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Assessing your indie studio's intellectual property situation

Game lawyer Zachary Strebeck looks at the reasons to assess your game development company's intellectual property situation and how to do it.

Zachary Strebeck, Blogger

May 26, 2015

11 Min Read

Your game’s intellectual property is a valuable asset…

…whether you know it or not.

For indie developers making a board game or a digital game, legal issues are usually on the backburner compared to actually developing the game. However, a quick assessment of the company’s intellectual property (IP) can reveal serious issues and offer avenues of protection that may not be obvious.

Taking inventory

The first step in an IP assessment is to take inventory of what the company has created, what they are using, and what laws and agreements govern them. These may crop up in places you don’t expect. For instance:

  • Are you using Open Source Software? That’s IP licensed under an agreement that you need to abide by;

  • Do you have a blog where you are posting images found throughout the web? Major IP issues there;

  • Have you engaged contractors, such as artists and UI designers, to create game content? Are these relationships under work-for-hire agreements?

  • Do you have any patentable processes, trademarks or copyrighted material that you want to protect?

This IP audit can be undertaken yourself, but it’s probably best to get a professional to do it. You can walk them through what you’re using and what you’ve created. They can them present you with various options for what to do with that IP.

Keep an eye on deadlines

There are a ton of dates to keep in mind when dealing with intellectual property. For instance, if you’ve been granted a trademark, that mark must be renewed at certain points. Usually, the attorney that has filed that mark will remind you (they want your continued business, after all), but it is good to put them on your calendar to ensure ongoing protection.

For my clients, I provide a memo upon registration that clues them into the various time periods that are important for their trademark.

Trademarks aren’t the only thing with deadlines. Patents must be filed within a certain amount of time after being revealed to the public. Copyright registration should be done within three months of the date the work is published, in order to take advantage of statutory damages if you have to sue.


Be proactive

There are two ways to be proactive regarding IP protection: take care of your own and don’t tread on the property of others. This step includes many of the following:

  • Before you name your new game or company, do a trademark clearance search first;

  • Get proper confidentiality clauses in place to keep you trade secrets legally protected;

  • Register your trademarks and copyrights to get protection through the federal courts;

  • Avoid relying on things like fair use and first amendment grounds, unless it is very clear that you are in the right, since they need to be proven in court.

If you have created something that draws the ire of another trademark holder, they may send you a cease & desist letter. These generally threaten a lawsuit or some other legal action if you don’t stop using the IP. It’s usually a bad idea to ignore these, regardless of the merit of the claims.

Lastly, if you are using open source software or licensed content, be aware of the terms of that license. If you breach them, you may be receiving a cease & desist letter, or have profits made from the licensed content taken away from you.

If you need assistance with this assessment, why not contact a game lawyer? You can sign up for my mailing list to keep up with all the great blog content and receive my two FREE gamedev legal ebooks, along with my gamedev trademark and copyright checklists. 

Lastly, if you’re looking for game development contracts but don’t have the budget to hire an attorney, I’m creating a new site just for you. Check it out and sign up for updates as we get closer to launch.

photo credit: microscope and testTubes4 via photopin (license)

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