copying

Some thoughts on game trademarks, King and Candy Crush

25 Comments

This blog (and Gamer/Law generally) represents my personal views, not that of my employer.

The games press and sections of the games community has got hot under the collar (again) over trademark law.  This time around, it’s about news that King.com, maker of Candy Crush Saga and other games, is seeking to trademark ‘Candy’.  Cue lots of (to put it charitably) loose talk about ‘monopolies’ and even ‘patent trolling’.  I’m going to try and talk some sense about this topic. (more…)

Game cloning: recent legal developments

1 Comment

My employer, Osborne Clarke, held its biannual Interactive Entertainment Legal Forum (a networking event and training session for inhouse games lawyers from UK and Europe) last month.  I spoke about the difficult topic of game cloning, non-literal copying and recent legal developments regarding it.  What actually is the law about game cloning in the UK and EU?  Is it right that there’s no real legal recourse for cloning? (more…)

Games developer fails in court claim over copying himself

2 Comments

You’d think the last thing a games developer should be worried about is copying his own work, right?  Wrong.  Last week, the High Court published its judgment of a claim brought by a games developer against his employer over a games concept which the developer had created when he was freelance but which later he copied and effectively pitched to his employer as a new company project.  The developer later sued for breach of copyright and confidence, in which we now know he was unsuccessful.  Read on for more details…

The story in a nutshell
The case went like this: a freelance developer created a games concept, later joined a games development company and copied his earlier work in order to prepare a highly similar games concept for the company, without telling anyone about the copying (so everyone else thought this was a brand new idea).  The development company took on the ‘new’ concept but ultimately it went nowhere and another company took over.  Subsequently, the developer sued for copyright infringement for the copying of his original concept.  The court held: no copyright infringement because no one had known the developer had already come up with the games concept when he was freelance so they had not ‘copied’ anything. The court also rejected a breach of confidence claim.

The case is one of the few recent times that a UK developer has been involved in a court battle.  In fact, several of the UK games establishment were name-checked: the case involved evidence from Adrian Smith (former boss of Core Design, developer of Tomb Raider, and who was also a defendant in the case) and Sir Ian Livingstone OBE (founder of Eidos plc, which gave the development company some advice regading the development of the games concept) and also involved UK developers CiRCLE Studios and Crush Digital Media (both of which subsequently went into administration – see here and here).

Need to know points

You can read a summary of the case below, but here are some upfront thoughts on the need to know/best practice points for developers which came out of this case:

  • When a freelance games developer joins a new employer, discussing his/her existing games concepts at the outset and how they will be treated going forward should help to avoid any confusion as to who owns the IP later on.
  • If a freelance developer creates a game concept before he joins a development company, DOESN’T tell the company about this and subsequently pitches the concept to them as a company idea then, if the game concept is taken forward, there is a risk that the developer may lose any IP rights he may have in the concept.
  • The judge said game concepts discussed by a game developer with his employer are unlikely to be confidential as between the two of them, so a developer could not generally prevent his employer from for example pitching the concept to publishers (unless there is some express agreement to the contrary).
  • Review carefully the provisions of your employment agreements which deal with ownership of IP rights, because they could be important if there is subsequently a dispute between the developer and the development company over who owns the IP rights in a game concept.
  • Pick your legal battles carefully.  Litigation is costly, lengthy and risky, as this case demonstrates.   A little advice early on from experienced litigation lawyers about your prospects of success and the legal cost/benefit analysis can save a lot of time, money and stress down the line.
So what happened?

In around 1998 a then-freelance developer, Stuart Burrows, developed the concept for a game which came to be known as “Tracktrix”, described in Court papers as follows: “Traktrix’s gameplay is very simple: get the ball from one side of an environment to another and enter the “Finish Area” within a time limit. The player achieves this by laying a track in front of the ball as it progresses“.  Burrows himself desribed it as “ ‘Marble Madness meets Tetris/Wetrix and a Scalectric track’ and ‘Super Monkey ball meets Tetris’ “.

Traktrix and Train Trax

Burrows later joined CiRCLE Studios as a senior games developer, but did not did not disclose to CiRCLE that he had already come up with the Tracktrix concept.  He copied parts of his original work on Tracktrix in order to pitch a CiRCLE projet which was similar to Tracktrix, again without explaining that he had come up with Tracktrix before joining CiRCLE.  CiRCLE then took the concept to publishers and, following the advice of Sir Ian Livingstone of Eidos, further developed it into a game concept known as “Train Trax”.

But ultimately no one was willing to pick up Train Trax.  CiRCLE later went into administration in 2007.  However, CiRCLE boss Adrian Smith and industry veteran Martin Carr formed another games development company, Crush Digital Media, which bought up some of the now-bust CiRCLE’s IP – including Train Trax.  Crush then hired Burrows to work on Train Trax further and tried again to get publishers interested in, again without success unfortunately.

It seems that Burrows later began to argue that CiRCLE and Crush had infringed his copyright in Traktrix, and had breached confidence, by seeking to develop and market Train Trax.   Lawyers were involved and the case went all the way to trial in 2009, despite Crush going the way of CiRCLE and entering administration in early 2009.

The High Court judgment

In a judgment published last week, Mr Justice Norris ruled that CiRCLE and its boss Adrian Smith had not copied Burrows’ copyright works in developing Train Trax because they had not known there was anything to copy.  As far as they knew, Burrows had invented the Traktrix concept (which became Train Trax) for the first time when he was a CiRCLE employee.  The judge found that Burrows had created Traktrix before he had joined CiRCLE, had then copied his own work to create a similar concept for the company and this then became Train Trax.  So it was Burrows himself, not anyone else, who had done the copying.  That was the end of the copyright claim.

As for the breach of confidence claim, the judge decided that a developer pitching a game idea to his employer ordinarily was not confidential as between the two of them.  He said: “Mr Burrows was employed as a senior games designer by Circle. It was his job to come up with ideas. If he came up with an idea and shared it with his employer he was doing what he was paid to do: the disclosure would not be in circumstances importing any duty of confidence owed by the employer to the employee.”

Thoughts

The judge was pretty clear the case should never have got to trial (he referred to “the regrettable fact that the action reached trial at all“).  That said, the legal issues in the case were fairly clear cut and he did not have difficulty in ruling in Smith and Crush’s favour.

Still, to my mind there were no real winners here.   Yes, the case established that effectively Crush still had the rights to Train Trax but no one wanted to buy it anyway, the game was never actually developed and Crush went into administration in early 2009 anyway.  As for Burrows, he was left emptyhanded and probably in fact received a substantial legal costs order against him (though it is always possible he may try to appeal).  Not a great result.

(Case name: Burrows v Smith & Another [2010] EWHC 22 (Ch))

Follow us at www.twitter.com/gamerlaw!

[Image credit: Mike Reeve http://en.wikipedia.org/wiki/File:Royal-courts-of-justice.jpg]