Managing Copyright Issues in Videogames and Virtual Worlds Sean F. Kane Drakeford & Kane LLC 475...
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Managing Copyright Issues Managing Copyright Issues in Videogames and Virtual in Videogames and Virtual Worlds Worlds Sean F. Kane Sean F. Kane Drakeford & Kane LLC Drakeford & Kane LLC 475 Park Avenue South, 19 475 Park Avenue South, 19 th th Floor Floor New York, New York 10016 New York, New York 10016 Tel: (212) 696-0010 Tel: (212) 696-0010 Fax: (212) 696-0070 Fax: (212) 696-0070 Email: [email protected] Email: [email protected]
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Transcript of Managing Copyright Issues in Videogames and Virtual Worlds Sean F. Kane Drakeford & Kane LLC 475...
Managing Copyright Issues in Managing Copyright Issues in Videogames and Virtual WorldsVideogames and Virtual Worlds
Sean F. Kane Sean F. Kane Drakeford & Kane LLCDrakeford & Kane LLC
475 Park Avenue South, 19475 Park Avenue South, 19thth Floor FloorNew York, New York 10016New York, New York 10016
Tel: (212) 696-0010Tel: (212) 696-0010Fax: (212) 696-0070Fax: (212) 696-0070
Email: [email protected]: [email protected]
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My 411My 411
Lawyer for Game Developers Lawyer for Game Developers & Publishers& Publishers
Prior to that… IP lawyerPrior to that… IP lawyer– Copyright, trademark, Copyright, trademark,
advertising, etc.advertising, etc.– Transactional & litigationTransactional & litigation
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Mandatory Waffle SlideMandatory Waffle Slide
Yes, I work for various game companies, Yes, I work for various game companies, but I’m not here representing thembut I’m not here representing them
– My observations & advice are purely my ownMy observations & advice are purely my own– If I represent any of you in the future I will be If I represent any of you in the future I will be
happy to believe anything you believehappy to believe anything you believe
And now, on with the show…And now, on with the show…
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Goals of the PresentationGoals of the Presentation
Provide concrete Copyright legal Provide concrete Copyright legal information and perspectives from game information and perspectives from game developer & publisher perspectivedeveloper & publisher perspective
Leave time for questionsLeave time for questions
Not to SUCK Not to SUCK
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Evolution of VideogamesEvolution of Videogames
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Evolution of Virtual WorldsEvolution of Virtual Worlds
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Copyright Copyright ©©IntroductionIntroduction
Simple to invoke protectionSimple to invoke protection
Copyright protection is longCopyright protection is long
Penalties for violations are severePenalties for violations are severe
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Copyright Copyright ©©Simple to Invoke Simple to Invoke
Protection extends to “original works of Protection extends to “original works of authorship” that are “fixed in any tangible authorship” that are “fixed in any tangible medium of expression .” – code, games, books, medium of expression .” – code, games, books, movies, songsmovies, songs
Copyright protection vests at the creation of the Copyright protection vests at the creation of the workwork
Basic federal registration is extremely cheap – Basic federal registration is extremely cheap – $45$45
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Copyright Copyright ©© Simple to Invoke Simple to Invoke
Registration of a claim to copyright is Registration of a claim to copyright is advisable and provides advantages but it is advisable and provides advantages but it is not a prerequisite to protection not a prerequisite to protection
The use of the © symbol is not required on The use of the © symbol is not required on works created after 1989 works created after 1989
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Copyright Copyright ©©Protection is LongProtection is Long
Copyright protection provides an author an Copyright protection provides an author an exclusive right to exploit their worksexclusive right to exploit their works
Protection for works being created currently lasts Protection for works being created currently lasts for the life of the author plus seventy years. for the life of the author plus seventy years. However, if the work is pseudonymous, However, if the work is pseudonymous, anonymous or made for hire, protection extends anonymous or made for hire, protection extends for ninety-five years from first publication or for ninety-five years from first publication or 120 years from its creation, whichever is sooner 120 years from its creation, whichever is sooner
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Copyright Copyright ©©Protection is LongProtection is Long
In short, 95 years after publication of the In short, 95 years after publication of the work or 120 years after creation of the work or 120 years after creation of the workwork
Copyright law has changed several times Copyright law has changed several times and protections vary internationallyand protections vary internationally
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Copyright Copyright © © Protection is LongProtection is Long
The categories of protected works include the following:The categories of protected works include the following:
Literary works, including books, magazines, newspapers Literary works, including books, magazines, newspapers and computer programsand computer programs
Musical worksMusical works Dramatic worksDramatic works Pantomimes and choreographic worksPantomimes and choreographic works Pictorial, graphic and sculptural worksPictorial, graphic and sculptural works Motion picture and other audiovisual worksMotion picture and other audiovisual works Sound recordings andSound recordings and Architectural works Architectural works
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Copyright Copyright ©© Protection is Long Protection is Long
A derivative work is “a work based upon A derivative work is “a work based upon one or more preexisting works”one or more preexisting works”
Derivative works can be copyrightable if Derivative works can be copyrightable if they meet a “minimal creativity” standard they meet a “minimal creativity” standard
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Copyright Copyright ©©Penalties are SeverePenalties are Severe
Willful infringement may carry a statutory Willful infringement may carry a statutory fine of up to $150,000 per workfine of up to $150,000 per work
Criminal charges are also availableCriminal charges are also available
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Copyright Copyright ©©Severe Severe Criminal PenaltiesCriminal Penalties
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Copyright Copyright ©© A Typical Virtual World SceneA Typical Virtual World Scene
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Copyright Copyright ©© What Do We See Here?What Do We See Here?
