In this series of three articles, we will focus on different issues for game developers to consider during the development, production and exploitation stages of game development.

This first article concentrates on considerations of confidentiality and intellectual property. The second article will focus on financing and distribution. The final article will cover other regulatory issues to consider such as consumer protection legislation, privacy and censorship classification.

Interactive gaming is big business; the budgets and revenue rival that of films and TV programmes. Games are interactive and addictive, and so there is little surprise that gaming is the fastest growing sector of the entertainment industry. This area of entertainment involves an interesting and complex array of commercial and legal issues to navigate.

Considerations of Confidentiality and Intellectual Property

Confidentiality

Confidentiality agreements (or non-disclosure agreements as they are sometimes referred to) are vital in the initial discussion stage of game development. These agreements are a tool used to protect valuable confidential business information that is not necessarily protected by intellectual property rights, especially at the “idea stage”. For example, if a developer pitches a game to a potential financier, publisher or distributor, they will be providing confidential information such as the game’s story, gameplay and budget. A confidentiality agreement will be important to ensure the recipient cannot retain or use any of that material for their own use or to disclose to others.

A confidentiality agreement should cover;

  1. what the parties consider to be “confidential” under the circumstances;
  2. what the confidential information can be used for;
  3. the level of care and steps to be taken to protect that information, and;
  4. what happens if the information is disclosed to someone it is not meant to be disclosed to (including available remedies for breach).

Intellectual Property

Copyright

Games are made up of various creative works which are protected by copyright under the Copyright Act 1994. For example, software code underlying the game is protected as “literary works”, visual elements; such as characters, landscapes and graphical user interface components are “artistic works” and music also involves several copyright-protected works under the Copyright Act 1994.

Other Intellectual Property Rights

Some countries allow patent registration for software. However, the New Zealand Patents Act 2013 prevents a computer program “as such” from being an invention capable of patent protection, and this limits the kinds of software that can qualify for patent registration in New Zealand. A game developer may also seek to register trademarks to cover distinctive names (such as game titles or key character names for example) or logos.

Pre-development Due Diligence 

When considering a game title, for example, it is essential to conduct a search to ensure that name is available for use and will not infringe any third party’s existing use of the same or similar name. There have been a number of high profile instances where companies start using a title which is already being used by another company and has resulted in large settlements being negotiated.

It is important that a game developer acquires all necessary rights to be able to exploit the game as widely as possible, either by owning material or by licensing it. Anyone who has contributed to the game, such as the writer of the “script”, will need to assign all required rights to the game developer, this includes the use of;

  • middleware,
  • open source software or
  • existing music.

These elements need to be licensed and any licensing restrictions will need to be complied with.

Further protection of intellectual property

The use of encryption and digital rights management technologies can help to prevent piracy or “cloning” of the game itself. Where an infringement of copyright or a trademark is detected, a cease and desist letter should be sent to the infringer and, if online, a takedown notice should also be sent to the infringing party’s internet service provider.

Summary

Be aware that if a game is going to be exploited outside of New Zealand (for example over the internet and with no geo-blocking restrictions), intellectual property rights and protection vary from country to country, and advice in multiple jurisdictions may need to be sought.

Clear contractual arrangements will be important and obtaining rights up front will help to prevent ambiguity and disagreement. Due to the complexity of intellectual property involved in games, it is always recommended that specialist legal advice is sought, to allow developers to effectively manage acquisition and licensing issues.

For More Information

For further information or to arrange an initial consultation with one of our Wellington-based media law experts, contact Rochelle Cooney, email rochelle.cooney@morrisonkent.com, phone (04) 495 8910 or Andrew Stewart, email andrew.stewart@morrisonkent.com, phone (04) 495 8921.