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Legal Issues for Rookie Development Studios Part II

The games we make are ultimately reduced to code. 1s and 0s. But we know there is a lot more to what goes into a game than just code. Art, sounds, textures, models, animations and, of course, the engines that make them go. Legally, this stuff is all termed Intellectual Property or IP for short. IP is a form of "personal" property (as opposed to "real" property like real estate). Personal property is, basically, everything that is not real estate. But, this gives IP certain legal qualities due to its nature as "personalty" -- it is "owned" by someone. And it can be sold or licensed, governed by contracts, and even abandoned or given away. But because it is property it has to be treated in some very special ways to retain its value to the owner.

Keep in mind, there is no way to protect only an idea (except perhaps "trade secrets"...but, more on that later). So ideas are wrapped in IP to make them proprietary and subject to ownership. An idea for a painting, for example, cannot be protected. But once drawn, the artist owns the "work". Similarly, the idea for an invention is not protectable. But once designed or built, if it is unique and original, it can be patented and thereby protected. Confused yet? Like Yoda said, "You will be!" Well, let's try to work through this a little to make it clearer.


If you want to avoid a headache just read the copyright stuff and then go to the *** below.

There are several basic types of IP: copyrighted works, patented inventions, trade and service marks, and trade secrets. Let's take a closer look at the different types of IP to better understand their differences and similarities.


Copyrighted "works" can be anything created by an individual or group of individuals that originates the "work." Examples we are all familiar with are sound recordings, photographs, sculptures, books, articles (like this one), code, and several other types of works. The Copyright office puts it like this:

"Copyright protects "original works of authorship" that are fixed in a tangible form of expression. The fixation need not be directly perceptible so long as it may be communicated with the aid of a machine or device. Copyrightable works include the following categories:

    literary works
  • musical works, including any accompanying words
  • dramatic works, including any accompanying music
  • pantomimes and choreographic works
  • pictorial, graphic, and sculptural works
  • motion pictures and other audiovisual works
  • sound recordings
  • architectural works

"These categories should be viewed broadly. For example, computer programs and most "compilations" may be registered as "literary works"; maps and architectural plans may be registered as "pictorial, graphic, and sculptural works."

The really cool thing about copyrights is that pretty much anyone can figure out how to register a copyright by going to the Copyright Office web site and downloading the form, filling it out and sending it in. Of course, it is the creation of the "work" that instills ownership on the author. But the act of registering the copyright gives the owner access to all of the enforcement capabilities of the Federal Statutes and courts in enforcing those rights.


Patents apply to inventions. They are purely statutory rights created to provide the inventor with a legal "monopoly" in their invention for 20 years. But patents are much more difficult to obtain and after the 20 years are up the invention becomes public domain and anyone can make it. This from the U.S. Patent and Trademark Office (PTO) on patents:

"A patent for an invention is the grant of a property right to the inventor, issued by the Patent and Trademark Office. The term of a new patent is 20 years from the date on which the application for the patent was filed in the United States or, in special cases, from the date an earlier related application was filed, subject to the payment of maintenance fees. US patent grants are effective only within the US, US territories, and US possessions.

"The right conferred by the patent grant is, in the language of the statute and of the grant itself, "the right to exclude others from making, using, offering for sale, or selling" the invention in the United States or "importing" the invention into the United States. What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention."

Like I said, a government granted monopoly. The problem with patents is that they are expensive and getting one is a long difficult process. Lawyers have to have a special qualifications and approval from the PTO to register and seek patents. This means these lawyers are costly and, for the most part, outside the realm of affordability for all but the most successful among us.

Patents and Trade Secrets

  Copyrights and Trademarks
  Patents and Trade Secrets

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The Series
  Initial Legal Issues
  Just what are these games made of...legally speaking?
  Completing Your Contract Arsenal - NDAs, Employee and Consultant Agreements