Amerikanisches Recht (I): Copyright

In der ersten Folge unserer kleinen Serie über amerikanisches Recht berichtet Sean Kane von der New Yorker Kanzlei Drakeford & Kane über Copyright. Das amerikanische Copyright unterscheidet sich schon von den theoretischen Grundlagen her in verschiedener Hinsicht vom deutschen Konzept des Urheberrechts, vor allem ist es übertragbar. Man kann zudem durch eine Eintragung erweiterten Schutz erlangen. Schließlich wird auch ein Verstoß in manchen Fällen teurer.

Genug der Vorrede, ich übergebe das Wort an Sean Kane:

Follow up:

Initially I wanted to thank Dr. Lober for the distinct honor of inviting me to prepare the following guest posting about some of the legal issues that are inherent in doing business in the United States. Therefore this posting will summarize some of the main US legal concerns that a video game developer or publisher should be aware of. It will delve into topics including intellectual property rights, protections and damages, as well as licensing agreements and children’s privacy issues. An in-depth discussion of the full panoply, scope and varied United States intellectual property rights involved in the production or publishing of a video game (e.g. trademarks, copyrights, patents, etc.) is well beyond the limited scope of this piece. In fact it could fill an entire book (a statement I am well qualified to make as I am currently writing such a book). That being said, having at least a basic understanding of the inherent legal issues of working in the video game industry can not be overstated. For our purposes, it will suffice to say that the vast majority of the content created in the development of a video game is protected by copyright, as is the completed game.

COPYRIGHT

Copyright is one of the most simple intellectual property rights to invoke and seek protections under. Copyright in a work exists from the moment that it is set down in a “tangible form” (which includes software). Moreover, in order to file for federal copyright protection a creator of a work merely files a form with the Library of Congress and pays a small fee ($45). Under U.S. law ownership of a copyrighted work vests initially in the hands of its creator, which would be the individual artist or programmer who created the design sketch, piece of code or other protectable content at issue. This default rule potentially puts a game development company in a difficult position from the outset as it vests the rights to all of the separate parts of a game in each of the individual members of the creative team. As this could give any one member of the creative team the ability to hamper release of the game by forbidding the use of their contribution, a game developer must find a way to extract these rights from their creative team across the board. Usually a game developer preempts this problem by arguing that any creation by its employees is a “work-for-hire” and by including specific “work-for-hire” language in any employment or similar contract. Moreover, this or similar language will specifically state that, to the extent that any rights in the work created by the employee does not automatically vest in the video game company by nature of the employment as a “work-for-hire” the employee is actively agreeing to transfer all such rights as part of the agreement. In this way the video game company collects and retains the copyright to all of the content created for a game. The law in the United States differs from similar law in Europe in that we do not have any non-transferable “moral rights”.

Needless to say, infringing on the intellectual property of others should also be avoided. While some commonality between works may be allowed, such as scènes à faire, which are elements that are mandated for works of a certain type (e.g. hidden gadgets in spy stories) borrowing protected portions of protected works will result in liability for intellectual property infringement. The elements of infringement vary greatly by their application in different mediums and jurisdictions, however, there are common penalties to which a video game company may be subject to should they be found to have infringed on the IP rights of others. For starters, an adjudication that a video game infringes on the intellectual property rights of another work could result in an injunction preventing release of the game, or if the game has already been released, in the impound and destruction of all unsold copies. The copyright owner bringing the suit may also seek any of a number of different types of monetary damages. Under federal law, a copyright owner may elect to receive damages from the infringing video game company in an amount equal to $150,000 per copyrighted work infringed. Alternatively, the copyright owner may recoup any actual and demonstrable damages suffered as a result of the infringement as well as any profits which the infringer collected from sale of an infringing game. Should the court find that the video game company infringed the copyright owner’s protected work with knowledge that they were doing so, the court may also award “treble damages” which triple the damages recoverable by the copyright holder for actual harm suffered and infringer’s profits.

Of course, threats to the copyrights and other intellectual property of a video game company can also come from parties with whom the company has never dealt. It is also important for a video game company, just like any other media company, to be ever vigilant for possible infringement of their intellectual property by other companies and private individuals. Where it is believed that another party may be infringing on the game company’s intellectual property, the game company should gather information regarding the third party’s potential infringement and consult with an attorney to determine the proper response. Efforts should be made to research potential infringements and steps taken to prevent confirmed infringement to the greatest degree possible, even in those instances in which the copying appears minor or trifling. Under the equitable doctrine of laches, a company which fails to enforce their intellectual property rights to the exclusion of infringers may lose the ability to enforce those rights against more serious infringers in the future, effectively nullifying any protection provided by existing intellectual property law.

Kontakt mit Sean Kane kann telefonisch (001 - 212 - 696-0010) oder per Mail aufgenommen werden. Er veröffentlicht regelmäßig auf seiner Webseite Virtualjudgement.com.