newtech.law - legal aspects of new technologies

Contracts for publication of video games are concluded between game developers and companies specialising in publishing games (sometimes referred to “dev-publisher agreements”).

Just a few years ago, the word in the
video game industry was that the role of publishers in the process of
commercialising new games was on the way out, and the future of the industry
was in self-publishing of games by developers. But publishers have not gone
away, and still represent a hugely important element of the operation of the
entire industry. For game developers, contracts with publishers are one of
their key business relationships. The publisher typically provides not only
services and knowhow in marketing and distribution of games, but also serves as
a fundamental source for financing game development.

So as a developer, it is vital to consider the nature of cooperation with a publisher, and first and foremost what to pay attention to when negotiating the contract with the publisher.

Game jams, hackathons and competitions are
some of the methods for activating and engaging the game development community
(as demonstrated for example by the popularity of Poland’s nationwide online
game jam #zostanwdomurobgry, held
by the Indie Games Polska Foundation on 30 March – 6 April 2020 under the
aegis of the Ministry of Culture and National Heritage and the Ministry of
Science and Higher Education). Organising and promoting a competition is relatively
uncomplicated. There are benefits on both sides. The participants have an opportunity
to present their work, and the organiser gains access to a range of creative
proposals. But such competitions pose copyright challenges, as we discuss below.

Sometimes a video game’s title is one of the game development company’s most important assets. Properly selected, secured and promoted, it may constitute a valuable source of income for a long time. Therefore, at an early stage of work on the game, it is worth making an appropriate application to the register, bearing in mind that in the case of trademarks, the principle of “first come, first served” applies. A well-thought-out strategy for selecting and registering a video game title can also save a lot of nerves and money after the game is launched on the market.

Trademark clearance: How to check if a game title is registrable and can be used safely

Trademark clearance should precede not only an application for registration of a  game title as a trademark, but indeed the very choice of the intended title (even if the developer ultimately decides not to register it). Trademark clearance is research to determine whether the same or a  similar title has already been registered as a trademark or is being used by an entity from the same or a similar sector for identical or similar goods or services. This research is usually carried out using professional trademark databases.

In the video game sector it is often necessary to draw on specialised knowledge from various fields (e.g. for graphic design projects). In such cases, it is increasingly common to cooperate with external experts by outsourcing certain processes. This form of cooperation carries many advantages, but if the conditions are not carefully framed it can create serious risks for the game development company.

Is the creativity of video game developers limited by architects’ rights to the image of their buildings erected in public space?

Creators of video games often set the action of their games in spaces modelled on the real world or using well-known buildings and other structures existing in public space. Locations used in video games often gain popularity, and for many fans become a tourist destination in their own right (witness the growing interest in visiting Lower Silesia due to the popularity of The Vanishing of Ethan Carter).

Thus it is essential for creators and publishers of video games to determine whether the use of recognisable locations in games is limited in some way by the law, and if so, what requirements must be met to allow features of the built environment to be used in a game.

In recent months, perhaps more than ever, life has moved online. Some people spend their time reading e-books or playing video games. Can they later resell or exchange such “used” works? A recent ruling by the Court of Justice throws into doubt the secondary trading in digital goods.

Nederlands Uitgeversverbond v Tom Kabinet Internet BV (Case C‑263/18), judgment of the Court of Justice of 19 December 2019