Few basic questions about contacting a copyrightholder

Advice for those new to the concepts of copyright
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Few basic questions about contacting a copyrightholder

Post by ronnieinspain » Wed Apr 02, 2014 8:33 am

I require some help,

I have an idea for an expansion to a game which is owned, copyright included, by a large, well known american company. Before communicating them my ideas, i would like to know how i could protect my idea from being stolen. My questions are as follows:

1. How can i ensure that whatever idea i discuss with them is not used by them at a later stage effectively stealing it?

2. What is the normal procedure of conducting these kind of negociations?

3. If they were to say they already had a similar idea, how can i be sure?

4. Are the laws governing this the same througout the European Union? and what about the US?

5. The copyright holder is an american listed company, i am european, what are the implications of this?

I am basically interested in knowing my rights and want to ensure that if they do end up using my idea, they somehow pay me.

Any help would be appreciated.


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Post by AndyJ » Wed Apr 02, 2014 10:46 am

Hi ronnie,
You are right to be cautious about how and to whom you reveal your ideas.
That said, copyright law may not be that helpful here, simply because games do not neatly fit into any of the categories of works which the law specifies. And of course, famously copyright cannot protect ideas, only the expression of an idea in some tangible form.
You don't say what kind of game you are talking about, but if it can broadly be defined as a computer game, that is, it is based on software and has a graphical element to it, then copyright will certainly be of assistance because both of these elements are protectable with copyright. This means that irrespective of who you tell or how you seek to exploit your idea, assuming that you haven't copied any code or graphics from somewhere else, you would own the copyright in those parts of your idea as long as it was set out in a document, such as a flow diagram or the actual code and illustrations of any characters or visuals which comprise the game, and you could sue anyone who infringes your copyright.
But if your game is a more conventional board or activity based game, there are a number of other forms of IP to consider. Design right can protect certain external or internal characteristics of a product, such as its shape, configuration, texture and colour, but that that would only apply to certain parts of, say, the physical pieces which are moved around a board game, or something like the frame of Connect4.
And then patents can protect some processes or methodologies (as well as devices) which show a reasonable degree of inventiveness compared to what is currently known. So if you had thought up a new version of Kerplunk, that may well be patentable, but if so there are certain precautions you need to take prior to applying for a patent to make sure your idea remains confidential. To go down that route you should really consult a specialist lawyer known as a Patent Attorney
But your strongest protection may lie in the law of confidentiality and trade secrets. In the US and UK this is what is known as tort law, that is to say it's not based on a statute, but rather on a body of judge-made law built up over the years. It's too complicated to go into it here (and quite some way outside the purpose of this site) but you can google it or look it up in Wikipedia.
But since I don't know whether you have found a way of updating Tetris or Monopoly, I'll try and provide some generic advice on the next step.
First of all, make a detailed description of your idea on paper, illustrated with little sketches if necessary, highlighting all the new parts and how they might fit into the existing game. The more detail the better. Sign and date the document and get a friend or relative (whom you trust, obviously) to sign and date it as a witness. This then establishes what your idea is and marks a certain point in time when it existed, and your claim to it. Obviously your actual idea will predate the document but it may be much harder to show a court (if it ever comes to that) when you had your original idea. If you have any other documentation which supports the way in which you refined or tested your idea, keep them safe too. Things which have a date attached to them like emails on the subject are also helpful. If you collaborated with anyone during the development of your idea (for instance if they acted as an opponent when you tested out your idea), get them to write a short statement about it, including if possible any dates when this might have occurred.
Then before your approach the American company, you need to draw up a Non Disclosure Agreement. You can find templates for these online (for instance here) but you may need to customise it to fit your circumstances. Better still, get a lawyer to do this for you, but that will be expensive, especially as you need it to meet the requirements of US law as well as UK law on confidentiality (fortunately there is not too much difference). However some US states have their own laws about NDAs, so you may need to check in some detail about this.
You can then make your initial pitch, in very broad terms, ie "I have come up with a completely new way of playing your game XXX, which I would like to discuss with you in confidence and subject to a non-disclosure agreement between us." You can obviously pad it out in your own style, but clearly you should not include any details whatsoever about how your enhanced game would work without first having got the NDA signed. If the company has a representative here in the UK or if as your name suggests, you are based in Spain, then a rep in Spain, that would make it easier to set up any meetings.

Unfortunately there is no way for you insist that the company reveal to you if they already have any plans to extend their game in much the same way as you propose, because obviously they will wish to protect their trade secrets too. And this the major problem you face. If during the early stages of your pitch, they say something like "Well we have already got something very similar to this going through development now" you can't demand that they prove this is so. Only if the matter went to court would they be obliged to show how their idea had arisen before the meeting with you and explain how any similarities arose. Clearly the extent to which your idea and their new game were similar would be a major factor in whether the court was convinced your ideas had been stolen.

As I have said, the general laws on confidentiality in business dealings are very similar across developed countries because they are essential for smooth business relationships. The EU is in the process of putting out an EU Directive on the subject (you can see a summary of the draft proposals here in pdf format) or in a slightly easier to follow commentary here: Olswang Commentary. But probably more important is how you can enforce your legal rights should something go wrong. Almost inevitably you would need to start any legal action in the US courts. This could be both difficult logistically if you have to travel to the US, and also costly. It might be possible to use the European courts if the game which incorporates your ideas is marketed in the member state where you want to sue and the company has a 'presence' there. This means they must have some direct employees or assets in the member state, otherwise even if the court awards damages in your favour, there will be little chance of you getting your money.

As you can see, there is much to consider. but I don't want to be completely negative. It could go in an extremely straightforward and ultimately, rewarding, way for you. But you should be prepared to walk away, rather than get involved in lengthy and costly litigation if it goes wrong.

Here are a couple of papers of the subject of intellectual property and games:
The first from a American law firm provides a useful overview from the US perspective: Pillsbury (pdf) and another article from a European point of view: Mondaq
Last edited by AndyJ on Wed Apr 02, 2014 7:36 pm, edited 1 time in total.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

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Post by ronnieinspain » Wed Apr 02, 2014 11:18 am

Hi AndyJ,

I much appreciate your prompt and very complete reply. You cleared a few of my doubts and pointed out a path to take, things to remember and some references. Once again, thank you very much.

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