On Friday 12th May this year. Tears Of The Kingdom®, the latest game release in the Zelda® video game series was released as a Nintendo Switch® exclusive. It sold more than 10 million copies in just three days. Whilst music has become largely subscription-based and much of our tv and film is delivered to us via streaming services, the gaming world hasn’t had to reinvent itself anywhere near so much. Visual graphics in the last decade have advanced at a jaw-dropping pace whilst the financial and structural model of the industry has stayed reasonably stable. It’s been profitable too, with video games in the UK being sold for an average £36.47 in 2022 according to Statistica.
Independent game developers, as well as game development studios and start-ups, have the potential to earn a considerable income if they successfully sell games through a publisher or even self-publish. It's not just about the high earnings either - game development is also a highly rewarding artistic and technical endeavour. However, the gaming industry faces a minefield of legal obstacles and potential issues, so legal considerations for game developers must be fully explored and understood, not just before publishing but throughout development. The last thing you want to do, when you have a game all ready to sell, is to be held up by a range of legal processes that you could have been undergoing in the development stage. It’s a bit like waiting until the kettle has boiled before you get the mug and the teabag out from the cupboard.
So, allow me to give you a fairly brief overview of the legal aspects you may need to consider if you’re developing video games in the UK.
Intellectual Property And Video Game Development
In the UK, video game development falls under automatic copyright protection. As an original work, it belongs to the creator by default and this can protect the code, storyline, art, characters and design, amongst other things. It’s important to note that copyright doesn’t protect ideas and only applies once physical work has been created. So, if you think you have a groundbreaking concept for a video game, keep quiet, because copyright won't kick in until you're in development.
Even if you, as a developer, make a legal agreement with a publisher you would not necessarily be giving away your copyright, only licensing your material. Where it all gets a bit more complex is regarding other artists' copyrighted material you may wish to use in your game.
If you’re basing your game on an existing story/concept or using existing characters then you’ll need to obtain a core IP license. Think about FIFA ®, the Harry Potter ® games and anything Disney ® related! Depending on how well-known the story/character is, you can expect to pay a considerable license fee and you may well not be successful in obtaining permission to use or recreate the material.
If you are creating a completely original game then everything created by you for your game will be protected by copyright law. However, often some material created by others is necessary for gaming development, such as music, voice overs, sound effects, some design elements or special features. For any elements of your game that you have not entirely created yourself, you must secure the IP rights.
Most freelancer contracts will include clauses around signing over copyright for commissioned work, hence why working with work-for-hire designers, developers, voice-over artists and artists can make the process and legalities of ownership simpler.
You must have a written agreement addressing copyright assignment for any feature in your game not completely designed by you. If you are unsure of whether you own the copyright on any element of your game or you need a contract agreement for working with freelancers, then get in touch for gaming sector legal advice.
Intellectual property ownership is vital when it comes to getting your game published. Publisher contracts usually insist on a binding declaration that you own all the content and rights to your product/software. If this is found to be misleading in any way you may find yourself liable to reimburse or even pay compensation to the publisher.
Trade Marks In Gaming
When we think of trade marks we often think of logos. More broadly though, trade marks are badges of origin. They alert consumers to your association with the product. As copyright law protects direct copying of your work but cannot necessarily prevent imitations of your creations from popping up, the gaming industry tends to utilise trade marks to allow gamers to recognise the original work.
If you need assistance applying for a trade mark for your gaming studio logo or for certain elements of your game then please get in touch.
Game Developer Publishing Agreements
Whether you’re a solo developer, are in partnership with another creator or have started a gaming studio, you’ll be wanting to publish your game at some point so that others may enjoy it and you can start generating an income. Similarly to the book publishing sector, it is entirely possible to self-publish. However, you are unlikely to have the buying power, distribution knowledge or influence of an established publisher who will usually be able to get your game to market faster and with far more visibility.
Marketing your own product is extremely challenging, can be expensive and may involve expertise or require connections you don’t have. Additionally, if you do run into any legal issues, it can be useful to have a publisher behind you. That said, there are disadvantages also to working with publishers. They will take a sizeable chunk of sales in exchange for the promotion, production and distribution they have provided and they will likely want to secure themselves future rights too.
Publishing agreements can be complex and rarely relate only to the game itself. It is not unusual for gaming publishers to include clauses regarding merchandising, game sequels, localisation of the game into other territories, marketing, and IP ownership in their contracts with game developers. This is why publishing agreements for gaming developers should always be checked by a commercial lawyer who can then be instrumental in negotiating the best publishing deal. At the same time, it may be a good idea to double check you own all the copyright you need in order to be able to license the game.
Do you have all the rights to publish / licence the game to a publisher?
Have you used any third party's services/content when developing the game? Have you put in place proper legal agreements to document all the rights?
Have you thought about trade marks?
If using a publisher - think carefully about the extent of the licence you are willing to give them.
Remember to consider any data privacy issues if the game is being played online and you're collecting personal data about the gamers.
Are you intending on using any in-game advertising - stop and think - are you compliant with advertising codes and are agreements in place with the advertisers to deal with the advertisers fees, etc?
Don't forget to get your PEGI rating - this is the age rating for video games.
Get in touch if you have any questions or need a chat about video game development/publishing.