Legal Issues in Game Software Creation

Note: I am not a lawyer and the following should not be considered legal advice. Double-check everything and hire a lawyer.

As I continue to work on Veure, I have the added fun of less time spent working on it while I try to understand the legal problems. If you're going to create and publish your own game, you'll invariably hit legal issues. What's worse, you might discuss them publicly and some bright spark will vaguely remember an online article, dumbed down for mass consumption, regarding a complicated libel lawsuit for the print industry and swear up and down that it applies to you. They won't supply a link.

In fact, software games seem to have some peculiar legal issues all their own, compounded by the fact that they're often indie games created by hyper-intelligent, well-read individuals who either don't think of legal issues or assume they already understand them. On the off chance that they're right about a given issue, there's also one tiny detail they often overlook.

Years ago I was working for a large firm that started publishing logs on their intranet of employees who were trying to visit blocked sites. What's worse, they published the sites those employees were visiting. Even the URLs were cringe-worthy and there were some managers I had trouble looking in the eye after that.

Not many employees knew about that, but I went and argued they had to take those logs down. They were so disgusting and damaging that lawsuits were bound to follow. I was told to reread my employment contract. Their lawyers assured them that due to how the contract was written, the company would win any lawsuit. I asked "OK, how much is it going to cost you to win those lawsuits?"

They took the logs down the next day.

So that's the most important point to remember here: even if you're "right" doesn't mean you'll win. If a multinational corporation decides that you might be infringing on a trademark, legally trademark owners have no choice but to try to enforce their trademark lest they lose it. And even if you are convinced you didn't infringe, you still have to have your day in court and they can throw lawyers at you all day long. They're not being evil: loss of a trademark can cause substantial business damage. You can go bankrupt without doing anything wrong. So be careful.

While we're talking about trademarks: you'll need one. Many people mistakenly confuse copyright and trademark. Sure, your story or game is "copyrighted" the second you create it, but you can't copyright the underlying idea, only how you chose to express it.

A trademark, on the other hand, is a specific word, symbol, or device associated with a good that is used to indicate the origin of that good. Registering your trademark gives you the right to prevent others from using confusingly similar words, symbols, or devices. So if your brilliant dieting game is registered under the name (a domain name which is surprisingly unregistered), you can't protect the use of the word "unswallow" unless you trademark it.

If you think this is much ado about nothing, there was a relatively famous lawsuit where the creator of the game CandySwipe had his game copied as "Candy Crush Saga." The company which copied the game could do so legally (remember: you can't copyright an idea), but they could also create a confusingly similar title because it wasn't trademarked. Then they tried to trademark the words "candy" and "saga" and threatened to sue CandySwipe, the game they copied, over the use of the word "candy" in the title.

Oh, but what about fair use and parody? So long as I'm not substantially infringing, I have a right to use a minor sample of someone else's creative work, don't I?

No you don't. Fair use and parody aren't rights, they are legal defenses. You're admitting infringement, but asserting fair use or parody as a reason why you should be exempt from the laws regarding libel, slander, infringement, etc. Do you see a problem with that? There have been many lawsuits against video games for this and you may win, you may not. Could you afford to fight Lindsay Lohan's lawyers? What's worse, you could argue that you didn't infringe, but that could make a later fair use/parody defense difficult because it's hard to assert why your infringement should be excused when you argue that you weren't infringing in the first place.

Yeah, it's a legal minefield out here and I've only touched on a few of the issues. If you're not paying attention, getting across it is a matter of luck. If you want to understand more, the video game attorney Ryan Morrison has a twitter feed and frequently offers free video game legal advice on Reddit. Don't have your dreams destroyed because you weren't paying attention to the law.


quote: "but they could also create a confusingly similar title because it wasn't trademarked." In the linked article, a letter from the original creator states: "So when you attempted to register your trademark in 2012, I opposed it for ‘likelihood of confusion’ (which is within my legal right) given I filed for my registered trademark back in 2010 (two years before Candy Crush Saga existed)."

Sounds like he did have a trademark, not that it did him any good in this case.

It's also worth pointing out that most of the pitfalls you mention apply in the USA, because american courts generally don't make the loser carry all legal costs; while in many other countries legal costs only come into play if you think there's a chance you might actually lose.

About Ovid

user-pic Freelance Perl/Testing/Agile consultant and trainer. See for our services. If you have a problem with Perl, we will solve it for you. And don't forget to buy my book!