Licensing is when a copyright owner gives permission for someone else to do something normally restricted by copyright law. Copyright protects artistic and literary expression. It covers a broad variety of creative expression from email, to websites, to video games. Generally speaking, the underlying code of a video game is protected as a literary work, and the artwork and sound are protected as an audiovisual work. While the work (video game) does not have to be registered to be covered by copyright law, there are advantages to registration.
A copyright gives the creator ownership of the video game. As the legally recognized owner of the game, the owner can initiate licensing contracts to distribute and sell his own work. Licenses must be executed in compliance with various laws and drafted to ensure that the developer’s rights and interests are protected. Both video game companies and independent developers will need to safeguard their intellectual property through copyrights and licensing to prevent misuse of their product. A licensing agreement will contain provisions such as:
• The duration of the licensing agreement;
• How the product can be used;
• Prohibitions or restrictions regarding the use of the product;
• Warranties and liability clauses;
• Indemnification; and
• Sublicensing rights.
The Copyright Office has consistently believed that a single registration is sufficient to protect the copyright in a computer program and related screen displays, including video games, without a separate registration for the screen displays or a specific reference to them on the application for the computer program. The completed video games licenses are generally good for seven to ten years. Console licensing cannot be avoided. The publisher must pay a royalty to the console manufacturer for releasing a game on their system.
Who holds the copyright?
Generally, this can be a number of people: the author/creator, the author/creator’s relatives or next of kin, or someone else to whom the author/creator gave the rights. However, in the case of video games, usually the publisher (assuming the game is mass-produced) holds the copyright and, therefore, the licensing rights. The publisher retains the rights to decide where and how the game may be distributed, including in restaurants or stores.
What would constitute copyright infringement?
The End User Agreement can be terminated by the licensor, or by the user himself if he violates the terms agreed upon. Some EUA terms are enforceable, but only on a contract basis, so if violated, it is possible only fines will apply, and the user’s right to use the software will most likely be revoked. Some EUA terms may connect to copyright, so violation of those terms would constitute copyright infringement. It’s possible to go to jail for certain types of copyright infringement. Additional injunctions, costs, damages, and/or attorney’s fees might be applied. The Copyright Law of the United States, Chapter 5, discusses specific remedies for copyright infringement.
The terms and limitations of a video game’s usage can vary greatly depending on who owns the property. The copyright holders retain licensing rights, and they determine whether or not they want their video games to be displayed in establishments like restaurants and arcades. Their licensing agreement will outline the limitations on how the game can be used/played/displayed. If the licensing agreement is violated, then the user is subject to penalties having to do with both violation of contractual obligations, as well as copyright infringement. In order to legally display video games in restaurants, the owner must agree to and abide by the terms of the licensing contract.
By Dorisa Shahmirzai, Esq.