What Indie Developers Should Know About Copyright

If you’re a programmer, designer, composer, or artist, copyright is an important part for what you do. It’s always a good idea to know a few key facts about your jurisdiction’s Copyright Act.

Copyright protection begins from the moment you compile your final build. As the copyright holder of your product, you have the exclusive right to make, sell, and distribute copies of the game or its assets, publicly perform or display the game, make derivatives such as ports or remasters, and authorize others to do those things.

When you create a game, you are creating not one, but numerous copyrighted works. This includes the source code, game visual display, graphical assets, and sound recordings. According to the U.S. Copyright Office, game source code is usually registered under Literary Works, graphical assets under Visual Arts, soundtrack under Sound Recordings or Performing Arts, and the game as a whole as a Motion Picture. The Copyright Office defines each of following:

  • Literary works explain, describe, or narrate a particular subject, theme, or idea through the use of narrative, descriptive, or explanatory text, rather than dialog or dramatic action. Normally, they are intended to be read and not performed before an audience.
  • Works of visual arts include a wide variety of pictorial, graphic, and sculptural works, as well as architectural works. Examples include paintings, sculptures, photographs, and other types of works.
  • Sound Recordings are a result of a fixation of any musical, spoken, or other sounds but not including sounds accompanying a motion picture or other audiovisual work.
  • Motion Pictures are audiovisual works that consist of a series of related images which, when you show them in rapid succession, impart an impression of motion, along with accompanying sounds, if any.

If you’re a single developer doing everything, you would be considered the legal author of all source code, visual display, graphical assets, and sound recordings. Let’s take a look at a few examples:

  • The Chuhou Joutai games were developed by just one person. He did everything in his lonesome. As a result, the Prophet Driller is the author of all source code, designs, sound recordings, and graphical assets, and therefore owns the copyright. Do not forget that all of the above consists of separate copyrighted works.
  • The copyright between the source code, designs, graphical assets, and sound recordings could be owned separately. For example, if you authorize someone to write the soundtrack for your title, that person would own the rights to their compositions, unless you designate the work as a “work made for hire”. The person authorizing it would still own the rights to their underlying work. Because source code, designs, graphical assets, and sound recordings are all separate, they are subject to different rules and can be owned and licensed separately.
  • Another example includes a new Touhou Project fangame that is in preproduction. This new title, titled Touhou Meijinka ~ Song of Divine Tempest, involves the work of multiple persons. Drillimation Systems would own all source code and its soundtrack, Studio Emiko owns the characters created for the title, and Ethan would own all graphical assets.

Although video games are protected by copyright from the moment they are fixed, and if you live in the United States, we recommend registering with the U.S. Copyright Office. Even though it’s not mandatory, registering will create a public record of your ownership that will allow you to bring a copyright infringement case in federal court and seek certain types of monetary awards in that case.

To apply for registration, you will need to send in an application, a filing fee, and a copy of the game called a deposit. Depending on the type of game, you have several different application options. If it’s one game or set of assets you need to register, you can use the Standard Application. If it’s more than one game or set of assets, you may be eligible to register multiple works in under one application. The Copyright Office offers options for registering a group of unpublished works or a group of works published in a compilation. We recommend visiting the Copyright Office’s website at copyright.gov to see what is fit for you.

NOTE: This is for informational purposes only and does not constitute legal advice. Please consult an attorney if you need assistance.


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