Why should video game companies register copyrights in their video games?

Game companies frequently do not make a habit of filing copyright applications when they publish a new game.   Admittedly, it is a bit of a pain and low on the priority list when there are more pressing business needs that require the legal department’s attention.  But there are compelling reasons why registering copyrights in the source code and audio-visual elements of a video game, especially a successful one, is worth the effort.

1.     Registration (or at least an application) is required before you can sue for copyright infringement.  Obtaining a copyright registration for your video game when it is first created means you are locked and loaded in the event you need to sue for infringement.  If an infringer is ripping off your game, delaying suit until the application or registration process is completed might cause delay at a time when quick action may be required to protect your interests.  And it is likely much easier to gather all of the information needed for a copyright application (e.g., copies of the work, information on authors, owners, and publication, and identification of new material, third party material, pre-existing works and prior registrations) when a work is first created, rather than waiting and scrambling to gather the needed information in a rush to file suit.

2.     Registration creates a presumption that the copyright is valid and that the facts stated in the registration application are true, including who authored the work, who owns it, and when it was first published.  This presumption applies to works registered within five years of their publication.  When the presumption applies, any person (like an employee or contractor) that claims an ownership interest in the work will have to rebut the presumption before making their claim.  The presumption also frees the copyright owner from needing to prove copyright validity or ownership in an infringement case, unless the infringer can rebut the presumption.

3.     Registration prior to infringement allows an owner to recover statutory damages, otherwise an owner is limited to actual damages.   Actual damages include your actual losses and an infringer’s profits, which may be small or hard to prove, or both.  But a copyright owner that registered a work before the infringement began, or within three months after the work was first published, can seek statutory damages.  Statutory damages might run from $750 to $30,000 for each work infringed, at the court’s discretion, and up to $150,000 per work if the infringement is proved willful.  Once infringement has begun, it is too late to register the work to obtain statutory damages.

4.     Registration prior to infringement allows an owner to recover attorneys’ fees and costs.  The copyright owner that registered a work before infringement began, or within three months after the work was first published, can also recover attorneys’ fees and costs.  Attorneys’ fees can exceed tens of thousands of dollars per month, and so the threat that an infringer will have to pay the owner’s attorneys’ fees in addition to its own can provide the owner with substantial leverage, especially in cases where the goal is to stop future infringement rather than obtain damages.

5.     Registration may serve as a deterrent to potential infringers.  Registration can also give more bite to cease and desist letters because of the presumption that the copyright is valid and the threat that an infringer will be liable for statutory damages and attorneys’ fees.  Registration can also deter foreign infringers, both by providing copyright protection in other countries through U.S. treaties and agreements, and allowing the owner to establish a record with the U.S. Customs Office for protection against the importation of infringing copies.   

For all these benefits, an owner of any video game, especially for successful games, should seriously consider registering the copyright well before any infringement of the game appears on the horizon. 

 

About the Tyz Law Group.  The Tyz Law Group is a business and IP litigation and counseling firm, focused on high quality representation and personalized client service, on a fixed-fee basis, by experienced technology lawyers with proven big law firm experience.  The result is unparalleled efficiency, budget predictability, fee transparency, and a savvy and nimble team focused on delivering results, not billable hours.  If you have questions about copyright registration or litigation, ensuring that you own the copyright in your works, or other issues, please contact us at (415) 849-3578 or contact@tyzlaw.com.

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