In the latest Ask the Experts column on sister web site GameCareerGuide.com, Jill Duffy seeks legal advice on what indies can do to safeguard their game ideas
We're also running this breaking-in column on Gamasutra -- please consult GameCareerGuide.com's Getting Started page
for more advice on entering and progressing your career in the game industry.
"Indie game developers, creative minds trying to break into the industry, and students of game development often worry that as small and meek individuals with no major company's support, they could easily become victims of idea theft.
I have an idea for a video game. I know it's probably a good idea to make a web site about it so people can see it and maybe help me make the game, but it's such a good idea that I'm afraid someone is going to steal it if I put it out there. What should I do?
Under Lock and Key
Dear Lock and Key,
First off, you have a majorly flawed implication in your question: You have only one idea. In the game development industry, one idea doesn't get you very far. To make video games (and especially as a designer) you need to have a wealth of ideas -- and maybe you do! But my question to you is do you want to make a career in the video game sector, or do you want to just play around with your one good idea?
I'm going to answer this question in two ways: first by talking about the irrelevance of "one good idea" and second by having a lawyer explain how you actually can protect something like an idea (and as a future game developer, you'll be able to use his advice over and over because you'll have hundreds of good ideas, right?).
'I Want to Make Games'
All right, so you want to make games. I don't mean to bust your chops, Lock; we're good people at GameCareerGuide.com, and I for one don't want to let you go astray. It really is important to make sure all our readers know upfront that one idea isn't worth diddley-doddley, as Ned Flanders would say. One idea is nothing. Even killer ideas are a dime a dozen.
The other day, I was posting some transcripts from the Game Career Seminar that took place at Austin GDC last month (they're available for free here
). I was listening to the audio files of the sessions while I posted them -- they're wonderful to listen to, incidentally -- and a few of the speakers commented on this very issue.
If you have a chance, listen to Dave Perry's interview, "When Did You Last Level Up? Career Advice from an Industry Veteran."
He talks at one point about trying to sell a game to a publisher by explaining the idea to the executives verbally and on paper, which failed. He went back to his team and told them they would have to try again, but instead of showing documents, they would show a trailer, a visual representation of the game they wanted to make. And that's how they sold the idea.
The lesson here is game industry people like to see an idea, not hear about it or read about it. It's extremely difficult to sell someone a game when you don't have a game ... or a level, or a demo, or a trailer. You need to do something with your idea before anyone in the game industry will be interested enough in it to steal it.
'I Need to Protect My Ideas (Plural), and the Expressions Thereof'
Once you have a lot of ideas and are putting them down on paper, and on your computer, and on other people's screens, you need to know how to protect them.
Have you heard the advice about putting a document in the mail and sending it yourself? The idea (gloriously used in the 1994 film Quiz Show
, in which Herbert Stemple, played by John Turturro, mails himself the answers to Twenty-One
) is that you: first write down your ideas or information; second, stuff them in an envelope addressed to yourself; third, mail that envelope so that the post office postmarks it; and finally, when you receive it, stash it away somewhere safe and keep it sealed. That postmarked envelope thereby proves the latest possible date you could have conceived the idea. If anyone steals the idea later and tries to pass it off as his or her own, you have dated evidence of having come up with it previously. Hooray!
The problem, of course, is whether this advice is true. And if it is true, is it a good idea? It's certainly quick and inexpensive, which most budding game developers and indies need to take into consideration, but will it stand up in court?
I asked Alex Chapman, a partner with the law firm Campbell Hooper in London, and a leading game industry lawyer and intellectual property expert.
"This can help, but it is not that that gives you the rights," he says. "Essentially, there is no intellectual property or rights in an idea -- it can't be protected in itself. However, the physical expression of the idea, such as in a drawing, written description, or piece of software, would be protected by copyright if it is original."
Chapman definitely knows a thing or two about copyright, which he explains in more detail in a moment. And luckily, he also knows a lot about the game development industry. He was part of a few development teams on a number of game products before taking up the law, and he now acts for a wide variety of clients including game developers, publishers, and brand and character licensors and licensees.
According to Chapman, "Copyright belongs to the person who created the work expressing the idea (unless that person is an employee and produces the work in the course of that employment) and generally lasts for the life of the author plus 70 years. (There are exceptions such as it being 50 years in the case of a sound recording.) It arises automatically on creation of the original work so there is actually no need to do the things you have described, in order to get copyright."
In other words, as long as you have expressed the idea, you automatically hold the copyright. But as Chapman explains, "One of the big issues if you need to rely on your copyright is that you may have to prove creation. There are various ways this can be achieved. The best way is not to put everything in an envelope and send it to yourself -- but this can be helpful. Similarly zipping it all up and emailing it to yourself can work. But these things can be 'faked.' Depositing it with a trusted third-party, such as a lawyer, is very good option," says Chapman.
He adds, "However, the best thing to do is to keep all working drawings (in the case of art), all drafts (in the case of text) and all builds (in the case of software) and any other papers, such as working drawings, designs, and keep them safe. Date them and sign them and perhaps even use the c-in-circle symbol. This is because if you have these things, then you are the only person that can have them. An infringer will not have your working drawings or builds and will not therefore be able to prove independent creation. In the U.S., you may also register copyright. In the U.K., this is not possible."
So you don't need to mail anything anywhere. Just sign and date your stuff, save it all, and keep it somewhere safe.
However, what if you tell someone, like a potential publisher or interviewing candidate, your game idea and they steal it? There is no "expression of idea," as Chapman puts it, to steal. It's just an idea.
Again, there is a way to protect yourself, says Chapman. "In addition to copyright, there is 'confidential information.' Copyright protects the expression of an idea. Confidential information will protect the idea itself but only by creating circumstances that [dictate] that the person to whom it is disclosed may not use it or further disclose it. Generally," he says, "if you disclose information that is of a confidential nature in circumstances implying confidentiality, then the person receiving the information should keep it confidential. If they do not do so, you may have a claim for breach of confidence."
Of course, there's another hole in all this: How do you prove that the circumstances imported confidentiality or that you disclosed the information and it wasn't independently created?
"Again," Chapman explains, "keeping good records is vital. Notes of meetings and details of what was discussed. Also, a confidentiality agreement or non disclosure agreement (NDA) will help. This shows that not only do the circumstance import confidentiality but also that they would give a claim for breach of contract if the confidential information is used. NDAs are very standard documents, and good lawyers in this field should make them available relatively cheaply. If you can't afford a lawyer, then the most important thing to do is make sure that there is some for of acknowledgment (preferably written, such as in an exchange of emails) that the information is to be kept confidential."
May you have many many fruitful ideas, Lock, and may you keep them all safely guarded!
[Jill Duffy is editor of GameCareerGuide.com, where she writes this bi-weekly column, "Ask the Experts."
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