Would this be... legal?

[ShiraiJunichi]

Ok. Now, out of curiosity, what if I wanted to sell my game?

[bookie]

Ok. Now, out of curiosity, what if I wanted to sell my game?

Then, if you're using copyrighted material, it's much more likely someone will object, sue, or both, and win. Those laws are in place to ensure that profit goes to the right person, so if you're profiting off someone else's work then that's a problem. If you're in America, a capitalist country like us takes that very seriously, as opposed to China which I don't think could care less. XD

[RedSlash]

Copyright/Trademark laws apply whether you sell your game or not. If you publish a game legally as freeware (that is, free of infringment), then you can sell it legally as well.

[mikey]

If you're in America, a capitalist country like us takes that very seriously, as opposed to China which I don't think could care less. XD

I sort of object. It was the same problem with former east-eu countries (or central eu), up to not very long ago, copyright/piracy was a great problem (it still is in the east IMO). The responsible people are concerned, but it has to take time. I remember programmes like "legalize your software" - you had your pirated windows and for a fee you could make it legal. It raised awareness and now things are very different to what they were just a few years ago when more or less everyone used illegal software. But that's a lengthy discussion, maybe it's better to just let it be.

[RedSlash]

It has also been argued that companies like Microsoft has also tolerated the piracy of Windows in China. Because if it weren't for that, they'd all be using Linux right now.

[darkknight]

Windows sucks Linus rules...oh sorry what was the point of this...oh yeah..with all of the rules and laws that we have it would most-likey be easier to
a) make up your own resturant name (Food-R-Us)
b) alter a well-know resturant (Mc.Diggles)
c) if you really want to e-mail or write to your Congress rep (they will almost always answer)

[PixelWrangler]

Ok. Now, out of curiosity, what if I wanted to sell my game?

Okay... at the risk of re-stating much of what has already been said, I am going to do my very best to address your concerns regarding copyright and trademark infringement, as they are two areas I have dealt with quite a bit. (Warning: this wil be a loooooong post!)

NOTE: I am not a lawyer, or a legal representative qualified and/or authorized under state or federal agency to dispense legally binding information, despite the verbosity (and potential pomposity) of the statements contained within this post.

Now, on to the issue at hand. I will address Copyrights generally, then elements of games specifically.

1. GENERAL

Intellectual property of any sort, be it words, music, programs, etc. is automatically copyrighted the moment it is fixed in tangible form. Additionally, if the work was created after 1989, the use of the copyright symbol © is not required to indicate copyright, as said copyright is implicit by the very existence of the work itself.

For example, I own the copyright to this post and all statements therein. And, since this post was made in 2005, I don't need to add "©2005 PixelWrangler. All rights reserved. Violators will be ripped to shreds by rabid hyenas with extremely bad breath... etc." It is implicit. (except for the hyenas, of course. There are presently no "rabid hyena" clauses in International Copyright Law - at least to the best of my knowledge.)

So is someone quoting this post a violation of my Copyright? Technically, yes! Since the original IP (Intellectual Property) is mine, and is being replicated verbatim, it is an infringement on my implicit copyright. This assumes, of course, that there is nothing in the forum documentation that reads "All posts in this forum are considered public domain, including, but not limited to, those regarding jelly doughnuts, the consumption of jelly doughnuts, etc...." (feel free to insert your favorite baked good at your whim).

Now, if this is the case, why aren't there millions of lawsuits each day over the quoting of internet posts? There are two components to this answer. First, it is incumbent upon the owner of the original copyright to pursue legal action against the infringing party. Short form: owner gotta sue ya. And, if said owner doesn't give two shakes of a wobbly possum's bottom, then nothing is going to happen. Secondly, use of a portion of a post to respond to said post could very well be qualified as "fair use". Now, if this post was to be reprinted in a national publication... wobbly possum bottoms would fly!

So why, you may ask, should you register intellectual property with the Library of Congress, if you're already technically protected the moment your work is created? Well, although you do technically own the copyright to any material you create, proving it in a court of law is difficult without some kind of official documentation.

