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Copyright Law and Game Developers: What You Need to Know

Video game copyright can be a confusing matter for developers. It has a tendency to stir up questions you might not otherwise consider until something happens that forces you to think about them. For instance:

Do you need to copyright your game? If so, how do you do it?
What’s the difference between a copyright license and registration? Do you need both?
What do you do if someone steals your idea?
Why did you receive a DMCA takedown notice for a mod you created?
If you use similar game mechanics to someone else’s game but change everything else, is that copyright infringement?
Why are some fan creations acceptable while others aren’t?

You put a lot of time, money, and resources into building your video game. Why let all that hard work go to waste only to leave your game unprotected? Or, worse, invest all that work into something, only to have it taken down because someone else believes you violated their copyright?

The following guide will provide you with some basic history of copyright law, information on how it pertains to the video game industry, as well as some useful guides and tips you can reference as you work on future developments. It is not a substitute for a lawyer, however. Because video game copyright is so complex, you should consult with a lawyer if you are dealing with a specific issue.

Copyright Law: The Basics

Contrary to popular belief, securing the copyright to your video game (or any other piece of intellectual property) is a simple matter. In fact, it’s automatic. The moment you create your video game — whether published or not — it is copyright protected.

For developers in search of legal protection over all aspects of the game, there are a number of laws in place to provide you with (nearly) full coverage:

Copyright: this will protect the creative components, which includes things like the story, characters, design, music, etc.
Trademark: this will protect your company’s name, the game’s name, logo, and any other brand-associated imagery or messaging.
Patent: this will protect inventions. This probably won’t apply to most game and mod developers, but if you should happen to develop a new game mechanic, you can have it protected by a patent.

Now, it’s important to note that while copyright protection is automatic, it’s sometimes not enough to stop others from stealing (or borrowing) your original, creative content. That’s why you’ll see that most games on the market include a copyright notice and have their copyright registered with the United States Copyright Office. While those aren’t enough to prevent infringement, they will help in the fight against it down the road (if it comes to that).

What is a Copyright Notice?

A copyright notice is a simple string of text placed within your video game that serves as a “notice” of your copyright. It consists of three pieces:

The © copyright symbol.
The year of the copyright.
The name of the copyright holder.

If you decide to include a copyright license on your work, you need to make sure that it is properly formatted, that all information is correct, and that it can be easily located. If you go to the trouble of placing this on your content and someone feels as if it were intentionally hidden or the information was misleading, they can use this as an excuse for accidental or innocent infringement of your game.

Even though a copyright notice is not a necessity, it’s still important for developers to consider including it. It’s very easy to add to your gaming product and can come in handy down the line if you run into issues.

What is a Copyright Registration?

Even though a registered copyright is not necessary in preserving your product’s legal protection, it will become necessary if you decide to pursue legal recourse against someone who has infringed upon your rights.

The registering of your game’s copyright is a little more complicated than the notice and can take some time (anywhere from 8 to 14 months) to process. While registration officially goes into effect the day you file your completed application, the processing time can present some issues if you discover a case of infringement and have to wait to take action because the process isn’t complete. That being said, as a game or mod developer, registration is something you should probably consider doing before you release a game.

To get the process started, visit the US Copyright Office’s website and download the forms.

A Word of Caution

Copyright law and infringement happen to be a particularly sticky area when it comes to video games. Whereas with other types of creative works — like literature or music — it’s very clear when someone has infringed upon someone else’s copyright, that’s not always the case with video games. And, to complicate matters further, there are reasons why developers may choose not to take action against infringers. (We’ll talk more about this in a bit.)

As a game or mod developer, you don’t know what the future will hold. But to be on the safe side, it would be in your best interest to formally register and place a notice on any and all games you make.

The Complicated Matter of Video Game Infringement

Okay, so now that we’ve covered what video game copyright means, let’s talk about infringement.

Copyright infringement basically means that someone has copied your original content in some way, shape, or form. There are some exceptions to this, and they’re what is known as Fair Use.

The Grey Areas of Fair Use

Fair Use is, in essence, the exception to copyright law. It says that if someone has copied a work for the purposes of parody, criticism, or commentary, then it is acceptable. This is why copyright law can become especially tricky for video games.

Fan Creations

Technically, a fan creation is a derivative work of another video game, which means developers of fan creations need to be very careful. Game developers own the copyright to derivatives, sequels, and all creative content within their game (including characters, setting, and the storyline), which could potentially leave fan creations open to copyright infringement lawsuits if they too closely follow the original.

Game Mods and Add-Ons

Whereas fan creations are entire games built around a related story from another game, game modifications (also known as “mods” or “add-ons”) are not. For example, in an massively multiplayer online role-playing game (MMORPG) like World of Warcraft, a mod might add a special graphical display of healing. Because mod developers are usually making modifications to games they do not hold the copyright to, they can find themselves in those murky waters between copyright infringement and Fair Use.

