Here is part 2 of our 3 part blog series of posts to go over some of the basics of what you need to know about protecting your legal rights for your work.
Liz Surette is an attorney in Massachusetts who helps game studios protect their assets by providing services related to IP, contracts, employment, game content, and business matters. She has spoken on VR at the American Bar Association’s Business Law Section annual meeting, organized and moderated the PAX East 2016 legal panel, and written articles featured on Gamasutra and GamePolitics. Email: liz (at) overclockedlegal.com Twitter: @LizOvcLegal
Liz’s disclaimer: My answers to these questions are for informational purposes and should not be taken as legal advice. Although I answer some commonly-asked questions below in general terms, you should consult a lawyer about your individual situation because there is no “one size fits all” answer to any legal question. Always have your attorney go over any contract with you before you sign it.
4: Is there anything someone can do to protect their ideas in the initial stages of development while going to social demo nights or other kind of shows?
This is a very common question. An idea can’t be legally protected, but the expression of that idea can be. For example, a lot of people these days have the idea to make an MMO survival game that takes place in this or that kind of setting and having certain kinds of mechanics—but an idea can’t be legally protected because it’s so nebulous and not tangible. Your iteration on that idea would be legally protected—just as ARK: Survival Evolved and Conan: Exiles are because they’re manifestations of that idea being put into a form that people can interact with.
As for showing your game without having to worry about someone else copying what you’ve done, there is always a level of risk. This is less of a legal issue and more of a practical consideration—is the publicity and feedback from players worth the risk that comes with demoing the game? Most developers would say the chances of having your game “stolen” are low because any potential usurper of your idea would have to figure out how to make the game and then have the wherewithal and motivation to do so. (That is not my legal opinion, but the practical opinion of most indies I know.) You could have people sign Nondisclosure Agreements before they play, but that could have a negative impact on you in a community where the norm is to exchange ideas and be mutually supportive. This situation is very interesting because it involves balancing law with marketing/PR and management of professional relationships.
5: If someone was considering starting up their own company, how enforceable could a non-compete clause in their contract with a current employer be?
Generally, Massachusetts has enforced them because we haven’t had as many legal challenges to them as California has. But depending on your situation, it may be possible to work within that non-compete to accomplish your goals. I can’t give specific guidance on the subject here because every situation is unique, but I encourage anyone in that situation to make sure they understand their non-compete since it might be limited to certain industries, activities, locations, or time periods. In the end, enforcement is the burden of the employer–but you should always consult with a lawyer who can look at your circumstances and walk you through the risks.
6: With all the types of open licensing agreements out there, is there anything in particular one should be aware of or concerned about?
“Open source” does not mean “free”. FOSS is a tempting proposition and can be a way to save money, but even those licenses have their share of fine print. Some of them prohibit your final product from being monetized, and some of them require your final product’s code to be as open as the code you used. Also, your game could change while in development—at which time you might be using the software in a different way than you originally intended to and that new usage might violate the license. If you want to use FOSS, make sure to read and understand the license with the same care and critical eye that you would have when using commercial software.
Thanks Liz, for continuing a great Q&A series with your insight into IP, copyright and law in the industry! We’ll conclude this Q&A series of legal matters, covering licensing agreements and tips for finding legal representation in the following post, so check back soon!
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