Copyright for Game Design

PLEASE NOTE THAT THIS IS AN ARTICLE I ORIGINALLY WROTE FOR A MAGAZINE; I DO OWN THE COPYRIGHT TO REPRODUCE IT HERE πŸ™‚

Copyright

One of the most misconceived discussions I read on the forum boards involve copyright.  While some people seem to have a vague idea there are others that have no idea and often lead others up the wrong path – and this wrong path could involve facing legal action if a major copyright infringement occurs.

I will attempt to put the facts before you but I know that the subject will still crop up on the forum boards – hopefully this article will explain what the answer should be.

What is it?

Copyright is the legal concept of allowing the original creator of a work to profit from it for an amount of time.  And while it may sound simple in that one line it can lead to massive headaches all around if not followed properly.

Why do I need it?

If you make a little game that you and your friends play then you may not worry about protecting your own copyright, but you still own the copyright to it.

It’s only when others start to play it, and charge others for it, that you may have to stand up for yourself – because you have the legal, ethical and morale right to do so.

Imagine making a game over 2 years that turned into the next ‘angry birds’ (in sales, not gameplay as that would be copyright infringement!), you then put this game on steam for $19.95 and watch the money steam in (pun intended).

Then imagine the money stopped overnight and after investigating you find that another company is selling your game on steam for $4.95.  And I’m not talking about a clone of your game either, I mean YOUR game.  If there was no copyright then they would be able to do this!  But with copyright on your side you can simply email steam and get them taken off (and take legal action if you wish to recuperate lost revenue).

Another side note is that your game copyrights more than just the game; if your game stars  the detective ‘Jolly Joker’ and his sidekick ‘Captain Koala’ (this is a comic book I wrote btw so those characters are in fact copyrighted) then another company cannot make a game starring either of those two without my written permission.

Is it legal to make games with other game characters?

If they are not copyrighted then yes, if they are then NO.

The most famous example is Mario brothers, the amount of people who wish to use them in a game amazes me, mainly because I am not a big fan of them (but each to their own).

The short answer is you CANNOT use Mario brothers in a game, you cannot use a character that even resembles him.  It’s a simple test really, if you showed your character to  a normal person, would they confuse it with Mario?  If they say β€œthat looks like that Italian plumber bloke from that game” then you have a problem.

So what characters are not copyrighted?  Those in the public domain (Robin Hood for example).

Marvel comics own all the copyrights to their characters and so do DC comics (so Batman and Superman are out), but there is one company that DOES NOT own copyright to a lot of their own characters – Disney (did your jaw just hit the ground?).

While the Disney company does own copyright to the characters of Mickey Mouse, Donald Duck e.t.c they DO NOT own the copyright of Snow White, Prince Charming, Sleeping Beauty (and others) – why? Because these characters were created by the German Grimm Brothers in 1812 (actually they added and subtracted stories over the years so the exact dates may be different for each character).

Now before you go making your own version of a Snow White game, now that you know you can’t be sued, you must know one more thing – Disney owns the IMAGE of Snow White that appears in all their books and movies (short black hair, yellow dress e.t.c).  That’s why movie studios use a completely different look for the character – the movie ‘Snow White and the Huntsman’  had Kristen Stewart as ‘Snow White’, this movie did not need to purchase any copyrights from Disney as Kirsten did not look like their version.

Alice in wonderland is by Lewis Carroll in 1865 so they don’t have that one either.  Alice in Wonderland with long golden hair, blue dress and white apron?  That image is Disney.

Why copyright must be enforced

Another contentious point I see on forum boards is when people receive copyright infringement notices for small games or fan games.  The reason for this is that if copyright is not enforced then it is null and void; which could devastate a company like Marvel entertainment.

Copyright can be enforced by a simple letter stating that you have infringed copyright and please take down the offending material.  You will not be taken to court on a minor infringement unless you are making a monetary gain, this is because court action is too expensive and would drive any company bankrupt within days; but a simple letter is enough for a court to believe that they have enforced their copyright.

How long do I have copyright

Currently copyright is active 70 years after the death of the copyright holder.

How does this affect my game?

In two ways.

