note: “Circuits” are groups of states that are overseen by a particular court – California, Washington, and most of the rest of the west coast are in the 9th Circuit, for example

First, is the “application approach.”

Most circuits in the US were of the opinion that you simply had to file the initial copyright registration application, and then you could file your lawsuit.

In my practice, I’ve done this many times, particularly for copyright infringement on photos and other timely issues where infringement moves fast.

On the other side are some circuits who take the “registration approach,” which means that the registration must be approved and granted by the Copyright Office before filing a lawsuit.

One of the main reasons that the Supreme Court will take up a case is because there is a “split” between circuits. The Supreme Court is the final arbiter of these splits, just like the one between the “application” and “registration” approaches.

And on March 4, 2019, they issued an opinion to resolve it.

Copyright registration for games

Fourth Estate v. Wallstreet.com – the Supreme Court rules on copyright registration

In resolving this split, the Supreme Court’s decision in Fourth Estate v. Wallstreet.com has a big impact on the ability for copyright owners to sue over infringement of their work.

The actual story of the case isn’t too important – it was about Wallstreet.com keeping Fourth Estate’s copyrighted news articles up on their site after a license agreement expired.

The real meat of the decision is their ruling.

You can read it here.

Fourth Estate argued that the language in the copyright law referring to “registration” was describing an applicant’s submission of the application, while Wallstreet.com contended that it meant what it said – actual registration.

The Court came down on Wallstreet.com’s side, holding that the “registration approach” was the proper one under the law.

So now, before you can file a lawsuit for copyright infringement, you need to have been granted a copyright registration (not just applied for it).

Game development copyright registration

What the decision means for game developers

What does this mean for game devs (and indie devs in particular)?

Since the decision, I have heard a lot of panic from game developers who feel that they now have limited means with which to go after those who steal their games.

Not really true.

While this Supreme Court decision definitely adds another potential hurdle, it doesn’t take away all of your power to stop infringement.

First of all, most of you were probably not filing a timely copyright registration anyway, so you were missing out on the all-important Statutory Damages and Attorneys’ Fees.

Second, there are still a few ways to stop infringement without actually going to court. While registration is very important, it’s not the end of your enforcement mechanisms.

Third, while you do need to wait out the registration period until it’s granted, the Court specifically points out that “Upon registration of the copyright, however, a copyright owner can recover for infringement that occurred both before and after registration.” (emphasis added by me)

This means that waiting doesn’t necessarily limit your ability to recover.

Temporary Restraining Orders

That being said, waiting can be a huge detriment to your game sales.

If you release your game and it is immediately cloned, but your registration hasn’t been granted yet, you’re not going to be able to go to a court and get a Temporary Restraining Order (TRO).

A TRO is an order from the court telling one of the parties to immediately and temporarily stop doing something (making an infringing game available, in this case). It’s a temporary, emergency measure that is put in place when you’re going to be harmed by that infringing game being out there on the market.

The Supreme Court states in their opinion that one of the options available to copyright owners is something called “preregistration,” which allows you to “pre-register” your copyright and file a lawsuit before your actual registration is granted.

Of course, it costs more ($140 fee versus $55 fee for the regular registration), and you need to be thinking ahead in order to get it done.

But if your game is cloned or otherwise infringed upon, you’re going to wish you did it.

Using the DMCA to protect your copyright registration

The DMCA Problem

Another reason to file the preregistration? DMCA takedowns.

If you use the takedown procedure outlined in the Digital Millennium Copyright Act (DMCA) to get infringing content taken off of websites, not having a registration granted can really hurt you.

The DMCA process goes like this:

  1. You find infringing content on a website and send a DMCA takedown notice to the site owner (including the specific information required by the DMCA, of course)
  2. The infringer has an option to file a counter notice, stating that they have a good faith belief that they are able to have used that content
  3. If the counter notice is filed, you must file a copyright infringement lawsuit in order to keep the content off that site

See the problem?

You can’t file that lawsuit unless you have a copyright registration granted. So if the infringer is savvy enough to file a counter notice, you may be screwed.

Another reason to get that preregistration in place and to file your copyright registration ASAP.

What else can you do to protect yourself, despite this new decision by the court?

Next, we’ll go through your options.

How can you protect your game copyright?

Practical tips – what to do if someone steals your work

There are several ways you can protect your game, many without an actual copyright registration being granted:

  • First, make sure that you are the owner of all the materials in your game – use “work for hire” agreements and intellectual property assignment agreements to transfer ownership to you before filing.
  • File the preregistration I described above with the US Copyright Office, to set yourself up for going after any possible infringement.
  • Immediately file for a copyright registration on the date you publish your game – you can even file separate copyright applications for each public release (early access, demo, final version, etc.) if you want to get the process started sooner.
  • If you need to get a lawsuit filed ASAP, you can pay an $800 fee for “special handling” of your copyright application, which shortens the registration process to just a couple weeks.
  • Do regular searches for infringement, and utilize the DMCA takedown procedures to take down any infringement you find. Most of the platforms have an automated process to get things taken down for copyright violations, or you can send a compliant DMCA takedown notice if needed.
  • Send Cease & Desist letters to infringers, threatening to file a lawsuit if they don’t comply. Most of the time, we throw a demand for damages in there, as well.

If you’re literally years of your time to develop, advertise, and sell your game, isn’t it worth the small amount of time and money it takes to file a copyright preregistration and registration to protect it from being stolen?

Luckily, you know a video game lawyer (me) who can help you get it done.

Reader Discount! Get your copyright registered by a video game lawyer

As a reader of this post, I’m offering a huge discount on copyright registration filings for game developers.

My normal flat fee rate for filing a preregistration or a registration is $200 plus filing fees, but if you mention this article, I’ll give you 30% off of the legal fees (you still need to pay the filing fee).

I also assist with filing DMCA takedowns and other copyright-related legal issues, so feel free to reach out if you want some help with your game copyright!

Additionally, my Indie Game Jumpstart Package includes the Work for Hire agreements I discussed above, along with a copyright registration, so that you can protect yourself from infringement.

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Zachary Strebeck

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