Preparing the game for release: legal aspects

Anton Wise, Legal Advisor at Alawar
The release of the game means that the in-studio development process is completed and the product is ready for release.

The game becomes available to users, its commercial operation begins to generate revenue from sales. From the same moment, the content of the game product, its form and elements cease to be an internal matter of the studio and become public.

The release is a turning point that requires serious preparation from the studio, including legal.

Let’s look at the key points that require special attention from both the developer and the publisher at the release stage of the game.

Originality of content and borrowing

The main feature of creativity is the uniqueness of the result. It is believed that its coincidence between two different authors is incredible and impossible. The entire system of intellectual property protection is based on this axiom.

Heroes, sounds and music, background and locations, dialogues – everything that makes up the content of the game product should not repeat the already existing, previously published objects.

Any repetition will be recognized as borrowing. Moreover, not even a 100% coincidence, but only the similarity, say, of your game character with the character of another previously released game, can already entail serious legal consequences for the game, the developer and the publisher.

Here it is worth mentioning such criteria as “similarity to the point of confusion”. The problem is that the assessment is completely subjective. In theory, everything is simple: the result of your creative activity should be different from others, be unique, special, distinguishable, but in practice it turns out that distinctness is in the eyes of the beholder.

Borderline situations “similar – not similar” often become the subject of judicial review. In most legal systems, the similarity of two objects confusingly refers to “questions of fact”. The judge determines them according to his own conviction, and the parties have the right to present arguments in their defense.

An aphorism about prevention and disease is most appropriate here: it is necessary to identify objects in the game that are “alien” or very similar to “alien” BEFORE the release. Before the incorrect borrowing becomes known to the public, including the copyright holder of the original object that you borrowed.

As a rule, publishers insure themselves against such risks at the level of a contract with developers. The terms of the agreement separately state that the developer guarantees the “licensed purity” of his game and is obliged to compensate the publisher for losses and pay a fine if the rights of third parties are violated.

The amount of compensation for the use of other people’s creative results is huge. It is difficult to imagine in reality the successful recovery of the entire amount of losses and fines, especially if we are talking about a young studio with a single game and without serious financial resources. The publisher needs to choose projects meticulously and carefully analyze the content of the game. Therefore, for him, a must have is a broad outlook in the field of music, design and the gaming industry as a whole.

A separate question is Easter eggs, references to the content, plot or bright elements from another famous game, movie or book. There is no comprehensive guide on how to use Easter eggs, as well as their exact classification.

If your game contains only associations, allusions with known objects – there is no borrowing, there is nothing to fear. If some borrowing is still present (the image matches or there are recognizable bars in the melody), then there is an assessment of the place and significance of Easter eggs in the overall content and volume of the game.

There are no exact quantitative criteria, but if the whole game develops according to the scenario “guess where we got the next piece”, then the fate of the project is unenviable. If not every user can detect the Easter egg, and it itself has nothing to do with the passage of the game and the plot, then there are practically no risks.

In general, using Easter eggs, it is worth limiting yourself to a minimum amount and building a game product so that any Easter egg can be removed without compromising the game.

Age restrictions

The information that gets into public access must be qualified by the age of the users. The motives here are the most humane: concern for moral health, moral integrity and upbringing of the younger generation.

Age restrictions differ for different countries and different categories of information.

The main thing is to decide in advance who your game is aimed at and in which countries you plan to distribute it. This will help determine the age limits long before the release. If the age restrictions are incorrectly determined or violated, the game will be banned from distribution. Optionally, fines may be imposed on the developer and publisher.

Personal data and privacy

Personal data is a separate category of information that requires a special approach. Now the sample of data included in this group is expanding, the rules for their use and the amount of punishment for violations are being tightened. There are such acts as 152-FZ (Federal Law on Personal Data) and GDPR (EU Regulation, General Data Protection Regulation). The fines imposed by GDPR will probably destroy even a studio or publisher from the middle segment of the market.

The signal is obvious – “do not use personal data, do not use it at all.” If you do decide, limit yourself to a minimum number and protect them.

Requirements of stores

The requirements of the site where the game is planned to be distributed are a separate legal issue that needs to be resolved at the release stage. Cooperation with the publisher simplifies the task, since the publisher works in the gaming market and publishes projects “on stream”. This means that he not only thoroughly knows the content of all offers, terms of use, privacy policy and other things, but has also developed the practice of their application. Figuratively speaking, he laid a route between Scylla and Charybdis of prohibitions and restrictions.

In another case, the studio needs to independently study all the documents published by the store and objectively correlate them with the game without counting on indulgences. Ignorance of the law does not exempt from responsibility.

Violation of the rules of the site will lead, at least, to the withdrawal of the game from sale. As a maximum, to remove all studio games from the site and to withhold all user payments – the store will take them as a fine.

Countering piracy – illegal distribution

The published game instantly becomes an object for “piracy”. Copyright holders have different attitudes to this: some consider it an inevitable evil, not worth the effort; others see piracy as evidence of success and popularity, while others take the fight. Be that as it may, there are no unified approaches and tools in the fight against pirates.

A universal tool is a request to the site owner to stop illegal distribution. Contact information can be contained on the site itself, in the site documents or in the WhoIs system data.

Another fairly effective tool is a complaint (abuse) to a hosting provider that provides services for a pirated site. Eminent hosters are quite attentive to the content of client sites and respond to complaints from copyright holders. Hosting providers’ data is also available in WhoIs.

You can seek help from the state in those jurisdictions where there are special procedures. So, in Russia, copyright holders have access to a tool for “blocking” sites by the decision of the Moscow City Court. The application must be submitted through the official website of the Moscow City Court, and the decision (or rather, the definition) on pre-blocking “until clarification” is received by the applicant no later than the next working day.

It is worth clarifying here that the pre-blocking is temporary and lasts only 15 days, during which you need to file a full-fledged lawsuit for an eternal “ban”. In practice, a threatening letter from Roskomnadzor about a 15-day lockdown is enough for the site owner or hosting provider to delete the disputed content forever under the threat of losing access to the entire site.

***

The release and promotion of the game is the final stage of development, which requires serious legal support. In tandem with the developer and publisher, these issues are usually within the competence of the latter. With an independent release, the studio needs to take care of such provision independently and level out the risks that may exceed the expected financial result from the release of the game for sale by several orders of magnitude.