copyright

A legal guide to Let’s Play and gaming videos

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Let’s Play videos, and gaming videos more generally, are awesome. I started playing Minecraft thanks to Seananners’ very early videos about his love of what was then a quirky indie half-finished game just beginning to gather fans; I’ve played many games (and laughed a lot) thanks to the Let’s Play videos of my friends (and clients) at Yogscast; I enjoy video reviews of games from people like my friend Matt Lees at Videogamer.com; several clients of mine got their big break thanks to Let’s Play videos popularising their games.  But to many people the legal status of gaming videos is unclear and getting pretty controversial, too.

Some early gaming videos were taken down; Nintendo said they wouldn’t permit them at all (though they may have changed their mind later); and most recently and infamously, some licensing companies used the YouTube system to issue many IP infringement notices to gaming videos (more on that later).  To try to clarify what’s actually happening here, I thought I’d write this legal guide. (more…)

Spry Fox settles with 6Waves – does it matter?

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Spry Fox and 6Waves have settled their legal dispute over allegations that 6Waves had cloned Spry Fox’s game Triple Town.  News of the lawsuit received great attention and no small amount of oppobrium directed at 6Waves.  News of the settlement has received similar fanfare.  But does this really matter to the wider games or software industry?  I don’t think so – not from a purely legal perspective anyway. (more…)

Tetris wins the first legal victory against clones

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The Tetris Company has won a court case against the developer of an iOS Tetris clone  – this is a really significant legal development in fighting clones, so I’m quite excited about it.  The case is here and is reported on extensively by the 1709 copyright law blog (via Rosie Burbidge – thanks!), which I recommend you read, so I’ll just summarise the facts briefly here and add a few observations. (more…)

IP Round-up: Newzbin 2, Copyright Infringement and Stormtroopers

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This is a post from Jonny Mayner with additional input from Jas Purewal.  The Star Wars’ theme to the post is the fault/genius of Jonny (depending on how you feel about Star Wars, ofc).

This is a quick post looking back on some high profile IP cases in the UK on which we saw rulings in the first half of this year.  Read on for a brief round-up of what the cases were about and how they’re relevant to games and tech. (more…)

Demystifying copyright and games

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This post was originally published on GAMESbrief.

If you want to protect your games, you need to understand copyright law. It’s that simple. The problem is that many people get pretty hot under the collar about copyright law and think it does a lot more than it actually does. So, this post is about what copyright really is, what it does and what it doesn’t.

Before I get started though, it’s worth making a few initial points, since copyright in the games industry can be a pretty divisive subject:

  • This post is intended to summarise some key points about copyright law as it is, to help developers to understand where they stand legally. It isn’t about what the proper balance of copyright law should be between rewarding existing innovation and not discouraging new innovation.
  • This post isn’t about anti-piracy laws or UGC, though they do derive largely from copyright law. Those are posts for another day.
  • This post isn’t claiming that copyright infringement is any more or less of a risk for the games industry than it was back in the days of Pong. Personally, I think copyright infringement issues are on the rise, particularly in an era of mobile and casual games borrowing from established IP elsewhere in the industry (look at say Gameloft’s N.O.V.A. vs HALO or Desktop Dungeons vs League of Epic Heroes), but you can make your own mind up about that.

What is copyright?

Copyright law protects the rights of anyone who creates and/or owns a piece of work – such as a book, a film, a database or a computer program (I’ll call them “works”). To the right is an example of a random copyright work derived from one of my favourite games:

Copyright law is the main branch of IP law which protects creativity, as opposed to say trade mark law (more on that here), which is essentially about marketing your products, or patent law, which protects industrial innovation.

Five key points you need to know about copyright

(1) Copyright only gives you rights over the actual work you’ve created; it doesn’t give you a monopoly over the idea underlying the work.

This is critical: copyright law is meant to protect the fruit of your work, but it doesn’t stop people independently carrying out the same work and also enjoying legal protection of the fruit of that independent work. Legally, we say that copyright law protects the expression of an idea but not the idea itself.

Example: the fact that Nintendo owns copyright over the way that Mario looks and sounds does not give it a monopoly over all Italian plumber-themed games characters. If hypothetically Sega had entirely separately a similar Italian plumber for their own platformer back in the 80s, then Nintendo could not have objected to Sega using that work, or vice versa.

Therefore, it is entirely possible to have two very similar works both co-existing under copyright law, provided one has not substantially copied the other of course (more on that later).

(2) Copyright law gives you specific rights over your copyright work.

