Copyright 101 for Independent Game Developers

by Benjamin Delaney

If there is one sector of the entertainment industry that was not hit nearly as hard by the COVID-19 pandemic as others such as Hollywood and sports, it is video games. From blockbusters like Nintendo’s Animal Crossing: New Horizons and Sony’s The Last of Us: Part II, to independent games like Kinetic Games’ Phasmophobia, and Spiritfarer from Thunder Lotus Games, the video game industry has largely avoided the setbacks the pandemic has had on other entertainment industries1. While the major studios no doubt have their own legal teams to handle the legal aspects of game development, the independent developers might not. So, say you are an “indie dev”, trying to work on your passion project. More often than not, you will need to bring in other people to help with bringing your game to life. After all, we cannot all be Toby Fox, lone developer of Undertale. So, what are some of the legal principles underpinning the intellectual property rights that will protect your game?

Canada and the Copyright Act

In Canada, the Copyright Act ensures copyright protection for “every original literary, dramatic, musical and artistic work.”2 Generally speaking, video games can fall within a myriad of categories here. Many aspects of a video game, including the script, the score, or the computer code could all potentially be covered by separate copyright protection. However, video games could also be seen as a “compilation” under copyright law. Additionally, the Copyright Act3 sets out two distinct regimes of rights that apply to all works: copyright and moral rights. In this information sheet, we will only address the economic “copyright”, that is to say “the rights to produce, reproduce, perform and publish” the work or any substantial part thereof.

Copyright Ownership Part 1: General Overview

Let’s say you’re not Toby Fox, and you are not able to develop 100% of the game from start to finish. Now, let’s say you have an ambitious project that requires, among other things, a bold soundtrack to fit your artistic vision. If you are not a musician yourself, you likely will have to bring in outside help. Under the Copyright Act, in order to use a copyrighted song in a video game, a developer must have the right to use the song. In as simple terms as possible, these rights can either be acquired by transferring ownership of the copyright in the song to the developer (i.e. purchasing the song), or by licensing the right to use the song in the game. Similar principles apply to other copyrighted aspects of the game that a third party has created4. Contracts that have been carefully reviewed by a qualified lawyer can help to ensure all is in order5

Copyright Ownership Part 2: Copyright Assignments

Copyright assignment involves a transfer of ownership of the copyright. The applicable laws differ based on whether or not the creators of the copyrighted works are independent contractors or employees. For people employed by the developer, the developer, absent alternative agreements, owns the work created by the employee do in the course of their employment by default6 (i.e. even if the contract does not specifically mention this). This is not the case for independent contractors, who own what they create absent an agreement (although it is common for ownership of the copyright to transfer by contract)7. While the distinction between an employee and an independent contractor can often be nuanced, a key first question to ask is the following: is the work being done under the supervision and direction of the developing studio? If yes, then the artist is an employee. If not, the person is a collaborator that owns his or her contributions (absent anything in the contract) and a license or assignment of rights agreement will be required. 

Conclusion

All of this to say, independent video game developers should turn their minds to copyright, and intellectual property more generally. Ensuring everyone is on the same page about who owns which portions of the game well in advance can save a big headache down the road.

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Sources

  1. Wallace Witkowski, “Videogame’s are a bigger industry than movies and North American Sports combined, thanks to the pandemic” (2 January 2021), online: MarketWatch.
  2. Copyright Act, RSC 1985, c C-42, s 5(1).
  3. Supra note 2 au s 2.1(1). Voir Andy Ramos et al, “The Legal Status of Video Games: Comparative Analysis in National Approaches” (2013), online: World Intellectual Property Organization
  4. Ibid. Voir Susan H. Abramovitch, “Rules Of The Game (Part 1): Copyright Protection Of Video Games In Canada” (20 August 2018), online: Gowling WLG.
  5. Ibid.
  6. Supra note 2, au s 13(3).
  7. Supra note 5.