Meeting wrap-up September 9, 2002
Intellectual Property Panel Discussion
Pictorial
About 52 people attended the September meeting which took place on the 10th floor of the Art Institute.
After brief introductions of everyone, we had a great panel discussion about Intellectual Property, focusing on games. The panelists were:
Meeting Audio: The audio from this meeting available in two parts. You will need to have Shockwave installed to listen
Part 1
Part 2
Our next meeting will again be mini-discussions. The specific topics will be determined on-site. It will be help Monday October 7th.
The following are the meeting notes cleaned up and compiled by Brian Robbins. In many cases, they are combinations of multiple answers and streams of conversation. This should be used to give you an idea of how the law works, but you should ALWAYS talk to a lawyer about your specific situation and questions. DO NOT use this as a 100% accurate legal guide.
You can also read the unmodified raw notes from the meeting.
Intro:
There are 5 areas of Intellectual Property: Trade Secrets, Copyrights, Trademarks, Right of Publicity, and Patents
Trade Secrets:
On a high level, it is something that is maintained in secret and provides an advantage to your company. These are VERY BROAD. Broadest area in IP. NDA, Employment Agreements protect this. Trade Secrets can last for as long as it remains a secret.
Copyrights:
Must have expression in tangible form, magnetic or optical form does count. To copyright code, you disclose first and last few pages. They last 90 years if registered by a corporation or life +70 years for individuals.
Trademarks:
Trademarks are protected by using the term in commerce. They give you your right to use it, and your right to keep others from using it. They never expire as long as they are continuously used. You can search Patents at uspto.gov look at category you are dealing with. Class 9 hardware/software or services (38,42)
Patents:
Patents are different because you have no rights unless you file and register it, unlight Copyrights and Trademarks. Once you have a patent, you have the exclusive rights to use that idea for 20 years from date of filing application. You can search Patents at uspto.gov.
Remember that having IP does not grant you the right to produce anything. If you make a derivative game, you still may not be able to produce it, even if you have a copyright, patent, etc. as it may still be infringing on other IP.
I've made a game where blocks fall and I call it Tetris, what will happen to me?
Maybe nothing. You would need to do research - is that copyrighted, is the name trademarked, do they have patents? The bottom-line is, if you are riding on coattails you always have potential problem. However, if you wrote the code all on your own, you are probably okay, unless they have a patent. A patent protects an idea, and if you have patent it implies that it is unique and that nobody thought of it before. This is different from a copyright which is expression of an idea.
If you are small Patents can be prohibitively expensive. When is it worthwhile to get a Patent?
If you don't plan on making money from the patent, then it doesn't make sense to get it. If you are not willing to file an infringement lawsuit, which takes large money resources, then it doesn't make sense.
What do you do if a big company comes after you for IP infringement?
Most of the time, you are out of business, and they usually know that. It usually costs around $5 Million to sue or defend a Patent case. If you are small enough to be under the radar, they probably won't mess with you, and usually they don't want to mess with you until you make money.
Can the corporate veil be broken?
You should become and LLC so that if the business entity gets damages you don't personally get damages. As long as you maintain the corporate structure (board meetings, etc) and document those processes, they should not be able to break the corporate veil.
If you register a Federal Trademark, what protection does that give against foreigners?
Federal registration will not protect you outside of the US, EU has one, each country has its own system.
How do you create a product line such as Championship X?
It's all about use, and the likelihood of confusion. As the use of games proliferates, they become synonomous with your company, and as such create a stronger trademark. For unregistered Trademarks you should put a TM next to it. Once it is registered you should put a ®
What should be the copyright that I put on my games and cartoons? What about year?
Everything you publish, you should but © copyright YEAR, owner. Put people on notice that it is copyrighted, if it is updated, you should put year-year.
Should I go 97-2002 if it is not updated in 2002?
No, you only copyright for a particular time, if it is modified then you should update it because it is a separate work with the date range.
What about All Rights Reserved?
This comes from a South American treaty, which says you cannot protect unless you put that down. These days it doesn't make much difference, but why not?
What if you want to get permission?
First step is who are the rights holder? Who claims it? Research rights to make sure that people own it. eg. Go Fish has been around for a long time, so any patent that may have been filed has expired. Scrabble was patented in 54, so the game idea is available. However, you cannot just make Scrabble, because you would still be infringing on Copyright and/or Trademarks. Rules are not protectable, in most cases. If you use a different name, you shouldn't have a copyright issue either, however you may still have a Patent issue.
If you write code, and company dissolves, what issues are there for using that code?
The way most things work now, if you are an employee, anything that is copyrightable is owned by the ompany. If you are a contractor, it is yours unless assigned to them. In most cases you can however re-write the code on your own. Companies really can't keep you from using anything in your head. Don't leave with your laptop full of source-code though :). Beyond that it goes down to individual state law.
If company no longer exists?
Talk to a bankruptcy lawyer to see who owns the assets of the company.
How can you make a game without copying someone's game mechanic?
Fairy Tale example. You can have one kind of fairy tale that is same type of tale over and over again. You can never be truly sure that there isn't something there, however if you are creating it on your own, you are PROBABLY okay. Don't get too hung up on this stuff. If it doesn't look or work like someone else's stuff, then your risk is very low. You will always take risks on company side, or client side regardless. You should understand the risks that you are taking. Don't get too paranoid, but don't give everything away either, you should find a middle ground that you are comfortable with.
What about parody, how close to the line can you get?
Make sure that it is a parody, not a satire. Parody is when you are making fun of the original. Satire is making fun of something else in the same manner. Parody is a fair-use exemption to copyright. ie you can't use Mickey Mouse to make fun of something, however you can change Mickey to make fun of him (although Disney will probably still come after you :) The first ammendment protects your right to comment about things, but not how far you can go. Commercial speech is not as protected. eg Using parody of Mickey Mouse to make fun of something Disney did, vs. using it to sell your software.
What about 'dumb' patents like the recent British Telecom patent on hyperlinks?
When you enforce a patent, go after weak people, or go after strong, or everyone, etc. In most circumstances you are probably under radar. Once you are aware of a patent, you can suffer from treble damages, and lawyer's fees. For a silly one like British Telecom wait until someone else takes care of it.
A lot of games let users bring content into the game. Where is your liability for the users?
A concept called contributory infringement may apply. Do you let them insert content without restrictions? You may also fall into the ISP type provision for the DMCA. This might limit your liability. If someone is doing something wrong on your network, you will usually get a letter about it, and you assess and then decide to act based on that.
Pictorial
Attendees listening to the panelists
Jason listening to a question
The four panelists, Thomas Frey, Ben Oelsner, Thomas Franklin, and Jason Haislmaier
The discussion immediately following the panel
More post panel discussion
Thomas Franklin responding to a question
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