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Possible to copywrite game concepts before making game?

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Just curious if it is possible to copywrite the fictional universe (characters, technology, background info, etc.) you have developed for your game, before actually creating the game. I say this because I have a lot to learn programming-wise, but I have so many ideas for my games.

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I'm no lawyer, but I'm guessing you need to officially publish something to prove it's your IP. Write a book =]

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Original post by Omid Ghavami
I'm no lawyer, but I'm guessing you need to officially publish something to prove it's your IP. Write a book =]


So write like a novel with my game plot? Great idea! Ya know, my official website (that has all my projects, art, etc.) will be up soon once me and my friend finish coding it, so I could submit all my drawings and stuff there, copywrite them, then write and publish the storyline in novel format. Is that what you had in mind?

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Spend your time creating your universe. Don't bother trying to defend it from the evil IP Thieves until later.

You should also review the differences between different forms of IP, such as the differences between copyrights and trademarks. The former prevents literal copies and a specific range of derivative works, which probably isn't what you are looking for; the latter prevents use of the distinctive elements of your universe, which is probably what you are hoping to achieve.

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To be frank there's little you can do to protect your ideas until they're in a fixed, tangible form. Trademarks identify brands in commerce-- they designate the origins of a product. Copyrights don't protect ideas, only original works of authorship that are in fixed, tangible form. Furthermore, copyright infringement is in itself both costly and difficult to prove.

Trademarks are not typically used to protect specific elements of a product unless that product is already in commerce. Furthermore, trademarks protect *brands*, i.e., how a product is identified in the stream of commerce. Obtaining trademark registration for individual elements of a work is INCREDIBLY costly (almost $500 per registration). It really isn't advisable and typically only employed to designate a trade name or brand name.

I'd think that your best method of protecting yourself right now is to keep your idea to yourself. Only disclose the concept to people you trust, preferably subject to a Non-disclosure agreement. People working on the project should absolutely sign a NDA that clearly identifies the product in question.

Best of luck!

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Best copyright protection ever!: come up with an original idea. It's almost impossible for someone else to make a game like yours if you think up a game no one else can. Just don't go around telling everyone about your games who's not a friend.

Although, I'll admit I was quite aghast when I heard of Guilty Gear 2 (I even had a game design document all laid out! [sad]) and when I found out that the title "Orbital" was already used for a game, but they were such unlikely occurrences, I don't doubt the safety of ANY of my other games. I mean, how unlikely would it be for someone to make shmup pinball?

Although, I do think if there's a name you want for your game, and you really think it's so worth it and no other name will do, and you really do think it could be used for another game, maybe it would be good to register. I don't know, I'm no lawyer.

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I love how much very bad advice the OP is getting in this thread! I'm not talking about Mona or Ra or F. Rob, either.

Omid and Splin, you guys should simply not reply to legal questions. That would be much better than giving the very bad advice you've given the OP here.

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Original post by Tom Sloper
I love how much very bad advice the OP is getting in this thread! I'm not talking about Mona or Ra or F. Rob, either.

Omid and Splin, you guys should simply not reply to legal questions. That would be much better than giving the very bad advice you've given the OP here.
Come on Tom, you're too professional to post just to criticise. If you're going to deride the advice on offer, say what's wrong with it or simply counter with something better.

I have a question. Do you have to copyright your universe to protect it? Or do you have intrinsic legal rights to it as long as you can prove it was your original invention?

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doo wrote:
>Do you have to copyright your universe to protect it? Or do you have intrinsic legal rights to it as long as you can prove it was your original invention?

The latter. But registering a copyright is better, if it ever comes down to legal action.

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Original post by Tom Sloper
doo wrote:
>Do you have to copyright your universe to protect it? Or do you have intrinsic legal rights to it as long as you can prove it was your original invention?

The latter. But registering a copyright is better, if it ever comes down to legal action.



To add to what Tom said, and to be a bit anal retentive....

Under US law, at least:

1. You can't bring a suit for infringement without first registering your copyright.

2. You're only entitled to statutory damages if you register your work within a specific time period after publication.

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A copyright doesn't really protect you unless there is something out there and you can prove that someone had knowledge of your pre-existing IP. So just copyrighting it and sticking it in a drawer somewhere is absolutely pointless.

Patents, on the other hand, do not require knowledge of the pre-existing IP.

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Original post by smitty1276
A copyright doesn't really protect you unless there is something out there and you can prove that someone had knowledge of your pre-existing IP. So just copyrighting it and sticking it in a drawer somewhere is absolutely pointless.