Essentially, you have the right to exploit the copyright work and stop others from exploiting/distributing it without your authorisation (the latter category starts straying into anti-piracy laws, which as I said is a post for another day).

These rights are valuable: you can buy/sell, leverage and license your or someone else’s copyrights. Licensing is key in the modern games industry: it is through licensing that a developer is able to make a game based on a copyright work owned by someone else (e.g. Bigpoint developed Battlestar Galactica Online or TT Games developed Lego Star Wars).

(3) A game will contain lots of different copyright elements at the same time.

For example, it could contain code, databases, pictures, films, sounds and written materials. Each of these elements is separately protectable by copyright law in different ways. This makes the copyright protection of games more difficult than, say, a book or a painting.

(4) Different countries have different copyright systems.

Example: in the UK copyright protection is automatic and there is no need to register the work. In the US, a work is not fully protected unless it is registered. (This might not sound that important, but in the recent past it’s caused real problems for Jagex, for example). Similarly, different countries have different defences to copyright infringement: the US has a wide ‘fair use’ defence, whereas the UK does not (not yet, anyway). Depending on the territories in which you operate, you may need to take specialist copyright advice (NB this post is based on UK law).

(5) Different copyright works last for different time periods.

When that time period expires, generally the work enters the public domain and becomes freely exploitable.

Example: copyright protection for a script lasts 70 years after the death of the author. However, for a film it is 70 years effectively after the death of the last of its creative team. Once that protection has expired, the work will in principle become freely exploitable in the public domain. (Here’s some food for thought: as a result, valuable IP will fall out of copyright protection in the first half of this century. For example, what happens when Mickey Mouse enters the public domain?)

Copyright infringement

As a broad summary:

  • If a developer takes an existing copyright work and copies “all or a substantial part” of it, and
  • That copying can be established factually,

Then that developer may in principle be liable for copyright infringement to the owner of the original copyright work.

So copyright infringement DOESN’T mean that if a developer bases a work on the same source or idea as your existing work, or even if his/her new work copies your existing work, that he/she is automatically infringing your copyright. There has to be copying of ‘all or a substantial part’ for there to be copyright infringement.

Copying of a ‘substantial part’ is a test of quality but also quantity: the developer could be liable for copyright infringement if he/she has copied very significant portions of your work or if he/she has copied one small but very significant part of that work.

BUT – there’s a catch. It has to be shown on the facts that the other guy has copied your work. This is done by a painstaking examination of the two copyright works next to each other in order to establish every similarity and dissimilarity between them. The judge will then take that analysis and decide whether he/she considers that there has been copying of “all or a substantial part” of the original work and therefore if there has been copyright infringement.

In practice, this can be a hard test to meet:

  • If the alleged infringer in fact did not even know about or see your work, then you’ll have no claim.
  • If the alleged infringer did know about your work, but you can’t prove that he/she had any access to it, then you’ll have difficult making a claim.
  • If the alleged infringer did know and have access to your work, then you may have a claim – but, as I said, you’ll need to show that there are sufficient similarities between the works for the judge to find copying of “all or a substantial part” of your work.

This is where it can get very murky indeed. I’m going to discuss the difficulties of establishing copyright infringement through two examples – one outside the games industry and one from within it.

Dan Brown, The Da Vinci Code and The Holy Blood and the Holy Grail

Back in 1982, three authors wrote a controversial book entitled The Holy Blood and the Holy Grail, the central theory of which was that Jesus married Mary Magdalene and that ‘the Holy Grail’ was both her womb and the resulting bloodline from that marriage. In 2003, Dan Brown’s best-selling The Da Vinci Code essentially turned the same theory into a novel.

Two of the authors of The Holy Blood and the Holy Grail then sued Brown and his publisher in 2006 for copyright infringement. The judge found that Brown had quite clearly recycled large parts of the “central theme” of their book when writing The Da Vinci Code. BUT the judge still ruled that there had been no copyright infringement, on the basis that there had not been copying of “all or a substantial part” of the actual contents of The Holy Blood and the Holy Grail. Any similarities, the judge found, were at so high a level that it could not be shown that sufficient copying of the actual text of The Holy Blood and the Holy Grail had occurred. Thus, Dan Brown, who quite clearly had taken his inspiration from someone else’s earlier work, was not liable for copyright infringement. (Incidentally, this case became infamous in legal circles because the judge incorporated his own code into his written judgment – seriously).

Let’s apply that in a games context. You create a game called Doom featuring innovative first person perspective action set on a future Mars against hordes of hostile aliens. A rival developer then creates a highly similar game called Gloom. Can you sue successfully for copyright infringement?