Online advertisingOnline advertising NPCs and adminsNPCs and admins Player avatarsPlayer avatars Online chatOnline chat Online item salesOnline item sales And a whole game And a whole game
world…world…
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Copyright Copyright ©©Virtual World ResidentsVirtual World Residents
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Although In Reality…Although In Reality…
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Copyright Copyright ©©User Created ContentUser Created Content
Where there is UCC there will be Where there is UCC there will be infringement, intentional or infringement, intentional or otherwiseotherwise
DMCA provides safe harbor for DMCA provides safe harbor for ISP as long as takedown ISP as long as takedown procedures are in placeprocedures are in place
Virtual World as ISP is not clearVirtual World as ISP is not clear
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Copyright Copyright ©©Public DomainPublic Domain
What is public domain is a difficult What is public domain is a difficult questionquestion
Speak to an attorney first!!!!!Speak to an attorney first!!!!!
Generally, the following are usable - Generally, the following are usable - classic plays (Shakespeare – Arden classic plays (Shakespeare – Arden Project), mythology (God of War, Project), mythology (God of War, Rome Rising, etc.), historical events Rome Rising, etc.), historical events (Company of Heroes)(Company of Heroes)
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Copyright Copyright ©©“Fair Use”“Fair Use”
Doctrine of “fair use” creates a limited right to Doctrine of “fair use” creates a limited right to utilize copyrighted material without the owners utilize copyrighted material without the owners consent consent – noncommercial or for nonprofit educational purposesnoncommercial or for nonprofit educational purposes
– nature of the copyrighted works nature of the copyrighted works
– amount used in relation to the copyrighted workamount used in relation to the copyrighted work
– effect of the use on the potential market or value of effect of the use on the potential market or value of the copyrighted materialthe copyrighted material
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Copyright Copyright ©©The Architectural WorksThe Architectural Works
Copyright Protection Act of 1990Copyright Protection Act of 1990 Prior to the act protection was only for Prior to the act protection was only for drawings and drawings and
specificationsspecifications
Two distinct rights Two distinct rights – design embodied in the drawings or building as design embodied in the drawings or building as
“architectural work”“architectural work”– drawings themselves as “graphic” or “pictorial” drawings themselves as “graphic” or “pictorial”
worksworks
interior design is included in the interior design is included in the
definition of “building”definition of “building”
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Copyright Copyright ©©Vessel Hull Design Protection Act of 1998Vessel Hull Design Protection Act of 1998
Unique vessel hull design can be protected for Unique vessel hull design can be protected for 10 years from date made public10 years from date made public
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Copyright Copyright ©© Infringement Infringement Micro Star v. FormGen, Inc., Micro Star v. FormGen, Inc.,
““Duke Nukem” marketed by FormGen, Inc. included Duke Nukem” marketed by FormGen, Inc. included a utility that allowed players to create their own a utility that allowed players to create their own levels. levels.
-- Micro Star downloaded and offered 300 Micro Star downloaded and offered 300 user generated levels for sale; user generated levels for sale;
-- 99thth Circuit opined that player Circuit opined that player created levels were derivative created levels were derivative works and property of works and property of FormGen, Inc.FormGen, Inc.
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Copyright Copyright ©© Internationally Internationally
■■ There is no “international copyright.”There is no “international copyright.”
■■ Protection against unauthorized use in a Protection against unauthorized use in a particular country depends on the laws of that particular country depends on the laws of that country. country.
■■ However, most countries do offer protection to However, most countries do offer protection to foreign works under certain conditions. foreign works under certain conditions.
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Copyright Copyright ©©Can You Afford to InfringeCan You Afford to Infringe
Litigation is expensive and uncertainLitigation is expensive and uncertain
– $500,000 to $1,500,000 for Copyright $500,000 to $1,500,000 for Copyright LitigationLitigation
– May take 2 to 5 years for trial and May take 2 to 5 years for trial and appeals depending on complexity of appeals depending on complexity of casecase
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Copyright Copyright ©© Summary Summary (Gross Oversimplification) (Gross Oversimplification)
CoverageCoverage SignificantSignificant
LengthLength For 95 to 125 YearsFor 95 to 125 Years
RegistrationRegistration Should obtain, but not requiredShould obtain, but not required
UseUse SignificantSignificant
Cost Cost Extremely lowExtremely low
Easy to obtainEasy to obtain Extremely easyExtremely easy
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Presentation Goals ReduxPresentation Goals Redux
Understanding Copyright is Understanding Copyright is critical to the success of any critical to the success of any Developer or Producer.Developer or Producer.
Protect your rights and Protect your rights and respect the rights of others.respect the rights of others.
Copyright vigilance is much Copyright vigilance is much cheaper than litigation. cheaper than litigation.
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Thank YouThank You
Sean F. Kane, Esq.Sean F. Kane, Esq.
Drakeford & Kane, LLCDrakeford & Kane, LLC475 Park Avenue South, 19475 Park Avenue South, 19thth Floor Floor
New York, New York 10016New York, New York 10016Tel: (212) 696-0010Tel: (212) 696-0010Fax: (212) 696-0070Fax: (212) 696-0070
Email: [email protected]: [email protected]
