When you hear discussions of new IPs in gaming, it isn’t just a buzzword associated with new franchises. An IP stands for ‘Intellectual Property,’ and according to the World Intellectual Property Organization (WIPO), IPs are ‘creations of the mind,’ which include, “inventions, artistic and literary works, symbols, names, images, and designs used in commerce.” Moreover, there are different types of Intellectual Properties as well – in fact, there are four of them.
Now I get what you’re thinking: “if I wanted to learn about something so boring, I would have went back to school.” Agreed. Learning about the law is about as exciting as Statistics class, yet as an indie developer, you need to know how the law that allows you to protect your creations. Thus, here is a pocket guide to the four different types of IP protection. Take it to heart, and speak to a lawyer to discuss the best way to protect your creations.
The patent law of the United States can actually be found in the Constitution. It gives Congress the power to, “promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discovering.” Patent holders have the exclusive rights to use, make, and sell their invention for 20 years, with the entire point of a patent being to stop others from making a profit on a patented invention. Thus, the entire reasoning behind the law of patents it to ensure that competition and innovation result from the patented invention.
Usually, patents are reserved for inventions that have a function. In terms of indie game development, patents are more appropriate for a developer that develops a new set of tools for developing games instead of actual games. Let’s look at an example.
Let’s assume you develop a tool that allows you to draw 2D sprites via thought-control. Impossible, but stick with me. In this scenario, you would want to patent the process you used to allow your thoughts to draw 2D sprites.
Let’s also assume that a few years later, another studio develops a tool that achieves the same result, but also allows developers to create their own music and maps via thought-control. To achieve this, they used a completely different process, but was inspired by the invention of your tool. Is this patent infringement? If they used an original process for achieving their results, absolutely not.
Do you see what happened? A developer was unable to copy the process you patented, and as a result, innovation occurred. Thus, patents secure your own personal processes used while forcing others to innovate if they want to succeed in a marketplace.
Copyright law has the same basic function as patent laws, in that they grant protection for the copyright holder in order to proper innovation. A copyright gives an owner a handful of rights, such as exclusivity to the product copyrighted, the power to distribute the product as the individual sees fit, and to perform, display, and create new works based on the original work. It’s the reason why there are so many entries in the Call of Duty franchise.
A copyright protection exists as soon as you have created the work, yet to bring about a lawsuit of copyright infringement, you must register your product to be copyrighted. For example, if you created a kart racing game starring farm animals, I saw your idea, and created the exact same game but with action figures, you could sue me only if you registered the copyright. If you didn’t? I would be a jerk for copying your idea, but you couldn’t do anything about it (not that I would copy your idea anyway).
Keep in mind that ideas alone cannot be copyrighted. Going back to the farm animal kart racing idea again, if you told me the idea for the game and I created the game and published it, I would also have the copyright to the game even though I stole the idea from you. For an idea to have copyright protection, it must be “fixed in a tangible medium of expression.” This means you need to have some sort of physical representation of your game, and it can be as simple as writing the idea for the game down on a piece of paper and filing a copyright for the idea.
Copyright protect lasts roughly 70 years after the death of the author, and if the work is anonymous? 95 years after the date of first publication. You can thank Walt Disney for that.
Trademark laws govern completely different territory. It has two purposes: to protect consumers by preventing confusion regarding the source of a product while granting exclusivity to protected trademarks to holders of said trademark in their particular market.
Often, products and brand names are the subject to trademarks. This protects consumers by keeping certain brand names exclusive to their owners so consumers can know what product to buy if they want a particular experience. For example, if you purchase Tide laundry detergent because you like how it smells and how it cleans your clothes, you can thank trademarks for this. If the Tide brand wasn’t trademarked, you would have a ton of other competing laundry detergent brands placing their own laundry detergent into a box that looks identical to Tide’s and actually calling their detergent ‘Tide.’ This also keeps knock-off products from entering the marketplace, which benefits the economy overall.
Concerning your indie game, if you want your game to be a franchise and want to use the same logo (or a variant of each) for each subsequent game, you will want to trademark the logo. This means if your game is successful and someone tries to use a logo to ‘trick’ customers into buying their knock-off game, they will not be able to as they will risk being sued.
This variant of the IP law is very different from the others. Trade secrets exist to protect IPs’ secrets from being traded, and two things are required to ensure trade secrets are actually protected by IP law. For starters, the secret claimed to be a secret must be exactly that: a secret. For example, if you and I started a studio together and you told me a company secret but I blogged about it, and then we tried to file for a trade secret, we couldn’t do it because I blabbed my mouth.
Secondly, efforts must be taken to protect said secret. Policies and procedures must be in place to protect the secret, and the one(s) that know the secret must keep it a secret among those authorized to know – no exceptions whatsoever.
Trade secrets are protected by litigation in courts, and when someone steals a trade secret and uses it to their advantage? Damages can be awarded in court. This could be anything from breaking a non-disclosure agreement (NDA – which I will discuss very soon) to insider trading. Remember the big Martha Stewart debacle in which we obtained insider trading tips and made a huge profit? Someone had to give this tip to her – a trade secret, and they were probably canned as a result. And because Stewart used the tip? She broke the law and had to go to prison as a result.
A pocket guide to IPs to be sure, and there is a lot more to discuss. A boring topic to be sure, it is something you need to know about to protect your livelihood. And if you have further questions about IP protection? Please, speak to a lawyer.