Last Wednesday, I presented at Georgia Lawyers for the Arts in the King Plow Arts Center on a topic that discussed arts applications in games. Entitled, “Arts Applications In Computer and Video Games,” my presentation discussed what rises to the level of copyrightable content for artists, writers, and illustrators; what type of content developers seek for games; types of games currently on the market; types of employment agreements between independent contractors and game developers; and finally, the art of structuring a licensing agreement between an independent contractor and a game developer. It was an ambitious presentation, and one, that taught me about how to present material inasmuch as it taught the audience members about copyright protection and games.
I first discussed subject matter of copyright. Found under Section 102 of Title 17 of the United States Code (U.S.C.), subject matter includes, but is not limited to, literary works, pictorial and graphic works, and other audiovisual works. Games fall under other audiovisual works, as they consist of audio aspects (sound) and visual aspects (graphics). In addition, games fall under literary works, because the code that enables them to function finds tangible format in text, or source code. Thus, copyright is, “an original work of authorship fixed in a tangible medium,” as defined by U.S.C. However, just because the door is open, does not mean it crosses the proverbial threshold. Facts and ideas, for example, may not be copyrighted. In contrast, organizations of facts (except chronological and alphabetical, which are facts), and expressions of ideas, are copyrightable. Furthermore, the more detailed an expression of an idea, the more likely it will achieve copyright. Thus, a “kingdom far away,” is less likely to receive copyright protection than, “the Planet Zog, where the atmosphere is a curious mixture of coffee and cigarettes.” The same goes for characters as well as story settings. A homeless man is less likely to be protected than, “Tiberius, a homeless Greek, who bore facial tattoos and wore a gold bracelet, which bracelet he told everyone that he met gave him time-traveling powers.” The silver-lining to not being able to copyright facts, ideas, or works in the public domain, is that these items can provide sources of inspiration for developing future stories, characters, settings, or artwork for games.
I emphasized copyright aspects related to literature and art because the non-lawyer members of Georgia Lawyers for the Arts, who produce work in traditional mediums, consist of artists, illustrators, and writers. Computer and video game artists, designers, and engineers thus would adapt elements of art and literature into the elements that make a game. Games on the market are widely varied, and some games rely more heavily on story and artwork than others. Visual Novels are mixed media novels that are popular in Japan and rely heavily upon anime-style artwork to tell fictional stories. Action games, like Street Fighter, Mortal Kombat, and Halo, were made into movies that consist of stories, characters, settings, and artwork; however, the games themselves, primarily focus on fighting. While there is an opportunity for a screen writer to adapt an action game into a motion picture, writing for an action game may be challenging because the emphasis is on combat, rather than developing a plot, or exploring the depth of characters. In contrast, role-playing games revolve around a pre-determined story and consist of highly-detailed characters that require a writer or artist to effect in tangible form. Examples of role-playing games include Final Fantasy, Elder Scrolls, Grand Theft Auto, Magic: The Gathering, World of Warcraft, Diablo, Minecraft, and Lord of the Rings series.
As for employment agreements, there are three basic scenarios. In the first scenario, a game developer specially orders or commissions a work from the independent contractor. Classified as a work for hire, this agreement has the legal effect of placing the game developer in the role of author and owner of the work, and the independent contractor as employee of the game developer. In the second scenario, the independent contractor assigns his or her rights in the work to the game developer for a statutory period lasting 35 years, with the option of terminating those rights under Section 203 of Title 17 U.S.C. The assignment has the legal effect of making the game developer the owner of the creative work, while the independent contractor remains its author, and may indeed, become the owner again. In the third scenario, the independent contractor licenses certain exclusive and non-exclusive rights in the work to the game developer. In the licensing agreement, the game developer, acting as licensee, is neither the owner nor the author of the work. It is the independent contractor, acting as licensor, who retains authorship and ownership of the work. However, the amount of control that the independent contractor may exercise over the work is limited by the granting language. Granting language allows certain exclusive and non-exclusive rights, which exclusive rights typically permit the game developer to adapt and mold the work to fit the game (and future versions, sequels, or editions of the game), while non-exclusive rights typically allow the independent contractor to exercise overlapping rights to exploit the work of art or literature in other formats, such as print publication.
Finally, I ended the presentation with a brief discussion of deal points in a license negotiation between an independent contractor and a game developer. The key terms of a licensing agreement are granting language, duration, geographic territory, and payment. The granting language will outline the exclusive versus non-exclusive rights in detail. Section 106 of Title 17 U.S.C. defines exclusive rights in copyrighted works. One of these rights is the right to create derivative works; thus, the licensor may grant an exclusive or non-exclusive license for the licensee to create a derivative work of his or her story, characters, setting, or artwork in the game. The licensor may retain the right to grant a license to other licensees to create derivative works of his or her original work in other forms, such as a comic book, or television series, in addition to the game. Other non-exclusive rights include the use of text excerpts, synopses, and summaries to promote or advertise the game. Granting language will also delineate exclusive rights between parties. On one hand, the licensee will want the exclusive right to use the adapted work in all technology, including all platforms, or delivery methods, currently known or devised in the future; to create more than one version of the game, future editions, or sequels; to adapt the game into other formats such as a motion picture; and, to merchandise the adapted work for the game. On the other hand, the licensor will want to retain the exclusive right to present the original work onstage such as for a theatrical production; to write and publish sequels using the story, characters, setting, and artwork from the original work; and to retain print publication rights.
There are other, important provisions in a licensing agreement; therefore, hiring a trained professional is critical to negotiating a mutually beneficial agreement. Representations and warranties require that the licensor confirm ownership and control of the rights he or she is granting, that the work is original and not in the public domain, and that the work does not infringe on any third parties’ rights. Another section of the license agreement calls for the licensor to indemnify the licensee against any and all claims for infringement arising out of a breach of the representations and warranties. The indemnity section therefore, makes the licensor liable for defense, costs, damages, and other liabilities. Finally, aspects related to the production schedule are important to define, so that each party is aware of the expectations of the other. Clearly defined expectations are less likely to lead to a dispute arising from the licensing agreement. For example, specifying deliverables, such as when the game is to reach its Alpha (embryonic), Beta (testing), and Gold (release) phases are critical to establishing milestones. Such milestones can be rewarded if met or penalized if unmet in language written in the licensing agreement. Some licensors will want to specify acceptance to the necessary adaptations to convert original characters, stories, settings, or artwork into gaming format. If that is the case, then specifying what is susceptible to acceptance, who is authorized to give such acceptance, and what the period for acceptance is will help the licensee accept a provision for acceptance as proposed by the licensor.
As you can see from the above, this presentation was packed with information for the artist seeking to find new avenues of representation in the arts, and in particular, in technology. Computer and video games is an area of entertainment that necessarily blends art and technology. Georgia is an ideal state for growth of game development, where 75 game development companies are located. Most recently, on April 14, 2014, a new bill was signed into law redefining the tax credit caps that are available to game development companies that meet certain criteria at the Georgia Department of Economic Development. These caps are in place until 2016; therefore, I expect new legislation to be debated under the gold dome once the first full year has passed for available tax credits. Keep your eyes peeled for new language to either modify or extend the caps in the 2015 regular session. Until then, House Bill 958 will become effective on July 1, 2014. To find out more about the game development community in Georgia, please visit the website of the Georgia Game Developers Association at GGDA, or their Facebook page at GGDA Facebook.