Patents, on the other hand, do not require knowledge of the pre-existing IP.

Sigh.

Patents are protections for processes and methodologies. They will provide no protection for his fictional universe.


For those who aren't bothering to learn even the basics...
* Copyright protect copies from being distributed
* Trademarks protect your marks and distinctive elements
* Patents protect processes and procedures


Since the OP hasn't created his universe yet, he doesn't have a copy which can be stolen. He doesn't have any marks or distinctive universe elements used in trade that can be protected, and he doesn't have any processes for doing things within his as-yet uncreated universe.

You cannot protect IP which is still an idea. You must create something from the idea before you get any protections.

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Firstly, I am not a lawyer [smile] but...

Copyright is an automatic thing, you gain immediate copyright over any original and tangible work generated by yourself. That is to say the work must not infringe on anyone else's IP and it must exist in an instance of a form that can transfer the information on more than one occasion (so verbally and mentally don't count). It can also be registered to strengthen it for making court cases.

Names, titles and phrases cannot be copyrighted; if you want to reserve those for a trading business or product then use a trademark.

An idea or invention cannot be copyrighted. If it were presented in a tangible form then only that unique expression of the idea is copyrighted - the idea itself remains open. To protect an idea use a patent.

So, the idea for your fictional universe is not copyrightable, nor are character names, ideas for technology or information. They're probably not even patentable because the idea is not useful in a practical sense.

What you may do, however, is put them all in a tangible form (descriptive design documents, diagrams/drawings, written stories) and then it becomes a work that is uniquely expressive of an idea and thus copyrightable. People would still be able to create work around the same idea but would not be allowed to use or even adapt your literary rendition of the idea to do so.

As an example: I could write a story about a boy that goes to a wizarding school without infringing on any IP because it's just an idea. However, if I were to call him Harry Potter then it would clearly be (or a court would assume it to be) a derivative work of JK-R's rendition of the idea and then it becomes illegal.

But what about the non-copyrightable nature of names? Well there would be nothing in copyright law that prevents me from writing a story about a post man called Harry Potter; I could even call the book itself "Harry Potter" and copyright can't touch me - on the other hand I suspect it's a registered trademark which would prevent me from doing that.

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Quote:
Original post by frob
Patents are protections for processes and methodologies. They will provide no protection for his fictional universe.
I didn't say they would... I was only responding to (what I perceived as) the OPs belief that a copyright would be enforceable when dealing with a party who didn't know about the copyrighted IP. That works with patents, not copyrights--to infringe upon a patent you need not have knowledge of the existence of the patent. If two parties develop a similar storyline independently of one another, there is no copyright infringement. If two parties develop a similar process/methodology/"invention" independently of one another, one of them may, indeed, be infringing on a patent held by the other.

I didn't intend for that to imply that you can patent a plot idea. My point was simply that if you copyright it and stick it in a desk, you have ZERO protection because nobody could know about it and, therefore, nobody could intentionally infringe on your IP rights.

Quote:
You cannot protect IP which is still an idea. You must create something from the idea before you get any protections.
Yes, you can patent ideas which are not implemented, provided that they fall within the realm of things which are patentable.

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I think these things depend on the context. You could have a story with a character called Harry Potter if it was a crime drama, but I guess if it were based in a magical universe you'd get in trouble.

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Original post by smitty1276
Quote:
Original post by frob
Quote:
You cannot protect IP which is still an idea. You must create something from the idea before you get any protections.
Yes, you can patent ideas which are not implemented, provided that they fall within the realm of things which are patentable.

How about no.

The patent itself is a detailed specification of the invention which enables any skilled person to implement it.

Something that is "still an idea" won't have enough detail for anybody to implement it. At that point, it is no longer an idea but an actual invention.

Further, the USPTO may demand models, drawings, or specimens as appropriate to prove the existence of the invention. Before the patent is granted, anybody may challenge it, stating that there is insufficient detail, and demand those same proofs that the invention actually exists.

Example: If you have an idea for traveling back in time you can't patent it. Once you actually invent/discover the process of traveling back in time and can provide a detailed specification that an appropriate group of people could ducplicate, it is no longer an idea but an invention, and may be patented.

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Original post by frob
Further, the USPTO may demand models, drawings, or specimens as appropriate to prove the existence of the invention. Before the patent is granted, anybody may challenge it, stating that there is insufficient detail, and demand those same proofs that the invention actually exists.
I believe that is covered by "the realm of that which is patentable." A detailed specification of the invention is patentable. You don't have to have a physical implementation of it.

