Dealing With Legals Issues When Developing and Releasing Your Game

Eric asked a question about legal issues. This post is one of those ask game producer questions.

Question:

What legal issues are important to consider/or are typically involved with the indie developer releasing their first game? Are there steps that they must take to protect themselves? What must they do to sell their games legally?

Answer:
I’m not an attorney, but I believe there are some legal issues you need to consider.

Is your game too similar with another game on the market?
If you are creating a game that’s based on existing game on the market then you really need to consider legal aspects. There needs to be enough different elements in your game or you might get into trouble. Our secret game project is based on popular board game, but we’ve changed the core gameplay mechanics and the theme completely different to avoid legal issues.

Is the name of your game already in use?
This can happen to anyone. It just might be that there’s another game with same name than your game. Easiest way to deal with this is to pick a new name. Remember to check the google before deciding the name of your game.

Don’t use or ‘lend’ any copyrighted material
Never use anyone elses graphics or sounds in the game. Don’t use free material. If you do – make sure you understand the licence and write it down next to the game file. For example, if you have map.jpg file that is public domain or something, then make a map.licence file and write there the licence info. If you don’t do that you will forget what material was copyrighted and what wasn’t.

That’s why I repeat: never use anyone elses material. Get your own material. Or stick with placeholders if you need to.

Does your company own the copyrights for code?
When you produce your games, make sure all the developers involved understand that the material they put in game are owned by your company. If you are not doing this, and a team member leaves… you’ll have a big problem.

Is your company name registered?
I’ve registered my company name right away before the new game production even begun. I’d suggest you to do the same. That way nobody else can ‘steal’ your company’s name. Same can be done for the game as well.

Team member contracts
Team members need to have contract about what their are making and for what kind of payment. Usually this is bit easier with artist (because their tasks are easier to define – it’s quite impossible to define ‘bug fixing’ for programmers). Here’s something you might want to define:
- The exact tasks that needs to be done (or objectives for programmers)
- Will team members be expected to work after the game release?
- Payment (Deferred? Royalties? Hourly based? Task based?)
- What happens if the project is sold to another developer/publisher?
- What happens if the project is canceled?
- Who owns the assets contributed by the team member?
- Will the team member still be eglible for profit sharing even if he leaves?
- Order of paypack (in case of profit sharing or deferred payment)
- Tools (will contributors be expected to use their own tools or will your company purchase the needed tools)

I’ve managed with smaller list, but these items can be useful to consider.

NDA’s could be signed
If you want, you can use non-disclosure agreements. These contracts basically mean that the parties involved are not allowed to tell others about your game. You can get people to sign the papers which is more official, but I have always trusted people and made agreements on ‘virtual handshake’ – emailwise or someway told them. This has worked every time, and I haven’t had problems with this.

If you prefer papers – use them.

Do I have to get everything on paper?
Yes, if you want to be sure. As I’ve mentioned, I’ve used ‘virtual handshake’ and email agreements (which has worked fine) but because different countries have different legislations it’s best to get everything on paper if you want to make sure it’s legally binding.

Are there other legal issues to consider?
As said, I’m not an attorney – so if you need extra advice: please contact a lawyer.

There’s also a legal kit for starters. I don’t own one, so I cannot tell how useful it is. But, it’s sold here: gamedevkit.com

10 thoughts on “Dealing With Legals Issues When Developing and Releasing Your Game

  1. Well I am a lawyer and your points are all wel taken. I am afraid that there are a few too many specific questions in this string for me to answer all at once. But if anyone wants to get some responses to a specific issue, the IGDA Business and Legal forum http://www.igda.org/Forums/forumdisplay.php?forumid=64 is a good place to go…and since I am one of the moderators, I see all the posts there and respond when appropriate. You cal also check out my blog at http://gameattorney.com/blog/ But that tends to be as much rant as it is legal stuff!

    Finally, thanks for the plug for my GameDevKit!

  2. @Max: I’m not a lawyer, so you really should consider talking to an attorney. I don’t think you need to register your company in the US – I registered my company in Finnish trade office (not internationally). That’s my opinion – don’t count on it.

