Possible to copywrite game concepts before making game?

Games Business and Law Business

Started by Forestknight25 August 01, 2008 02:23 PM

32 comments, last by Omid Ghavami 15 years, 8 months ago

1,387

August 02, 2008 12:23 PM

Quote: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.

~Mona Ibrahim
Senior associate @ IELawgroup (we are all about games) Interactive Entertainment Law Group

smitty1276

560

August 02, 2008 12:48 PM

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.

frob

46,221

August 02, 2008 01:11 PM

Quote: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.

dmatter

4,872

August 02, 2008 01:43 PM

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.

David Gill :: GitHub :: twitter .

smitty1276

560

August 02, 2008 01:50 PM

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.

d000hg

1,208

August 02, 2008 01:54 PM

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.

frob

46,221

August 02, 2008 10:59 PM

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.

smitty1276

560

August 02, 2008 11:19 PM

Quote: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]

Trapper Zoid

1,370

August 03, 2008 12:26 AM

Quote: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])