We are saying exactly the same thing, but you using a much, MUCH broader definition of "implementation". You're getting worked up over a minor semantic difference, which arose from your original straw man.

Long story short, what I said is absolutely true and is what the OP needed to know:

A copyright is not like a patent, which can be infringed upon even without knowledge of the patent. A copyright requires knowledge... if two products are developed independently, nobody can be liable for copyright infringement. Therefore, copyrighting the idea and putting it in a drawer (or whatever) gets you nothing.


[Edited by - smitty1276 on August 3, 2008 2:19:40 AM]

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Original post by madelelaw
To add to what Tom said, and to be a bit anal retentive....

Under US law, at least:

1. You can't bring a suit for infringement without first registering your copyright.

2. You're only entitled to statutory damages if you register your work within a specific time period after publication.

To add a bit to what you wrote, the registration rules appear to be different for other countries. I know that Australia for example doesn't have a system for registering copyright. You get copyright protection at the time of creation in tangible form. Registration in other countries like the US can be used to strengthen court cases in Australia, but I don't think it's mandatory.

(Note: I'm not a lawyer, nor am I one in training [smile])

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The UK is the same as Australia. Registration isn't required in order to take legal action for infringement.

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Original post by Tom Sloper
Omid and Splin, you guys should simply not reply to legal questions. That would be much better than giving the very bad advice you've given the OP here.


Well, that would be why I did talk about legality except for the name thing. If you want to call me out on that, fine. But do you really negate the idea that having a game idea that is unthinkable to any but that one person (and, I believe creative people are capable of such phenomenon) it's likely (plossible but not with good chances) to get randomly thought up by another person and made before the original thinker could put it in physical form?

It's more an argument of statistics than law. It's like asking if I flee from beaches because a shark might attack me while knowing that millions of people go to beaches each year and only 60 might get attacked by a shark.

And why is it that, on several occasions, I've seen you post that someone's wrong and not say why until someone asks? It just seems unhelpful.

Quote:
Original post by d000hg
I think these things depend on the context. You could have a story with a character called Harry Potter if it was a crime drama, but I guess if it were based in a magical universe you'd get in trouble.


So, no one would sue over the tademark? I can't exactly call the main character of my book Mickey Mouse, can I?

As noted, I'm not a lawyer. I'm not being sarcastic, I'm seriously interested.

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Quote:
Original post by Splinter of Chaos
Quote:
Original post by d000hg
I think these things depend on the context. You could have a story with a character called Harry Potter if it was a crime drama, but I guess if it were based in a magical universe you'd get in trouble.


So, no one would sue over the tademark? I can't exactly call the main character of my book Mickey Mouse, can I?
Mickey Mouse isn't a normal name. But there must be thousands of real people called Harry Potter.

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"spli" wrote:
>on several occasions, I've seen you post that someone's wrong and not say why until someone asks? It just seems unhelpful.

It's not my concern to educate responders about where they've gone off track so they can give OPs better advice next time - my intent is solely to help posters when they ask a question. What's unhelpful is to go off on a completely unrelated discussion of trademark when the OP's question is about copyright. Someone who reads a legal question and doesn't know the right answer ought to just stay silent.

I understand the impulse to offer guesses (as omid did) or to just jump in and chat on unrelated matters. But legal questions are a special category. Someone who gets bad programming advice will just get a bug. But someone who gets bad legal advice can wind up in court or even in jail.

When someone has a legal question, it's best to jump in only if you know the answer or at least have a useful example to add. On this forum in particular, we have people experienced in legal matters (and one soon-to-be-lawyer) -- so why not just let those people answer the questions.

>on several occasions

I can only recall one time before this. More often than I tell legal question responders that they're wrong, I chide OPs for asking legal questions in a forum at all. Guys like omid see no problem with offering guesses, no matter what kind of damage wrong answers might cause for OPs. So if someone's going to ask a legal question in a forum, he should do so fully aware that he could get uninformed or confusing or just plain bad advice - and he should be prepared to weed it out, and if appropriate, get the right advice from an attorney.

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Quote:
Original post by Tom Sloper
"spli" wrote:
>on several occasions, I've seen you post that someone's wrong and not say why until someone asks? It just seems unhelpful.

It's not my concern to educate responders about where they've gone off track so they can give OPs better advice next time - my intent is solely to help posters when they ask a question.


But, if I were the OP and someone told me their opinion and another told me that opinion was bad, but offered no reasoning, I'd follow the one who rationalized their point. I wouldn't trust a person who believed another's opinion without rationalization.