Let's say Jack Johnson and John Jackson both submit the exact same script to a major motion picture studio. Who actually came up with it first? Well, John's script arrived first, so it must be him, right? Wrong! Jack may have just waited an extra day or two to send it, or his script may have gotten lost in the mail. Maybe Jack dated his script "5/5/2005" and John dated his "4/1/2005". John wins, right? Wrong. John could just as easily have written a false date on his script to scoop Jack.

But let's say that a search of the Library of Congress database yields the following: "A Script to Beat all Scripts; Johnson, Jack; 5/5/05" and "A Script to Beat all Scripts; Jackson, John; 5/15/05". According to official records, Jack Johnson is the official owner of the script's copyright, and John Jackson is (most likely) the owner of a large lawsuit against him. This isn't to say that John didn't write the script first, just to have Jack steal, copy and submit it to the LOC (Library of Congress) ahead of John, but this kind of allegation is very difficult to prove. (This, by the way, is the reason you should never submit material anywhere without registering it first).

Notice that, in the above example, the point of the officially-registered copyright is to indicate who completed the work first. Sound familiar? It's tangible proof of the implicit copyright obtained by creating a work. To summarize, registering a copyright with the LOC allows you to prove that you are the owner of the copyright for the work. It doesn't actually create the copyright, just documents it.

The same things (pretty much) go for Trademarks as well. In fact, there is such a thing as a "common law" (check terminology) Trademark. Meaning that, if a symbol is used to represent something, and it is considered intuitive public knowledge, then the owner of that symbol may pursue legal action against infringing parties, even if the trademark isn't registered. Of course, it makes things a lot easier if the trademark is registered, so it's always advisable to do so.

Now, a VERY IMPORTANT thing to note. Copyright and Trademarks have their limits. Most notably, ideas cannot be copyrighted. Let's restate that:

Ideas cannot be copyrighted

This is important to remember. If you're having lunch with the head of Warner Bros. Studios and say "Geez, Mr/Mrs Head of Warner Bros. Studio, I wish they'd make a full-length feature film about the invasion of Earth by flying, barfing, purple pigs from Pluto" and, a year later, "Bile Swine of the Cosmos" is released, you can't sue for copyright infringement.

If you're ultra-cautious and scrawl "a full-length feature film about the invasion of Earth by flying, barfing, purple pigs from Pluto" onto a napkin, then mail it (with registration fee, of course) to the LOC for registration, and they accept it, you still won't be able to sue, unless the lead character says "You know what would be great? A full-length feature film about the invasion of Earth by flying, barfing, purple pigs from Pluto." Even then, it's unlikely that you'd win any lawsuits, as the suit would be about the line itself, not the concept (and the line is, technically, different). The only way you would have any legal recourse is if you submitted the entire phrase as a trademark or slogan mark.

That brings us to the other thing you can't copyright/trademark: basic stuff. You can't copyright the word "the". You can't put a dot on a piece of paper and copyright the use of ink on paper. You can draw a very elaborate "the" on drafting paper and submit it, but you'd only be able to get a copyright on the artistic representation of "the", not the word itself. And you can copyright "Dot on Paper" as artwork, but it would be hard to prove infringement, and you wouldn't be able to collect on another artist's "Three Dots on Parchment".

As a final note, it is important to cover the terms "derivative work" and "public domain".

A derivative work is a work that differs slightly from, but relies extremely heavily on, an existing work. For example, taking an existing song and changing a phrase or two here and there would be a derivative work. For example, a plumbing service that records the song "U Can't Flush This" using the same background music would most likely get the glittery parachute pants sued off of them by M.C. Hammer.

"Public domain" refers to a work where the original owner has specifically abdicated (given up) all rights to his/her copyrights to the work and specifically declared it "public domain" and free to use by the public.

Now that we've covered the basics, let's apply them to various elements of a game.

2. GAME CONCEPT

What is a game concept? That's right... an idea. As such, it cannot be protected by copyright. Of course, the implementation of said idea can be protected, so if you release your game first, and the other person's game, released later, is substantially similar, you can sue for that. But if that person's game is substantially different, you have competition.

And yes, that means that, once your game is released, anyone can make a similar game, as long as it isn't a complete reproduction. Sound familiar? Doom, Quake, Unreal, Far Cry, Halo, etc... all the same type of game (first-person shooter), but all different games.

