(C)opyright Chronicles with Kris Kotwicki

The Copyright Chronicles is a series of interviews with creatives from different backgrounds, focusing on their practical experience of copyright law. For our second installment, Caiti from FAME chatted to Kris Kotwicki from Creative Artists Law.

Before becoming a lawyer, Kris worked as a Senior Artist in the computer games industry for a major publisher. Kris specialises in information technology law, intellectual property law and telecommunications law, negotiating for and against the largest multi-nationals, banks and law firms in the world on deals whose values ran into hundreds of millions of dollars. Kris also advises on film law for productions both large and small. Kris has a Juris Doctor of Law from the University of Queensland as well as a Bachelor of International Business. He was admitted as a Solicitor in January 2007 and enjoys 2D and 3D illustration as well as photography.

What are the most common copyright issues you encounter in the video game industry?

Perhaps unsurprisingly issues around ownership of copyright are the most common issue that we encounter. Copyright is a form of intellectual property, which itself is a form of property, and that can, of course, be a highly valuable asset.

Developing a game is an increasingly expensive proposition and therefore the exploitation of a game’s intellectual property is of central importance to a game being successful.

Integral to this, is owning the rights in the game and having the proper legal arrangements in place. This is especially important because the development of a game is often a collaborative effort, so invariably multiple people are involved as well as multiple works. Where you have many moving parts, and sometimes, especially when starting out, an absence of the proper paperwork, it’s not hard to end up muddying the waters around copyright ownership. An ensuing copyright dispute can really grind a project to a halt, resulting in significant litigation costs and put at risk substantial investment.

In a similar vein, a developer may also feel that third parties are infringing on their copyright, or conversely, some third party may claim their copyright is being infringed by a developer. A lot of these issues stem for the generally poor understanding of copyright that exists in the broader
community.

How does intellectual property work in game development?

From a legal perspective, intellectual property plays a central role in game development and is one of the key areas of negotiation in many contracts that relate to game development. It really goes to the core of game development because a game itself is always composed of intellectual property, both in its contents and the tools used to develop it. Intellectual property is also relevant at all stages of the game development cycle, from pre-production right through to use by the end-user, it really is the life-blood of computer games development.

How do indie game developers and bigger software developers differ in trademark law?

The approaches taken by developers will tend to depend on their resources and how much they are willing to allocate to proactively safeguarding their intellectual property.

Registering trademarks is a time-consuming process and there is a cost associated with it that can quickly rise depending on how many trademarks, classes and territories a developer is looking to register trademarks in. A larger developer is likely to have more in-house resources to devote to addressing trademark protection at an earlier date as well as to enforcing their rights once registered.

The issue for small developers is that, where they do not take proactive steps, they can end up investing quite a lot of time and resources in branding their game without having checked if there are potential trademark conflicts. Depending on how far down the road they are, that can then be a costly and time-consuming process to rectify and they may find themselves embroiled in a lawsuit as a result.

So the key is really to plan ahead, which, even for small developers, can avoid many issues.

Why should developers sign a contract before starting work on a game?

It’s always best to get the paperwork in place before you start on a project because it will help everyone who is signing to crystallize their thoughts and intentions. Absent a written contract, there’s a higher risk that misunderstandings may exist between the parties and you may be forced to rely on, for instance, an oral contract that can be difficult to prove.

Many misunderstandings may not be readily evident when starting out because of many of the ‘what if’ scenarios that a written contract pushes the parties to contemplate will not otherwise be front and centre in people’s minds on day one.

Of course, some people will put off getting the paperwork in place either due to cost or not wanting to focus on it initially. One reason is that few people want to be thinking about legal issues such as termination rights when they are just starting out—after all, who wants to sit around thinking about divorce scenarios at the start of their marriage? What band wants to be thinking about splitting up when they are just forming?

You’ll be glad, however, that you did get the paperwork in place if you do end up having a dispute down the line. The cost of putting in place a contract will also pale into insignificance compared to the costs of potential litigation down the road.

Hopefully, of course, you go on to great success, and many of the provisions of the contract remain theoretical scenarios, however, just like taking out an insurance policy, it’s great to have something that can be turned to if the worst does happen.

How many problems can be solved by writing a basic contract between developers before starting development on a game?

A basic written contract will substantially lower your risk profile with respect to intellectual property issues. A contract is at its base level allocation of risk between the parties and if the parties have taken the time to negotiate that and sign off on it then you have a document that
can be turned to in the event of any dispute. This is invariably a better position than relying on, for instance, an oral contract that is harder to evidence.