Quote:
But someone who gets bad legal advice can wind up in court or even in jail.

Right. That's why I wouldn't respond to the LEGAL aspect of this point (I was responding only to the creative aspect, which you still haven't said why you disagree with) and I agree with you about Omid.

Quote:
Original post by Tom Sloper
What's unhelpful is to go off on a completely unrelated discussion of trademark when the OP's question is about copyright.


...Right...but...

Quote:
Original post by d000hg
Quote:
Original post by Splinter of Chaos
Quote:
Original post by d000hg
I think these things depend on the context. You could have a story with a character called Harry Potter if it was a crime drama, but I guess if it were based in a magical universe you'd get in trouble.


So, no one would sue over the tademark? I can't exactly call the main character of my book Mickey Mouse, can I?
Mickey Mouse isn't a normal name. But there must be thousands of real people called Harry Potter.


Believe it or not, there are kids named Mickey, and the last name Mouse. It's happened. Does this mean no one can sue over it?

And back to the copyright issue:
Would an actual lawyer here be able to answer: is it really so written on stone? It seems to me there have been court cases that have been won on both sides of the same issue. And of coarse, they probably had all sorts of different circumstances, but do we oversimplify the matter by quoting the law and calling it a day?

(Not offering bad advice that can get someone in jail, just asking a question.)


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Quote:
Original post by Splinter of Chaos

Quote:
Original post by d000hg
Quote:
Original post by Splinter of Chaos
Quote:
Original post by d000hg
I think these things depend on the context. You could have a story with a character called Harry Potter if it was a crime drama, but I guess if it were based in a magical universe you'd get in trouble.


So, no one would sue over the tademark? I can't exactly call the main character of my book Mickey Mouse, can I?
Mickey Mouse isn't a normal name. But there must be thousands of real people called Harry Potter.


Believe it or not, there are kids named Mickey, and the last name Mouse. It's happened. Does this mean no one can sue over it?

And back to the copyright issue:
Would an actual lawyer here be able to answer: is it really so written on stone? It seems to me there have been court cases that have been won on both sides of the same issue. And of coarse, they probably had all sorts of different circumstances, but do we oversimplify the matter by quoting the law and calling it a day?

(Not offering bad advice that can get someone in jail, just asking a question.)


First, this is all purely educational-- nothing herein constitutes legal advice.


If we're discussing name use, that's not a copyright issue, it's a trademark issue. Harry Potter and Mickey Mouse (the names themselves) are not copyrightable. Names can't be copyrighted. They are trademarked. Trademarks designate the source of a product's origin. The Lanham Act and unfair competition laws usually govern the US Federal law re: trademark infringement-- the test is whether there is a likelihood of confusion between two marks. There are also name and likeness issues, privacy right issues, etc., but those intellectual property-like issues touch on the rights of actual individuals.

In copyright, the test employed by courts for direct infringement is twofold: First, did the alleged infringer have access to the copyrighted matter, and second, was there a substantial amount taken from the copyrighted matter to constitute an infringement.

It can go both ways on both issues (trademark or copyright, depending on the infringing use). Sometimes it's easy to determine that an infringement occurred. Sometimes there are other matters to bear in mind, such as the technology used in piracy. There is nothing simple and clear cut in the law, particularly an area of law that is forced to adapt to changes in technology.

It isn't always clear whether something is subject to copyright protection. In fact an affirmative defense to copyright infringement is that the copyright isn't valid. Invalidity is a bit difficult to prove, as holding a registered copyright creates a presumption of validity. First, the law is fairly well settled as to what is and what is not subject to copyright protection. It helps that the Copyright Act isn't exactly ambiguous as to protected subject matter. Second, the court relies on the Copyright Office to determine whether a copyright is valid. This is slightly less of an issue for trademark, as state laws also protect purely intrastate trademark uses.

The POINT here is keeping people away from having to suffer the expense of testing all of these possibilities. Recommending anything that would put the OP or other people under the delusion that it's ok to do something simply because the law isn't "clear cut" is very, very bad advice. Court is expensive. Legal fees are nothing to sneeze about. You can't get E&O Insurance coverage unless you can provide adequate assurance to the insurance provider that your product is a low risk to IP infringement litigation exposure. These are all things developers and creators of game product have to keep in mind.

Academic speculation without the adequate academic background, especially in the legal area, is both tricky and in most cases risky. Please avoid saying or suggesting anything that may mislead the people who come here for help.

[Edited by - madelelaw on August 3, 2008 8:05:35 PM]

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