  3. Thank your for the valuable information.
    I’m currently in the process of founding a new company for my soon to be released game. Of course I want to register my company name, but I live in Germany. I already figured out how to register a company name here in Germany.
    Should I also register my company name in the US since it will be my main target market? If yes, can you give me some information on how I can do this online or where I have to look. In your post you write that you registered your company in a “trade office”. Could you explain the process in more detail. And how much does it cost? Thank you.

  4. @John & Tom: Thanks for your comments. Yes – it’s safest to get everything on paper. Different countries have different laws.

    And… is it really have to have a notary public? If so… then I presume not a single contract with major publishers is valid – as we have always scanned papers and sent them?

  5. I hhave to correect a misstatlment regarding Agreement with contributors, at least as far as US law goes. I is not safe to use an email agreement to establish copyright ownership. Although digitl signatures are recognised in most states, the conveyance of copyrights rerquires a signed agreement. And I would not like to be the test case for whether a digital signature meets this requirmene tor not.

    You can not own what you do not own. So, getting the ownership of the ip contributions of all assset contributors is the essential first step.

  6. FYI, email is not a legally binding contract, and will be thrown out of court. Been there, done that. You need to have signed copies, and they have to be notarized by a notary public if both parties were not present during the signing.

    DS

  7. Thanks Mark, great info. I would also like to repeat that different countries have different laws. And if you are getting a bigger budgets, considering getting an attorney.

  8. My wife is a few months away from graduating from law school (specializing in IP stuff – patents, trademarks, copyrights, and the like). So, before I say anything, I need to put in a disclaimer that this is not legal advice, and you should obviously contact a lawyer to get that. Also, the following only applies to United States law; other jurisdictions likely have something similar, but it may be significantly different.

    That said, in addition to googling for your company/game name, I’d highly recommend going to the USPTO website (http://www.uspto.gov), and clicking on the Search button under the Trademarks menu-item on the left-hand side of the page. You can then type in whatever name you had in mind, and see if someone’s already registered it. Also try alternate spellings for your name, as if there are any preexisting trademarks too similar to yours then your (future) trademark application will be denied. Similarity in this sense is primarily the pronunciation of your mark – for example, if there was a preexisting trademark registered in the Electronic Games space (or whatever they call it) called “CoolGame”, then you could NOT register “Kewl Game” because it would likely be pronounced similarly.

    My understanding, based on listening to my wife babble on about her studies, is that your trademark is not valid until it has been used in interstate commerce. I believe there is a small window for this (basically you need to use your mark commercially within a year or two of its issuance), so you should ideally register the mark shortly before you plan on going live and selling your game.

    On the topic of getting the rights to all work that’s going into your game, you should ideally pay the contributors something up-front for their work, even if it’s a pittance. And stipulate this in a (paper) contract, signed by both parties specifically identifying any work they provide as “work for hire”. This means that they are an employee of yourself, and that you own the copyright to anything they do. Of course you can follow some other convention if you’d like – giving the copyright to your Company, or relinquishing the right to all works in the event that the game isn’t published, or whatever else you want – but make sure you have it specifically worded in your contract. And keep in mind that if your payment for this work-for-hire is future royalties, you MUST pay them something in the future or else the contract becomes invalid. (And you cannot contractually give away something for nothing, so you MUST give them at least SOMETHING in exchange for their work, in order to receive the copyright to it.)

    Again, this is only myself speaking as a layperson, not a trained lawyer. If you have concerns about such things, and especially if you believe you have a chance to “make it big”, you asbolutely should have your own attorney.

  9. I’ve used both email and paper versions. Legally they both are good (in terms of attorney’s eyes – at least that’s what a Finnish attorney told me) but paper might be bit more ‘safer’.

    Fax or send scanned copy to sign up… or agree via email. Both are ok.

    EDIT: Different countries have different laws. I’m not a lawyer, so I cannot tell how it will work. It’s best to get everything written on paper to make it legally binding.

  10. The team member contracts, have you made them via email or something too, or gotten it all on paper?