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Creating computer games: Be clear to ensure you’re not left with a legal puzzle

Lawyer Alastair Smith is a Senior Associate in the Corporate and Commercial team at Lindsays, who works extensively with computer game creators, and has written an article highlighting some of the issues that game creators need to be aware of from a legal point of view.

Completing the legalities needed for a computer game is best compared with trying to do a jigsaw: It’s impossible without all the pieces.

In the eyes of the law, a jigsaw is exactly what the creation of a video game is. It’s a collection of different pieces of intellectual property (IP), from first drawings to characters, sounds (music etc) and scripts. It is not unlike a movie, in fact only with the added elements of computer coding and player engagement.

And, like on the silver screen, those producing a hit for gaming screens (mobile, PC or console) must not lose sight of the fact that different parts of the jigsaw often have different owners – each of whom could be entitled to a stake in a game creator’s success depending on legal relations. This is why it is vital to understand these aspects.

When advising gaming start-ups and creators, I always urge them to lay out all of their jigsaw pieces to check what they have and go through the details of each of them. At the start you are unlikely to have all the pieces or know what the jigsaw looks like at the end but even if you just have a few pieces it is vital to secure them (creatively and legally) at the earliest opportunity.

It’s hard when you’re a creative person excited by what you’re developing – especially if that’s initially in your spare time as is sometimes the case – it can be easy to overlook some of the jigsaw pieces which runs the risk of holding you back, should you find yourself with a success on your hands.

Identifying who owns any IP – and how that is rewarded – is all about avoiding dispute and ensuring all your pieces are legally secured.That means getting legal contracts in place as soon at the earliest opportunity for each piece and when working with anyone who you do not employ, whether your collaborators be consultants, friends or someone who you developed a concept with over a chat in a pub.

But, before we get too far down the line, it’s important to understand this: IP is something unique that you physically create. An idea alone is not IP.

You have the right to use IP in your jigsaw if:

  • You created it or employed someone who created it (and if the creation meets requirements for copyright, trademark, patent or design)
  • Bought or licenced IP rights from the creator or a previous owner

In computer games IP protections can help stop the theft or copying of:

  • Names of a product, character or brand. When it comes to copyright, that grants the creator of original creative work the exclusive legal right to determine the conditions by which the work may be copied by others. Copyright generally lasts for the lifetime of the creator, plus 70 years. This is usually an essential element of IP protection for video games
  • Inventions
  • Things that it writes, makes or produces (along with any related works)

All of that highlights where the importance lies for video game creators, whether that be a soundtrack, voiceover, sound effects, photographs, maps, choreography, animation, the game’s engine and coding.

Without each piece of the jigsaw, a game may not work – and where the owner of that IP may make a claim in the event that you create the next Fortnite or Fifa-style blockbuster, for example. You do not want your success overshadowed by a costly and complicated legal battle if you have not legally secured all parts of the jigsaw.

My top tips for game creators are:

  • Keep ideas confidential:- Non-disclosure agreements and confidentiality clauses in contracts are essential in any discussions
  • Keep products protected and have full contracts in place for all pieces of the jigsaw you or the team create
  • Remember 3rd party IP holders usually receive some form of financial benefit for use of their IP. It is essential to document as soon as possible and not benefit from 3rd party IP without a contract in place
  • If in doubt about your jigsaw pieces seek professional advice on IP

The gaming sector is an exciting part of the Scottish economy, one which holds so much talent and potential. We at Lindsays are proud to be supporting Abertay University‘s Dare Academy and playing our part in providing a springboard to start-ups.

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