The videogame industry's a big business -- and sometimes, companies don't see eye-to-eye. And what happens when a dispute goes to court, and gamers get their grubby hands on fancy-sounding legal documents? Why, wild, inane, forum-fueled speculation, of course. That's where California-based corporate attorney and GameSpy freelancer Eric Neigher comes in. Objection! is your one-stop destination to learn what all that legalese means in plain English, straight from someone who knows the twisty-turny language of the law.
Intro
In the rare occasions when my overseers let me out of my cubicle to interact with other gamers, I'm often asked to give free legal advice to would-be designers, producers, and other guys in Naruto t-shirts. Typically, I tell these guys that the best way to protect their work is sign a contract giving me all intellectual property rights to whatever they create. Just, you know, for simplicity's sake. And this is why I have no friends.
By far the most common question that I am forced to avoid in social situations is: "how can I copyright/patent/trademark/protect my game design?" Generally speaking, this one and "is downloading porn off BitTorrent illegal?" (for the record: yes) are the two I get most. So, let's go through this, and hopefully you'll come away slightly more equipped to protect your awesome idea that 50 other people had in 1997.
Facts
First off, let's frame the question: when folks ask about protecting their game designs, they're touching on an area of the law known as intellectual property. Yeah, yeah -- you know what intellectual property means, and I need to stop patronizing you. Fair enough.
What you might not know, Smarty McPartypants, is that intellectual property can typically be broken up into four core types, or "regimes." These are: patent, trademark, trade secret, and copyright. Each of these is very different from the others, both in what it protects and in what kinds of protections it gives. For the purposes of this article we're going to focus primarily on copyright. First, though, I want to briefly put the others to bed for you, so you know enough to understand why copyright is what you need.
Trademark is a form of intellectual property coverage that is designed to protect symbols, graphics, and very short phrases (that is, slogans) from modification, unauthorized usage, or association with things that the trademark owners don't want their trademarks associated with. Trademark would cover things like the Nike swoosh, or Apple's "Think Different" slogan. In order to garner trademark protection for your symbol or phrase, you've got to formally apply to the Patent and Trademark Office (PTO -- called slightly different things in other countries), demonstrate a level of uniqueness, and be ever-vigilant of even the smallest infringement. Trademark can also apply to things like the way you package your product, although in this context it's referred to as "trade dress," and shares a lot of similarities with design patents (more on that in a sec).
For our purposes, don't worry about trademark. As a potential game designer/idea-havin'-genius, it won't affect you until you're rich enough to hire really good lawyers to handle it for you.
Don't worry about trade secrets, either. This is a regime that's designed to protect... well, secret information that is unique to a particular business's practices or products. The recipe for McDonald's special sauce or the recipe for Glenlivet Scotch are examples of this (food recipes frequently fall under this regime), but trade secrets can also involve actual business practices, such as the way in which a particular company manages its books. The catch here is that the stuff has got to really be secret -- only company employees can know about it, and it's got to be jealously guarded. Trade secret protection is usually invoked only when an employee or owner of a company defects to another one, or when honest-to-goodness corporate espionage occurs. But, as you can probably see by now, trade secrets have little to do with anyone's game designs.
Patent, my pedigree chums, is the third regime on our list, and it's what most people tend to think of when they're looking for ways to "protect" their ideas. This is totally, totally wrong of them, however; patent only extends to a very specific type of ideas (generally physical inventions) and only lasts a short time (typically 20 years). When we're thinking about engineering, science, layout, and other physical-related things, we're likely in the realm of patent. But when we're thinking about creative stuff -- about ideas or, more specifically, expressions of those ideas -- we're thinking about copyright (more on that in a sec), not patent.