There are four points that may be argued against infringement in the case of derivative works, so it’s very important — no matter which side of the fence you stand on — to understand Fair Use and how it may be used to protect your game.

The Digital Millennium Copyright Act

There is another important part of copyright law that all game and mod developers need to familiarize themselves with and that’s the Digital Millennium Copyright Act (DMCA).

Being a game developer, you’ll most likely deal with two very specific types of infringement. One is where another developer steals your creative content for their own video game. The other is when someone shares your video game online without permission to do so — and this is where DMCA comes into play. More on that below.

Taking Action Against Infringement

If you’re concerned that someone has infringed upon your copyright, there are certain measures you can take to confirm, confront, and ultimately take down the infringing work:

Step 1: Verify that you have registered your copyright with the US Copyright Office.
Step 2: Place a clear copyright notice on your website and on your game, if you don’t already have one.
Step 3: Place an End User License Agreement (EULA) on your website and on your game, if you don’t already have one.
Step 4: Make a copy of the infringing work for future reference (and legal documentation).
Step 5: Review the laws regarding video game copyright once more and determine whether or not the work officially constitutes infringement.
Step 6: If you have found a case for infringement, you’ll need to consider your options. You can:
- Reach out to the offender with a personal cease-and-desist letter.
- Reach out to the offender with a cease-and-desist letter from your lawyer.
- File a DMCA takedown notice to the website hosting your game content. If you’re unsure of who to contact, use our simple tool to find out.
- File a lawsuit against the infringing developer.
- Ignore it.

To Sue or Not to Sue — The Decision’s Up to You

You’re probably wondering why, after all that, you’d consider ignoring a copyright infringing work, right? Well, there are a number of reasons why developers have chosen not to pursue any legal recourse against offenders:

It costs money to engage with a lawyer.
It may bring unwanted negative attention to you.
It may anger fans if you cause their favorite game to get pulled down.
It may be beneficial for you to leave it up.

The argument as to whether fan creations, add-ons, and mods are copyright infringing works will be something you have to decide on your own since every case is unique. Game mods and fan creations are a fairly accepted part of the gaming industry these days, so it can be difficult to make that choice to take action against them — especially when you consider what they can do for your own game in terms of finance, reputation, and so on.

For the most part, game mods and add-ons serve to make improvements upon a game. Whether they be single-player, multiplayer, role-playing, online, mobile, or otherwise, game mods give consumers more variety and sometimes better game play through their modifications. And this is why some developers choose to ignore copyright infringement since these mods can often improve upon their intellectual property.

When it comes to fan creations, some developers choose to look the other way as well. If a game is popular enough where it has a large and dedicated fan base, developers may actually welcome fan creations, especially if they continue to make fans happy and increase their own game’s sales.

Of course, there is always going to be the case of the rogue developer who takes it too far and totally rips off a storyline from another game or creates a mod that helps players cheat. These are the sort of circumstances you’ll want to watch out for as a game developer. By understanding copyright law and how it can protect your game from these sort of infringements, you’ll be able to set yourself up properly from the get-go and take the appropriate actions when necessary.

Copyright Law Resources

If you’re interested in doing further research into copyright law or want to have some resources on hand, make sure to bookmark these websites for future reference:

DMCA Notice Generator: this is a simple tool for creating a DMCA take-down notice. The page also includes everything you need to know about the DMCA.
The Legal Status of Video Games (PDF): the World Intellectual Property Organization commissioned this report in 2013 to cover the specifics of video games as intellectual property and the specific laws pertaining to video game copyright in various countries around the globe.
Spare the Mod: In Support of Total-Conversion Modified Video Games (PDF): if you’re interested in total-conversion modified video games and the legal argument Harvard Law Review is making for them, check this out.
How to protect and defend a video game’s intellectual property: this article was written for Inside Counsel and covers everything you’ll need to do to keep your video game protected.
Gaming Mods and Copyright: whether you’re a mod developer or you’re worried that a mod is infringing upon your game’s rights, this quick article should clarify any remaining questions you may have.

The ultimate authority on all copyright-related issues is the court system itself. That’s why if you want to be completely safe, you will need to hire a lawyer. This subject is far to complex to be dealt with in any single article. So if you are unsure, talk to a lawyer!

Applying Copyright Law to Game Development

The subject of copyright infringement can be a difficult one to tackle as a game developer, especially if you’re feeling torn between preserving your intellectual property and making fans happy. Whether you’re an independent developer or you’re working with a large gaming company, having a solid understanding of video game copyright law will help you make those big decisions later down the road.