Copyright and Game Design: Game Design & Copyright

What Does Copyright Protect? 

Governed by the Copyright Act of Canada, copyright protects an "original" work such as a novel, illustration and sound recording and gives the creator the exclusive rights to reproduce, perform, translate, publish, distribute and sell the work. This means you would need to obtain permission from the copyright owner to use a work unless the use (e.g. fair dealing) is allowed by the Copyright Act.  

Video and digital games can receive copyright protection. Copyright in games generally covers*:

• Software/coding 
• Artworks/images
• Music/sounds  
• Films (e.g. a trailer)
• Text
• Gameplay - images played onscreen as the gamer progresses through the game

In addition to copyright, other intellectual property law such as trademark can potentially applies (see). If you want to use someone else's music in your own commercial video game, you would need to obtain permission from the copyright owner of the music but you would own copyright to any original elements you have created in your game. 

Who Owns the Copyright of a Work? 

Copyright ownership belongs to the creator of a work unless the creator assigns it to someone else. For example, a video game company may ask an independent developer to sign over their copyright in a contract. In the case of an employment, the employer may own the copyright of an employee's work unless there is a contract stating otherwise.

In a joint work, all creators generally have copyright protection but this may also depend on each person's level of contribution and which part(s) they contributed to. A contract outlining copyright ownership of the parties involved is a good practice in a professional setting.   

What Doesn't Get Copyright Protection?

Facts and ideas are not protected by copyright. Copyright protects the original expression of an idea, not the idea itself. For example, there are many different iterations of fantasy role-playing games. 

*Image source: Copyright Sign (CC BY), Horia Varlan
Article source: Sellars, S., & Bicknell, P. (2015). Intellectual property rights in the computer games industry. Retrieved from https://ca.practicallaw.thomsonreuters.com/2-598-3565?transitionType=Default&contextData=(sc.Default)&firstPage=true&bhcp=1

In Canada, a work generally enters into public domain when its copyright expires 50 years after the death of the creator (although this will likely change to life+70 years due to the new USMCA trade agreement). It can then be freely copied and distributed. For performances and sound recordings, copyright expires 70 years after the release or publication date.

The copyright duration rules vary from country to country. For example, in U.S., the copyright term rules are complex, and copyright protection of most works remain longer in U.S. than in Canada. 

Copyright Registration

Copyright automatically applies when a work is fixed in a tangible medium of expression. Registration is not required although it would be helpful in a case of legal dispute. In Canada, Copyright and other IP registrations can be applied with the Canadian Intellectual Property Office (CIPO). 

Many Canadian creators also register their works with the U.S. Copyright Office since they can submit a copy of their work as evidence, which isn't required by CIPO.* Note that through international copyright treaties such as the Berne Convention, a Canadian work automatically receives copyright protection in many other countries including U.S. Also, when a Canadian work is used in another country, the copyright law of that country would govern. 

*Source: Harris, L.E. (2019). U.S. vs Canadian copyright law: Which has stronger copyright protection. Retrieved from https://www.copyrightlaws.com/u-s-vs-canadian-copyright/ 

Since most video games include various elements such as graphics, music and computer codes, these elements may be entitled to other types of IP protection. Some examples include:

• Trademark - protects an unique branding element that distinguishes a company from its competitors in an industry. Trademark can apply to things such as the names, logos, designs and characters. For example, the Super Mario character and the PS4 logo. Registration is not required in Canada and U.S. but is recommended if there is commercial value in a product or service. In Canada, trademark protection lasts for 10 years and renewals of registration are available. 
• Patent - protects a new and "useful" invention, tool, machine, or mechanical/technical process. Game rules and methods of play may not be entitled for copyright protection but can be protected through patent registration.* For example, Apples to Apples and Monopoly have patent protection for their modes of play. Software are also common for patent registration. Unlike copyright and trademark, registration is necessarily in order to receive patent protection. 
• Industrial Design - protects the original visual, aesthetic design of a product. For example, the unique shape and design of a console accessory and graphic user interface of a game. Industrial design registration is less common. 

