2. IP Jiu-jitsu: a self-defence class for developers
Vincent Scheurer
Sarassin LLP
London
© Sarassin LLP 2006

3. Introduction Speaker Games industry legal consultant based in London
Industry experience since 1997

4. Disclaimer!
This is not legal advice

5. Purpose of this lecture
Self defence …
… against accidental infringement
Four parts:
Introduction to IP rights in games
Consequences of infringement
Common examples in the games industry
Practical steps: the moves
Questions

6. So why is this important?
Rising costs of development, particularly for next-gen projects
Increased stakes mean increased risks
Risks are transferred to developers
Developers (and their insurers) are keen to mitigate those risks as much as possible

7. Part 1: IP rights Copyright Trade marks Patents
Confidential information
Miscellaneous

8. Copyright Protects creative works
Allows the author of a work (such as a computer program) to stop other people from copying or distributing her work to the public

9. Trade marks
Protect brand names and logos (and their associated reputations)
Allow the owner of a trade mark (such as a logo or brand name) to stop other people from trading under his trade mark

10. Patents Protect inventions (such as the electric light bulb)
Allow an inventor to monopolise a new invention (such as the electric light bulb) for a limited period of time

11. Confidential information
Protects trade secrets (such as technology processes and customer lists)
Allows one person to stop others from using his trade secrets (including ideas)
Not strictly an “IP Right”

12. Miscellaneous
Design rights, moral rights, personality rights, publicity rights, privacy rights, authors’ rights, passing off, unfair competition …
Different countries, different laws

13. Part 2: Consequences IP rights are “property”
Western society is based on the respect for property:
“that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe” (Blackstone, 1763)
No defence of accident or good faith

14. In practical terms: Damages Punitive damages Profits Product recall
Landfill in Nevada
Criminal liability
Seizure of equipment

15. Part 3: Common examples Former employers Real world Open source
Accident
Weak content partner

16. Example 1 Rights belonging to a former employer Usually code
Could include confidential information

17. Example 2
Deliberate (but unauthorised) use of a feature of the real world
Buildings
Cars or other vehicles
Weapons
People
Advertising hoardings

18. Example 3
Open source
Breach of open source agreement by developer or publisher

19. Example 4
Accident
Trade marks
Real names
Patents

20. Example 5
Weak content partner
Outsourcing company
Middleware

21. Part 4: The moves
Offence
Defence

22. Moves: offence Know the rules, the consequences and the examples
Train all staff
Staff should have a complete, coherent overview
Create internal sign-off system
Single, named contact with responsibility for all external content

23. Moves: offence (continued)
Investigate all content providers
Credit
Internal training and clearance processes
Experience
Insurance

24. Moves: offence (continued)
Allocate risk properly in all contracts
Warranties
Indemnities
Limitations of liability (including “as is” disclaimers)
Applies to:
Publishing agreements
Middleware agreements
Outsourcing / subcontractor agreements

25. Moves: offence (continued)
Search the web
Trade mark and registered design databases
Google
Character names
Worlds
Weapons
Gamasutra and other news outlets

26. Moves: offence (continued)
Keep dated records
Concepts, design documents, code, assets – everything
Contracts

27. Moves: offence (continued)
Sanity check a completed game
Separate person
Works with publisher’s clearance processes

28. Moves: offence (continued)
Hollywood disclaimer: any similarity between persons living or dead and characters in this game is entirely coincidental
Use NDAs to protect your own position
Create written policy of all “dos and don’ts”
Insure

29. Moves: defence
Take particular care in high risk areas (sports, movies and the real world in general)
Don’t copy or use (or come close to copying or using) known logos, people, music or scenarios unless this is formally approved
Don’t use a former employer’s code or trade secrets

30. Moves: defence (continued)
Don’t use ideas volunteered by the public
Don’t suggest specific sources of inspiration

31. Moves: defence (continued)
Don’t sign onerous third party NDAs unless absolutely necessary
Don’t sign submission agreements unless absolutely necessary
Don’t use ideas that are the subject of known disputes (e.g. gameplay ideas covered by existing patent litigation)

32. Principal project stages
Project start: identify main risk areas
Project duration: apply offence and defence moves
Project completion: independent verification
Post completion: review the above as part of ordinary post mortem

33. Principal employment stages
Start: communicate rules as part of induction process
First six months: IP course
Every twelve months: IP refresher
Every appraisal: two-way discussion on the application of self defence moves by both the company and the employee

34. Thank you
(and please complete a feedback form)