It will, of course, depend on the specifics of the contract and how well it is drafted. A basic contract for a complex scenario isn’t necessarily going to address all the finer points between the parties, and such over-simplification can create its own problems. A common issue we see is that people write their own contract, perhaps by pulling something off the internet, they then think it means one thing when in fact it means another. It’s also of critical importance not just what is in the contract, but what is not. To that end, a little bit of knowledge can be a dangerous thing. The devil can be in the details with respect to intellectual property. Therefore it’s important then that the contract is tailored to the circumstances.

How do non-competition clauses affect employees who start an indie studio?

Non-competition clauses can be restrictive to employees who want to start their own studio. It’s important to note though that such clauses can be drafted in such a way that their scope is too wide and they are too-restrictive (effectively stopping someone from earning a living) and in those sorts of situations they may not be enforceable. It will depend on the drafting of the clause so if in doubt, have a lawyer review your employment contract so you can see where you stand.

How accessible is copyright law as it applies to video game developers?

It’s not particularly accessible. There are a variety of resources on the internet that go over the basics of copyright law, and they can be of some use in helping to acquire some understanding of the law. Despite this, however, in our experience, we find a lot of people carry a lot of
misconceptions about the actual law. Ultimately this comes down to the fact that copyright law is complex and you have to be careful not to apply the wrong law to your situation, for instance, it’s pretty common to see people mistakenly assume that elements of US copyright law, such as fair use, apply the same in Australia.

The nature of the games industry and IT industry is also that technology is constantly pushing forward and invariably the law is trailing a few years behind, so it can it be a challenge sometimes for games developers to ascertain how the law applies to their particular circumstances. New technologies, such as for instance, VR, AR or AI open up new issues.

In the end, the complexity of the law and the nature of the industry means it’s best to use a legal professional, not least because it will free up your time to focus on the actual game.

What is the difference in IP requirements between game developers vs publishers?

A publisher is going to be concerned with making sure they can distribute a developer’s game with the least amount of issues possible. They will not want to be sued by third parties for any failures of the game developers (such as the developer breaching some third party’s intellectual property), therefore their contracts will be centred around lowering their risk in relation to this. This, in turn, ties in the intellectual property clear title requirements of developers because they need to ensure they own or have proper licensing arrangements in place for any intellectual property that features in their game and that this is the case with any subcontractors who work on the game. In this way, the developer should seek to flow-on the risk to the relevant parties. Publishers, when distributing games also have to contract with consumers so will have legal considerations and contracts to put in place to govern those relationships as well.

Are there any ways you think copyright law can be improved to suit your practical experience?

I think copyright legislation can certainly be simplified to make it more accessible to the layperson. It’s worth noting though that copyright law is regularly being reviewed to see how it can be improved. Sometimes that can be challenging because copyright law also has to balance the interests of a variety of parties which may not always be aligned, so, for instance,
what is an improvement in the law for an author of a work may not be the case for an online platform if it, for instance, makes their business unworkable. In the end, these competing interests need to find a happy medium and the law is always striving to strike that balance.

How does Australian Consumer Law influence the video game industry?

Australian consumer law grants consumers a number of rights which are applicable to the video game industry given that they sell games to consumers, this also applies to online platforms to sell games to consumers. These rights are in excess to what you will find in some other countries, such as in areas such as refunds. So it’s imperative that businesses comply with those obligations and the ACCC has taken businesses to task in the past to ensure compliance.

How has the change of technology (the way we consume video games on mobiles etc.) affected the law around it?

As games become more technologically advanced and as society becomes more interconnected online there are inevitable legal ramifications and the ensuing need to update the law to keep abreast of those changes.

Games have come a long way since the days of playing PAC-MAN on an Atari console in the 1980s. Take, for instance, an AR game today that scans your room and your face, there are interactions with a privacy law that come into play. If you play a mobile game where you capture virtual creatures in the real world, you may find yourself interacting with property law issues such as trespass. As VR worlds grow in complexity, we have to also consider the ability for crimes to be committed in those worlds, and so criminal law can come into play.

These are all considerations that will have to be taken into account by those who draft the law. As it stands, the law trails technology by a number of years given that laws have to be drafted and enacted. Those doing the drafting have to have a solid understanding of new technologies in order for the laws to have a proper effect and avoid having unintended consequences. It is also a costly and time-consuming process for many companies to adapt their systems and ways of working to new legal frameworks, so care must be taken in drafting.

Image Credit: Headshot provided by Kris Kotwiki, banner designed by Caiti Galwey and Delinna Ding

Stock photos obtained from pexel.com

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