Answer: you will only succeed if you can show actual copying of the actual contents of your game – the artwork, sound, code etc. But it’s not enough for you to just argue that the other guy sat down in front of your game and thought “right, how can I make a game that looks and plays just like that?”

Let’s explore that further in the next example…

Nova Productions v Mazooma Games

Nova and Mazooma were both UK developers who created arcade machine games. Nova sued Mazooma and others, arguing that Mazooma’s games Jackpot Pool and Trick Shot infringed copyright in Nova’s game Pocket Money. All of them were pool-themed arcade machine games. BUT, Nova didn’t argue that Mazooma had actually copied Pocket Money’s underlying code. Instead, Nova argued that Mazooma had copied the user interface, or ‘look and feel’, of its game (you can see examples of the alleged similarities here). Nova also argued that Mazooma had copied key game mechanisms such as a cue aiming interface and power meter.

Nova lost the case, because it couldn’t show that there had been actual copying of its actual copyright works (e.g. the program code or its graphics) and it just wasn’t enough to show some similarities in the user interfaces of the games. (There’s more on the case here for those who are interested in the detail.)

This case shows us again that:

  • Copyright infringement depends on copying of ‘all or a substantial part’ of actual copyright works within a game – such as its code, graphics or sound;
  • You have to be able to show factual evidence of the copying; and
  • It’s not enough to point to superficial similarities or the ‘look and feel’ of the game – because that could just as easily have derived from the (unprotected) ideas which you yourself based your game on. Just because you develop a pool arcade game (or an FPS like Doom) first and then another guy makes a similar game, it doesn’t automatically entitle you to sue for copyright infringement.

It’s not all doom and gloom

A sceptic might be thinking at this point that there’s no point in having copyright protection. That’s not the case at all. Here’s some more positive points to think about:

  • Remember that copyright is a valuable asset in its own right, which can be bought/sold, licensed and leveraged. In fact, for games developers it is often their main asset.
  • Cpyright law goes hand in hand with trade mark law. You may not in some cases be able to stop a rival from poaching aspects of your game via copyright law, but you might be able to use trade mark law instead. You can read more about that here: Demystifying Trademarks and Games.
  • Dn’t take the above as the last word on copyright law and games. In fact, copyright law as it applies to games is not very well understood at the moment – would the same result in Nova v Mazooma happen if it was a popular narrative game rather than an essentially mechanical pool arcade game? There is I think scope for a more favourable interpretation of copyright law for the games industry in the future.

In the meantime, here’s some practical tips…

Top copyright tips for developers

  • Be realistic about how important copyright protection is to your business. What resources do you want to put towards it and in which territories? What can you do to read up on copyright law? (Tip: for the UK, have a look here for starters.)
  • Remember that copyright is a valuable asset in its own right, which can be bought/sold, licensed and leveraged.
  • If you have a dispute with another developer, think about what you want to achieve. Can you reach an amicable resolution with the other developer? Or are they actively trying to copy your product and take your customers such that a fight is inevitable? Can you use third parties, like Apple, to make your life easier via takedown requests? Can you enlist your player base or the games press to help? Have you had a word with a friendly games lawyer?
  • BUT, don’t just be guided by legal factors alone. Think about how much a legal fight would cost, how much time you have to devote to it, what your player base or partners would think of you. It may be that a negotiated settlement is better than an all out fight.
  • Don’t forget your safest bet is to make sure your games are better than your rivals’. Ultimately, only good products can grow your business and ensure your players stay with you rather than go to a rival.

Next month, to round off our IP fun over the last couple of months, I’ll be answering some frequently asked questions about IP law and games…

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Image credit: Valve Software

Judge dismisses God of War copyright lawsuit against Sony

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A US judge has rejected a lawsuit claiming that Sony’s God of War infringed copyright in a series of film scripts written by two Californian screenwriters.

The screenwriters, Jonathan Bissoon-Dath and Jennifer Dath, claimed they had written two treatments and two screenplays concerning a Spartan attack on Athens and other events in ancient Greece, which they claimed were copied by Sony in making the God of War game (source: THR).

God of War is of course an PS2 action game set in ancient Greece in which the hero Kratos, a Spartan, kicks various classical ass on the way to replacing Ares as the eponymous god of war.

The case

The writers commenced legal action against Sony and one of its developers, David Jaffe, in February 2008, but subsequent attempts to settle the lawsuit failed.  Sony clearly felt that they had a strong case, because they then applied for summary judgment.  In other words, they argued that the court should rule in their favour and dimiss the lawsuit because the writers had no legal case to stand on (in the words of the judge, there were “no genuine issues of material fact” and the applicant is “entitled to judgment as a matter of law“).

