If you have taken the journey to create the next Pokémon Go, Donkey Kong or Fifa, nothing could be worse than being liable for copyright infringement after months of hard work. Game developers need to consider a number of legal issues when creating video games and should understand how to best protect their intellectual property. Below, we outline four considerations that game developers should keep in mind.

1. Copyright

In Australia, copyright is an automatic protection provided to creators of original works, and subject matters other than works. The Copyright Act 1968 (Cth) (the Act) separately defines “works” and “subject matter other than works”. For example, “works” includes artistic, literary, dramatic or musical works, and “subject matter other than works” includes cinematographic films, sound recording, broadcasts and published editions.

It is important to note that video game copyright laws will not protect a computer or video game as a whole. Copyright protects the many components involved in creating a video game, including:

  1. Programming codes which might constitute “literary” works;
  2. Characters and other images which might constitute “artistic works”;  
  3. Background sounds which might constitute “musical works” or “sound recordings”;
  4. Completed visual streaming which might constitute “cinematographic film”.

2. Copyright Ownership

If you are creating all the above works yourself, then you will likely own the copyright. If, however, you have been commissioned to create the video game, you may need to transfer ownership through an assignment or licence agreement to your employer or otherwise.

If you are the game producer or commissioning others to create aspects of the video game, you will need to consider the types of employment contracts you will need and where you want to secure ownership or a licence to use the works.

You can negotiate with the creator how to move forward with licensing, assignment and employment arrangements. By way of summary, contractors or volunteers working for you will usually retain copyright in the works. Accordingly, you should explicitly state that you own licensing rights to their works. In a licensing agreement, the creator will still own the work. The creator may decide to assign the IP to you in exchange for a lump-sum payment so that you own the works. Importantly, any assignment or licence should be in writing.

You should also exercise caution when using someone else’s musical work as your background music. If copyright subsists in the work, you will need to seek clearances and the appropriate licences. The same applies if you plan on creating your video game using someone else’s software.

3. Technological Protection Measures

The Copyright Act 1968 (Cth) allows copyright owners (software owners) to protect their software through “access control technological protection measures” (TPM). TPM is a broad term capturing the methods which can prevent others from using your software (except when using correct access codes). For example, TPM can take the form of passwords, unique codes, and payment for use.

4. End User Licence Agreements

An “end user licence agreement” (EULA) is a binding contract between a software author (or video game creator) and the user of the software. You should have an EULA drafted to protect your software if you wish to sell or offer your software for download and use. An EULA should clearly set out the rights and limitations of your users as well as any instances where liability will be limited and when the user will need to indemnify you against any loss or liability.

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As a creator of a video game, you are performing a number of tasks which are likely to constitute “works” or “subject matter other than works”. To have full ownership of the video game, you will need to have all rights to the work assigned to you. If you have any questions about how to protect your intellectual property or drafting an agreement, get in touch with our IP team on 1300 544 755.

Esther Mistarz

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