Games and the law – getting your contracts in order

Like any piece of software, an app or a game is going to attract some form of Intellectual Property.  In the case of games, where art and design, meets programming, music and audio, there is a lot of Intellectual Property to think about, but it’s ownership of the Intellectual Property that you’ll need to pay particular attention to.

The general rule under English law is that the author of copyright is the first owner.  From a coding perspective, the lone bedroom coder shouldn’t have any particular problems here.  However, the bigger the game, the more people are likely to be needed to work on it and care will need to be exercised in the event additional personnel are taken on.  Work created by employees “in the course of their employment” is generally owned by the employer, although it’s always a good idea to re-state this in any employment contract.  In many cases though, contributions to games (or your budget) may not warrant taking on a full time employee, and you may prefer to take on contractors.

When dealing with contractors, it’s important to remember that the author is the first copyright owner.  So you may have asked a contractor to come up with some designs or to do a specific piece of coding.  Perhaps you’ve got a plot for your game but you need a script.  You may need to look to a composer to assist with the music.  However, unless you have a written contract in place to the contrary, all these copyrightable elements will be owned by the creator of the works.

A contract with a contractor will also look to cover other elements of the relationship over and above the intellectual property.  For the reasons explained below, you’ll want assurances that the contractor has not simply copied the work from someone else, that it is in fact his/her own original creation.  You’ll also want any aspects of your game to be kept confidential, so there will be a need for strict confidentiality provisions to be included too.

Ownership of intellectual property is important for all Intellectual Property reliant businesses.  It gives them the freedom to exploit and distribute their Intellectual Property without restriction or limitation.  The situation is no less important for game and app developers.

To exploit your game, you’ll need a distributor.  Whether this is through a big name publisher like EA or Activision that will publish the game for you, or through a digital distributor like the Steam platform, you’ll need to sign agreements with them.  These agreements will invariably ask you to give certain assurances/promises (known as “warranties”) that you own or have a right to all elements of your game.  This is because, in the event you’ve (either mistakenly or knowingly) copied someone’s work without the rights owner’s permission, the publisher/distributor will want to ensure that they are protected from any claims that may be made against them by that third party rights owner.

If your budget doesn’t allow for commissioning of specific works, you may just want to licence certain aspects of your game.  These licences will need to be carefully reviewed to ensure they grant you the rights you require.  Can they be integrated into other works?  Do you pay a one off fee?