Firstly what you can and can’t use.  You can’t use another persons intellectual property unless you gain permission (and you’ll most probably need to pay for it).  So don’t use a movie, a book e.t.c to base your game unless you have written permission to.

Once there was a forum member who wished to make a fighting game with all the characters from other games that were made in Game maker; the hardest part was not the game making but getting the copyright permissions in writing, some people believed that by saying ‘yes’ was enough to allow them to use their character, but it isn’t, you need to specifically state ‘I grant the usage of my character Jolly Joker to the game xyz fighting game‘, and that’s it.

Secondly what others can use in their game.  Everything you create in your game is now yours, this includes the characters, artwork, sprites – even the CODE you write.

While a game may be the same as yours in playability it is the actual programming code that is copyrighted – if they want a game that plays like yours then they must write their own code.

Who owns what in my game?

Simple if there is no money involved, tricky if there is.

Whoever created the asset (whether it be a sprite, background art, sound bite e.t.c) has copyright on it unless SPECIFICALLY noted; the publisher may state that all copyright is to go to them (don’t ever hand over your copyrights unless you are financially compensated).

Another example is code.  If a programmer writes an engine for your game then you CANNOT use the engine in another game unless you get permission again.

If payment is made there is usually some sort of contract to say what they can use it for.  An example of this is from my game ‘Dangerous Danika’ which has a music track done by a third person; they have given me permission to use their music in the game AND NOTHING ELSE.  I cannot put the music on iTunes and sell it for 99 cents; in fact I can’t even use the music in a sequel game.

If you are employed by a professional game company then everything you create is copyrighted by that company.

What do I do when someone infringes my copyright?

Send them a take down letter.

This could be as simple as ‘I have copyright on a Koala Detective called Captain Koala which can be viewed at www.koalacomics.com.au, please remove this character from your game’.

So why have copyright?

So a person can make a living out of their ideas – and this actually encourages more ideas.

I will use the example of Star Wars; if there was no copyright and George Lucas bought out his Space epic without making a profit then would there have been a sequel?  NO!!

The movie would never have been profitable because cinemas would never have had to pay in order to show the movie, they may have had to pay for the original movie reel but then they could have made their own copy.  All the toy manufacturers would have put out their own toys with no royalties to Lucas and so on.

This would mean that George would have only made a few dollars (selling the movie reel to the cinemas) unless he went around the country with his own projector and charged an entrance fee.

No profit means there would have been no sequels.  And poor George would have gone back to his day job to support his family!

I can’t contact the original copyright holder, now what?

So what?  They still have copyright to their works.

You either need to find them, or wait 70 years after they die and then go for it.

Copyright rorting

Have there been cases of massive copyright infringement – you betcha! And it still goes on in this day and age.

A fad two years ago was to get short stories from web sites, put them together as a book and then sell it on amazon.  For erotic stories this was amazingly profitable (it’s so profitable that it is the only area that it still occurs today, the profits are worth running the risk).

The problem was that the author of the book had not written a single story, or asked for permission, they simply ripped it all off and published it.  100% illegal and immoral.

JK Rowlings (Author of Harry Potter) was horrified when she found out an encyclopaedia of the Harry Potter world was to be published – without gaining her permission!

The offender believed that because the world of Harry Potter was all over the Internet then it was public property – it wasn’t (and still isn’t until 70 years after she dies).  This instance went to court and the Judge sided with JK Rowling.

This should never have got to court as it challenged the whole concept of copyright.  JK Rowling has copyright over the names and characters (including likeness) to all the main characters, the game of Quidditch, the names of spells … the list goes on and on – even the name Hogwarts is hers!

Copyright of this article

I, James Clifton, wrote this article so I have automatic copyright over it; I have given the magazine permission to use this article for their magazine and nothing else.  So if they wanted to bring out a book this article couldn’t be used unless I granted permission.

If someone wanted to publish this article on another website they would need to ask me for permission before they did it.

If I was paid to write this article then the magazine would own copyright.  Most of the time a magazine will pay for the RIGHT to publish an article, not for the copyright itself.

Byline

James Clifton is a games designer who uses game maker for all his games after dabbling in C++ and then PHP, he goes by the name cliftonbazaar on the gamemaker forums.

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