The trial before Judge Marilyn Hall Patel focused on the writers’ copyright infringement claim, for which the judge said that they had to show:

(1) that they had created and owned valid copyright works; and

(2) protected elements of those works had been copied by Sony.

The writers had to prove this by: (i) presenting direct evidence of copying by Sony, or (ii) by showing that Sony had access to their works and that there is a substantial similarity between the writers’ works and God of War.

In order to establish these arguments, both parties took Judge Patel through their respective works, meaning  presumably she had the opportunity to play God of War all the way if she so chose, though actually it seems that she just relied upon the lawyers’ legal submissions rather than cracking through the game herself.  Shame.  (Actually, it seemed reasonably clear that Judge Patel was not familiar with games when she initially described God of War as a “multi-hour video game“.  A what?)

Having gone through the evidence, the judge found in favour of Sony.  She said that:

An examination of articulable similarities between the plot, themes, dialogue, mood, settings,

pace, characters and sequence of events of God of War and plaintiffs’ works reveals far less
similarity than would be required to overcome summary judgment, even if plaintiffs had proven access [to the scripts]”.

She acknowledged that “there is some degree of similarity between the plots at an extremely generalized level” – the main similarity being that both were set in Ancient Greece and dealt with a battle between men and the Greek Gods.  However, citing previous caselaw she said “No one can own the basic idea for a story. General plot ideas are not protected by copyright law; they remain forever the common property of artistic mankind.”  (This is of course an appliation of the basic principle that copyright law protects the expression of ideas, not the ideas themselves.)

As a result, she held that “No reasonable trier of fact could conclude that God of War is substantially similar to any of plaintiffs’ works” and therefore dismissed the lawsuit against Sony.

No doubt this will come as a great relief to Sony, which of course is about to release God of War III.

Legal thoughts

Reading the judgment, it seems that this was an ambitious claim by the writers from the outset.  They had written film scripts about events taking place in Ancient Greece and sought to argue that Sony had copied those scripts when it developed God of War even though the judge went on to find that:

  • There was no evidence of direct copying by Sony
  • There was no evidence that Sony had even access to the scripts
  • The writers sought to bring the claim based on “general plot ideas” and “stock elements that have been used in literary and artistic works for years, if not millennia“, none of which are capable of being protected by copyright law
  • In fact, there was little similarity in the “plot, themes, dialogue, mood, settings, pace, characters and sequence of events” in the scripts and God of War.

Perhaps the writers thought the lawsuit would settle early on, but as it turned out it fought all the way to trial (which is admittedly fairly rare, certainly in the UK anyway).  The judgment does not disclose what the writers actually wanted from Sony, but I would imagine that it included substantial financial damages as well as (potentially) a temporary or permanent injunction against future sales of God of War. Well, no chance of that now (unless they appeal, of course). 

Lessons from the lawsuit

The lawsuit reinforces some important lessons about copyright law and how far it goes to protect any copryight work, including games:

  • Firstly, copyright law exists to protect the expression of an idea, which you have created through your own skill and labour.  It does not give you any ownership of the idea itself.  So, writing a script based on an ancient Greek story gives you copyright over that script but does not give you copyruight over the underlying ancient Greek story.
  • Secondly, even if you do have a copyright work and you think it has been copied, you have to prove to a judge that there has been “substantial copying” of your copyright work. 
  • Thirdly, copyright lawsuits are exercises in detail and precision.  The claim for copyright infringement needs to be established in very precise, concrete terms by reference to specific elements of your work.  Just generic references to similarities (in this case, to plot, themes, dialogue, mood, settings, pace, characters and sequence of events) generally won’t cut it.
  • Fourthly, copyright lawsuits can be much more complex even than this case.  For example, although this lawsuit didn’t get that far, there are entirely separate issues regarding defences to copyright infringement and how to assess loss.

And there’s also some lessons about lawsuits generally here:

  • If you think you have a lawsuit against someone, or might be defending one from someone else, then consider your options seriously and get legal advice early on.
  • Your lawyers will then be able to advise you on your legal prospects of success and what steps you can take to protect your position.  In this case, Sony’s lawyers advised them to apply for summary judgement to get the case disposed, and it seems that was the right route to take.

We’ve written more about games lawsuits and what you can do about them here.

The views expressed in this post are the author’s own personal views and not his employer’s!

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Games developer fails in court claim over copying himself

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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))

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