Updated: 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, including most notably that you need a registration before you can sue for infringement.

1.     Registration is required before you can sue for copyright infringement.  In March 2019, the Supreme Court ruled unanimously in Fourth Estate v. Wall-street.com that copyright infringement suits cannot be filed until after the Copyright Office registers a copyright. Obtaining a copyright registration for your video game when your first create it means you are locked and loaded in the event you need to sue for infringement. If an infringer is ripping off your game and you have not yet obtained a copyright registration for it, waiting to file suit until the registration issues can cause harm your ability to take quick action to protect your interests. And it is likely much easier to gather all of the information needed for a copyright application for registration (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 you first create or modify a work, rather than waiting and scrambling to gather the needed information in a rush to file suit. For more information on Fourth Estate v. Wall-street.com, please read our Insight, SCOTUS Rules That Copyright Owners Cannot Sue Without a Registration.

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 date of first publication.  This presumption applies only 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 must rebut the presumption to prevail on that claim. In this way, the presumption frees the copyright owner from needing to prove copyright validity or ownership in an infringement case, unless the infringer can first 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 of first publication, can seek statutory damages. Statutory damages can range from $750 to $30,000 for each work infringed, and up to $150,000 per work if the infringement is proved willful. Once infringement has begun, however, 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 of first publication, 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 add a bite to cease and desist letters because of the presumption that the copyright is valid and the threat of liability 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 of the work with the U.S. Customs Office for protection against the importation of infringing copies. 

6. Registration can be expedited and it’s often worth the additional small cost to avoid a months-long wait to protect your game.  If you think your game might enjoy immediate success and, as a result, early threat of infringement, it’s worth considering seeking “special handling,” or expedited processing, of your application for an additional fee.  The Copyright Office currently estimates an average processing time of 7 months for applications.  If you have a big hit likely to draw immediate interest from possible infringers, seeking expedited processing can save you months of waiting and allow you to protect your interests from the start, potentially saving you costs in the long run.

For all of these reasons, an owner of any video game, especially a successful game, should seriously consider registering the copyright as early as is practicable and well before any infringement of the game appears on the horizon. 

About 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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