3. SCRIPT

This is the tangible representation of dialogue and action in the game, and can be protected as a written work (Form TX). This is as close as you can get to copyrighting an idea.

Once registered, if another game follows the exact same story line, or contains a substantial portion of dialog quoted directly from your game, you may be able to pursue legal action against your rival game maker.

Just don't try to sue over the use of the phrase "the neighbor's yard". It won't work.

4. ART

This is the tangible representation of Visual Art in your game (hence the form name: Form VA). Once protected, you can pursue legal action against anyone who duplicates your visual work.

Of course, enforcing this copyright can be tricky. For example, let's say you create a school hallway background for your ren'ai game. If someone takes that image and uses it in their game, you can sue them. However, if they create their own background of a school hallway, you can't, even if it looks somewhat similar. This is because the representation of the hallway is protected, not the hallway itself.

5. MUSIC/SOUND

Music/Sound copyrights are similar to Written and Visual Art copyrights. However, there is one major difference: there are two things to copyright: the music/sound and the recording of the music/sound.

Copyrighting the music/sound (Form PA for Performing Arts) covers the song or sound itself. This is the most important copyright, as it allows you to sue someone else for creating a different recording of said sound/song. You can't create a new version of Outkast's "Hey Ya!" with your own band and sell it, because Outkast (or, technically, Outkast's record label) owns the rights to the song itself, not just the recording of the song.

You also need to protect the recording of a sound/song (Form SR for Sound Recording) to prevent people from copying it. This is the copyright that allows the RIAA to go after illegal music-swappers.

If you only protect the recording of a song/sound, and not the song/sound itself, anyone can make a new recording of the song... and even copyright the song itself! (think "Happy Birthday to You"). If you protect the song itself, but not the recording, that recording can be distributed freely without fear of legal repurcussion.

(of course, you do still technically own the copyrights to both the moment you create each one, but you have to prove it in court, remember?)

As an interesting case where only the recording would be copyrighted, think of a standard classical music piece (Say, Beethoven's 5th Symphony). An orchestra could play and record it, then file a Form SR to copyright their recording of it. Since Beethoven's 5th Symphony is in the Public Domain, they can't file Form PA to copyright the song itself, but they can protect their performance of it, and make money by selling it.

6. CODE

Code falls under a Literary copyright (Form TX). See "SCRIPT" above.

7. LOGOS, SYMBOLS, ETC

Logos and Symbols protected by Trademark/Slogan Mark registration are similar to Visual Art copyrighted using Form VA (Visual Arts). However, it categorizes the logo/slogan as well as protects the visual logo or slogan wording. It also allows wording and logo to be combined into one to represent an entity.

---

That covers most of it. Basically, any Intellectual Property is protected by copyright or trademark, either registered or unregistered (™ vs. ® for Trademarks). Duplicating or creating similar properties is technically a violation of this copyright/trademark and, if registered, legal action can be taken to receive compensation or cease usage of said intellectual property.

This is the reason why, for example, a MacDonalds restaurant in an anime (like InuYasha, for example), isn't really a MacDonalds ("WacDonalds" in InuYasha), and why the "Happy Birthday" song varies from show to show. It's the reason "Street Brawler II: the Global Warriors" featuring Wonka, Tammy, and M. Buffalo won't make it to market, and why, when making fun of popular songs, the songs are different in both lyrics and music.

If you are going to use existing materials, be they images, sounds, text, logos, or anything, you should first obtain permission to do so, especially if you potentially plan to make money off of the final product. And it's also a good idea to register the copyright of your material before distributing it, if you don't want anyone and everyone to rip you off.

For more information, I recommend the U.S. Copyright Office and U.S. Patent and Trademark Office sites.

Hope this helps.

P.W.

[Megaman Z]

I just fired off an Email to PCGAMER. the people who have subscriptions and read the letters should already have a clue why.

the letter was in response to the reply PCGAMER gave to this one person asking about the "Mod Crackdown" article. PCGAMER basically said that the TRADEMARK LAW was the basis on which some companies were shutting down mod teams, but said that if a TANGIBLE idea (like star wars) wasn't trademarked, than the creator risks losing the rights of it to another person. as PixelWrangler pointed out, there is an implied copyright on all materials.