1. Managing Copyright Issues in Videogames and Virtual Worlds Sean F. Kane Drakeford & Kane LLC 475 Park Avenue South, 19 th Floor New York, New York 10016 Tel: (212) 696-0010 Fax: (212) 696-0070 Email: skane@drakefordkane.com

2. 2 My 411 Lawyer for Game Developers & Publishers Lawyer for Game Developers & Publishers Prior to that… IP lawyer Prior to that… IP lawyer –Copyright, trademark, advertising, etc. –Transactional & litigation

3. 3 Mandatory Waffle Slide Yes, I work for various game companies, but I’m not here representing them Yes, I work for various game companies, but I’m not here representing them –My observations & advice are purely my own –If I represent any of you in the future I will be happy to believe anything you believe And now, on with the show… And now, on with the show…

4. 4 Goals of the Presentation Provide concrete Copyright legal information and perspectives from game developer & publisher perspective Provide concrete Copyright legal information and perspectives from game developer & publisher perspective Leave time for questions Leave time for questions Not to SUCK Not to SUCK

5. 5 Evolution of Videogames

6. 6 Evolution of Virtual Worlds

7. 7 Copyright © Introduction Simple to invoke protection Simple to invoke protection Copyright protection is long Copyright protection is long Penalties for violations are severe Penalties for violations are severe

8. 8 Copyright © Simple to Invoke Protection extends to “original works of authorship” that are “fixed in any tangible medium of expression.” – code, games, books, movies, songs Protection extends to “original works of authorship” that are “fixed in any tangible medium of expression.” – code, games, books, movies, songs Copyright protection vests at the creation of the work Copyright protection vests at the creation of the work Basic federal registration is extremely cheap – $45 Basic federal registration is extremely cheap – $45

9. 9 Copyright © Simple to Invoke Registration of a claim to copyright is advisable and provides advantages but it is not a prerequisite to protection Registration of a claim to copyright is advisable and provides advantages but it is not a prerequisite to protection The use of the © symbol is not required on works created after 1989 The use of the © symbol is not required on works created after 1989

10. 10 Copyright © Protection is Long Copyright protection provides an author an exclusive right to exploit their works Copyright protection provides an author an exclusive right to exploit their works Protection for works being created currently lasts for the life of the author plus seventy years. However, if the work is pseudonymous, anonymous or made for hire, protection extends for ninety-five years from first publication or 120 years from its creation, whichever is sooner Protection for works being created currently lasts for the life of the author plus seventy years. However, if the work is pseudonymous, anonymous or made for hire, protection extends for ninety-five years from first publication or 120 years from its creation, whichever is sooner

11. 11 Copyright © Protection is Long In short, 95 years after publication of the work or 120 years after creation of the work In short, 95 years after publication of the work or 120 years after creation of the work Copyright law has changed several times and protections vary internationally Copyright law has changed several times and protections vary internationally

12. 12 Copyright © Protection is Long The categories of protected works include the following: Literary works, including books, magazines, newspapers and computer programs Literary works, including books, magazines, newspapers and computer programs Musical works Musical works Dramatic works Dramatic works Pantomimes and choreographic works Pantomimes and choreographic works Pictorial, graphic and sculptural works Pictorial, graphic and sculptural works Motion picture and other audiovisual works Motion picture and other audiovisual works Sound recordings and Sound recordings and Architectural works Architectural works

13. 13 Copyright © Protection is Long A derivative work is “a work based upon one or more preexisting works” A derivative work is “a work based upon one or more preexisting works” Derivative works can be copyrightable if they meet a “minimal creativity” standard Derivative works can be copyrightable if they meet a “minimal creativity” standard

14. 14 Copyright © Penalties are Severe Willful infringement may carry a statutory fine of up to $150,000 per work Willful infringement may carry a statutory fine of up to $150,000 per work Criminal charges are also available Criminal charges are also available

15. 15 Copyright © Severe Criminal Penalties

16. 16 Copyright © A Typical Virtual World Scene

17. 17 Copyright © What Do We See Here? Online advertising Online advertising NPCs and admins NPCs and admins Player avatars Player avatars Online chat Online chat Online item sales Online item sales And a whole game world… And a whole game world…

18. 18 Copyright © Virtual World Residents

19. 19 Although In Reality…

20. 20 Copyright © User Created Content Where there is UCC there will be infringement, intentional or otherwise Where there is UCC there will be infringement, intentional or otherwise DMCA provides safe harbor for ISP as long as takedown procedures are in place DMCA provides safe harbor for ISP as long as takedown procedures are in place Virtual World as ISP is not clear Virtual World as ISP is not clear

21. 21 Copyright © Public Domain What is public domain is a difficult question What is public domain is a difficult question Speak to an attorney first!!!!! Speak to an attorney first!!!!! Generally, the following are usable - classic plays (Shakespeare – Arden Project), mythology (God of War, Rome Rising, etc.), historical events (Company of Heroes) Generally, the following are usable - classic plays (Shakespeare – Arden Project), mythology (God of War, Rome Rising, etc.), historical events (Company of Heroes)

22. 22 Copyright © “Fair Use” Doctrine of “fair use” creates a limited right to utilize copyrighted material without the owners consent Doctrine of “fair use” creates a limited right to utilize copyrighted material without the owners consent –noncommercial or for nonprofit educational purposes –nature of the copyrighted works –amount used in relation to the copyrighted work –effect of the use on the potential market or value of the copyrighted material

23. 23 Copyright © The Architectural Works Copyright Protection Act of 1990 Prior to the act protection was only for drawings and specifications Prior to the act protection was only for drawings and specifications Two distinct rights Two distinct rights –design embodied in the drawings or building as “architectural work” – drawings themselves as “graphic” or “pictorial” works interior design is included in the interior design is included in the definition of “building”

24. 24 Copyright © Vessel Hull Design Protection Act of 1998 Unique vessel hull design can be protected for 10 years from date made public Unique vessel hull design can be protected for 10 years from date made public

25. 25 Copyright © Infringement Micro Star v. FormGen, Inc., “Duke Nukem” marketed by FormGen, Inc. included a utility that allowed players to create their own levels. “Duke Nukem” marketed by FormGen, Inc. included a utility that allowed players to create their own levels. -Micro Star downloaded and offered 300 user generated levels for sale; -9 th Circuit opined that player created levels were derivative works and property of FormGen, Inc.

26. 26 Copyright © Internationally ■There is no “international copyright.” ■Protection against unauthorized use in a particular country depends on the laws of that country. ■However, most countries do offer protection to foreign works under certain conditions.

27. 27 Copyright © Can You Afford to Infringe Litigation is expensive and uncertain Litigation is expensive and uncertain –$500,000 to $1,500,000 for Copyright Litigation –May take 2 to 5 years for trial and appeals depending on complexity of case

28. 28 Copyright © Summary (Gross Oversimplification) CoverageSignificant Length For 95 to 125 Years Registration Should obtain, but not required UseSignificant Cost Extremely low Easy to obtain Extremely easy

29. 29 Presentation Goals Redux Understanding Copyright is critical to the success of any Developer or Producer. Understanding Copyright is critical to the success of any Developer or Producer. Protect your rights and respect the rights of others. Protect your rights and respect the rights of others. Copyright vigilance is much cheaper than litigation. Copyright vigilance is much cheaper than litigation.

30. 30 Thank You Sean F. Kane, Esq. Drakeford & Kane, LLC 475 Park Avenue South, 19 th Floor New York, New York 10016 Tel: (212) 696-0010 Fax: (212) 696-0070 Email: skane@drakefordkane.com