Since copyright is limited in its scope of protection, some professionals in the game industry obtain multiple IP registrations in order to protect their assets.**   

*Source: Chellgren, B.W. (2016). Copyright law does not protect structure and game play of card game . Retrieved from https://www.lexology.com/library/detail.aspx?g=05891d4f-1658-4f00-884f-8310cfeb4b0f

**Source: Sanft, J. (2017). Get your IP game on: intellectual property protection and video games. Retrieved from https://www.thebrandprotectionblog.com/get-your-ip-game-on-protection-video-games/?utm_source=Mondaq&utm_medium=syndication&utm_campaign=View-Original

The following section makes some references to film making but the information is also relevant to game creators. 

If your use does not fall under fair dealing or another exception available under the Copyright Act, you would need to obtain permission from the creator or rights holder (if the creator transferred the copyright to someone else) to use a copyright protected work. Also, if you are unsure on whether your use complies with copyright, you should also consider obtaining permission or use another copyright compliant option.

See below for a sample permission request letter and music licence agreements. However, please check first with your instructor to see if there is another template letter they recommend for you to use.

Requesting Permission:

Requesting and negotiating a licence for permission is often a time consuming process. The licence fee may also be expensive, and there is no guarantee that you can obtain a licence for the use. However, copyright clearance is very important because copyright can directly affect filmmakers' ability to use works in their films and their creative choices.

Steps for requesting permission:  

1. Determine if permission is required - Does an exception in the Copyright Act permit your use? If you are unsure, obtain permission or consider if there are other copyright compliant options (e.g. Creative Commons materials) available that could be used instead.


2. Identify the rights holder(s) of the material - Check the copyright statement to see if it indicates who the rights holder is. More research would be required if it is unclear who owns the copyright or the copyright has been transferred to someone else. Depending on your intended use (e.g. music performance), you may be able to obtain the rights from a collective (see Wikipedia's list of collectives), if there is one that can provide a licence for your use. Also, if it is a collaborative work, multiple individuals may own the copyright, in which case you would need to obtain permission from all the rights holders. 
   
   If you would like to include a recorded song or music in your film, you would need to obtain both: 
   • Master use licence - from the recording company (usually) to use a specific recording of the music in a film. 
   • Synchronization licence - from the composer or music publisher (if the composer has transferred the right to the publisher) to use or "sync" the music with visual elements in a film. 
   
   There is usually a fee for each of the licences, and the licence outlines the rights granted and scope of use (see the next section). The website of the Canadian Independent Film and Video Fund has more information on synchronization and master use licences and sample agreement forms.


3. Identify the rights needed for your intended use - 
   • What are your intended use? For example, to include a copy of the work or to perform the music and incorporate the recording in your film. Do you plan to show your work at film festivals? 
   • Are you using the work in its entirety or a part of it? If it is the latter, which part of the work do you want to use? 
   • Do you want to modify or adapt the work? For example, rearranging the scores of a song. 
   • Do you prefer exclusive or non-exclusive rights to use the work? Exclusive rights would permit only you to use the work in the specific manners you obtained permission for, which may be harder to obtain unless you commissioned an artist to create a work exclusively for your use. Non-exclusive rights would allow the rights holder to give permission to anyone to use the work in the same or similar rights granted to you. 
   • Duration of your use is an important factor to consider. You may want to be able to show your student film at festivals and events in the future. Obtaining permission to use in-perpetuity is ideal but may not be granted or too expensive. Some rights holders require an annual licence fee. It may affect your decision on whether or not you can continue to use a work included in your film. 
   • Territory of your use. Do you plan to show the film outside of Canada? In US and/or other countries?     


4. Plan ahead for permission - Try to request permission well in advance since it will usually take some time (1-3 weeks) to obtain a response from the rights holder. Also, you should give yourself enough time and be prepared to have a backup option in case permission is not granted. You may need to pay a royalty fee if permission is granted, and at that point, you could try to negotiate the price and adjust the terms and conditions of your use if necessary. 


5. Request permission from the rights holder(s) - Request the permission in writing. The letter should include the specific rights you are requesting and details of your intended use.  If the rights holder provided a verbal consent, get a written confirmation of the permission and terms of use. A signature from the rights holder is also recommended; a scanned copy with the signature is fine. Film festivals and distributors generally require documentation of permissions from applicants. Also, documentation may help in case of a dispute down the road. 

There are companies that specialize in securing rights licences and have attorneys in house to manage legal issues for professional film makers.  

Adapted from Stanford University Libraries' The Basics of Getting Permission.