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18 Dec 2013

Responding to IP Theft Properly

While I assumed I was finished writing about legal issues for a while, a perfect example of intellectual property (IP) theft comes along. Most of you have probably heard about actor Shia LaBeouf’s short film HowardCantour.com being a literal ripoff of the indie comic Justin M. Damiano. I won’t go into the details here, I will state that entire scenes/lines of dialogue have been ripped from the pages of Dan Clowes’ 2007 comic. If you’re interested in learning more about the controversy, Wired has a well-written piece on the subject.

But let’s shift the focus to indie developers. What can you do whenever someone copies the central idea of your game and passes it along as an original IP? Let’s look at a few examples together.

 

Use the media to your benefit

If there is one thing the media loves, it’s a juicy story. It doesn’t matter how large your studio is, if you are starting out as an indie developer, or where you are from, if you can pitch your story to the media in a way that is certain to attract ‘clicks,’ the media wants you. Thus, if someone copies your IP, use the media to your benefit and make it known that your game was the victim of IP theft.

Of course, you want to make it known that your game was the victim of theft only if it actually was. If the public picks up on the fact that you are making stuff up, you’re going to see an online backlash like none other (and if there is one thing the Internet loves, it is finding a reason to hate something). Thus, make sure you actually have a case before alerting the media.

And when you alert the media? Do it tastefully. I understand. It is completely unfair whenever someone rips off your idea. I understand your wishes for them to be ‘burned at the stake’ so to speak, and I know that you want to unleash a ‘firestorm of words’ upon them, delivered courtesy by the media. Yet, your studio is in the public’s eye. Again, be tasteful, and your studio will benefit from it.

One of the best examples of a small studio dealing with this exact scenario is when NimbleBit responded to Zynga ripping off their game Tiny Tower. You see, Zynga released a game known as Dream Heights, and it was such a direct ripoff that it was almost comical (of course, it wasn’t to the NimbleBit folks). Zynga is much bigger than NimbleBit, and while they could have sent them a cease-and-desist letter, Zynga wouldn’t have stopped the sale of Dream Heights. NimbleBit was backed into a corner – that is, until they released a tongue-in-cheek letter to the media comparing both games side-by-side and actually ‘inviting’ Zynga to copy their future games.

The plan was a hit. Not only did it put the studio in the limelight among players in the press, but Tiny Towers also saw a spike in sales. The media also covered their future games as well, and while Dream Heights was not pulled from any app stores, in the end NimbleBit benefited from Zynga’s plagiarism. It’s one of the best cases of making lemonade out of the lemons the game industry throws your way in recent memory, and while I cannot guarantee that you will have the success that NimbleBit had, it’s a good strategy nonetheless.

 

The cease-and-desist letter

There are two types of cease-and-desist letters you could send out, and you probably know which two types there are:

  1. The polite C&D letters
  2. The nasty ones

While it seems more fun to send out a nasty cease-and-desist letter, as mentioned above your studio is in the public’s eye. Thus, if at all possible you need to politely send out a cease-and-desist letter to the party responsible for IP infringement. Believe it or not, the individual may not even know that they are guilty of IP infringement. Given the benefit of the doubt, and explain in your letter that while you are flattered that the party believes your idea(s) is good enough to use as their own, you have to protect your IP and all of the parts that encompass it. Include examples of the IP infringement within your letter as well. If you proclaim that your game was copied and you fail to include evidence that it was, this could anger the other party.

Once more: be polite in this letter. As they say in the South, ‘you don’t want to stir more feathers than needed.’ The less people you make angry with a cease-and-desist letter, the better (yes, I realize that rhymed, and yes, it was intentional).

 

But what about when you need to get nasty?

 

Playing good cop will not always work. For example, if you receive a response to your cease-and-desist letter that basically says, ‘I don’t care, sue me chump,’ it is time to get ugly. Yet first and foremost, do not write anything that makes you look like a bully. True, you need to word your cease-and-desist letter in a way that informs the other party that legal action will be taken if they fail to stop infringing on your IP, but do not do it in a way that makes it look like you are ready to sue the pants off of them. Cease-and-desist letters are leaked and posted online all the time, and a lot of times, it is to win the public’s favor such as the tactic mentioned at the beginning of the post.

In addition, make absolute certain that the other party is infringing on your IP. If you threaten legal action and you have no basis to do so, the other party may countersue you and seek a ‘declaratory judgment.’ You would then be sued in their jurisdiction, meaning that you would have to travel to their location only to get a ruling from the judge that the other party is not infringing. This is an expensive hassle to be sure, so again, be certain – and I mean absolute certain – that you have a case before sending a nasty cease-and-desist letter. This means contacting a lawyer and speaking with them to see if you actually have a case.

 

What’s the bottom line about cease-and-desist letters?

  1. Be polite – even if you are threatening legal action.
  2. Ensure you have a case when threatening legal action.

 

The DMCA takedown tactic

The Digital Millennium Copyright Act (DMCA) is convenient to take advantage of whenever a party infringes on your game. This is ideal for getting file sharing sites to remove your game after someone has uploaded it illegally for others to pirate and is also useful to send to companies like Apple or Google to ensure that they remove the infringing mobile game from their respective app stores. For example, if someone actually copies your game or your brand that is copyrighted, a DMCA notice can remove it completely from being downloaded digitally. This is a great tactic to use to avoid the cost of court fees and the time allotted to being in court as a whole.

However, whenever you file a DMCA notice, it must contain very specific details that without a shadow but down states that your game is being infringed upon. This is vital to using the DMCA to your benefit, as both Apple and Google received millions of DMCA takedown notices every month. To ensure that you have all the details in place before issuing a DMCA, again, speak to a lawyer to ensure you have all the details in place so the infringing game will indeed be taken down.

These are just a few tactic seeking use to respond to IP theft correctly. When responding to IP theft, always remember that you are in the public’s eye. If you respond to IP theft ungraciously, this could put a bad taste in the public’s mouth and could harm your brain as a whole (despite how wrong the IP theft was to begin with). ‘Play your cards right’ so to speak, be professional, and you will get through this type of situation unscathed.

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