Basic protection is available by the very fact that a work is yours and original, and it is unknown to others. A work does not have to be unique or revolutionary to be a trade secret—only a combination that has potential economic value and has not been freely disclosed to others. If it is kept secret, you may have the protection of trade-secret laws. Trade secrets do not expire. As long as the details of your work are kept secret and appropriate steps are taken to limit unrestricted access to, and disclosure of, the information, you may be protected. This means that you cannot allow information about the work to be known by public means, including an overheard conversation, leaking by employees, or a design document carelessly left open or lost, for instance, in an airport or on a train. You must take affirmative steps to maintain the secret nature of your work. Examples of such steps include restricting access to your labs and requiring anyone exposed to your work to sign an adequate NDA. Unless someone has specifically signed a non-disclosure agreement (NDA) agreeing to maintain your information in secret, they have no legal duty to hold information they learn by any means as confidential. So, if you are submitting a document to an outside party, be sure to have them sign an NDA and mark each page of the document “CONFIDENTIAL AND PROPRIETARY” along with the project name and date.

The best protection for trade secrets is to keep them secret, by whatever means you have at your disposal. When it is no longer a secret, it is no longer a trade secret.

An example of a famous trade secret is the formula for Coca-Cola. It is known by only a few people, and it is held in a bank vault. It has never been disclosed since John Pemberton created it in 1886.

Copyrights can provide powerful protection for your original work, such as a literary, dramatic, musical, or artistic work, but there are limitations. For instance, you cannot copyright an idea, only the expression of the idea. For instance, you could copyright a design document for an auto racing game, but not the idea of an auto racing game. Anyone would be free to develop their own design for an auto racing game, and so long as their design is an original work of authorship, they have rights to their own design. If someone reads your document and writes essentially the same game concept, using elements from your design, their work could be considered a “derivative work” from your design and a copyright infringement. However, even if their design is virtually identical to yours, but they truly had no access to your work, the author of the other design would also be protected as the copyright owner of his or her work. The key concept is that copyright protects the author of an original work of authorship from the moment the work is fixed in a tangible form of expression. Uniqueness is not an element of copyright. Similarly, you can copyright a piece of source code, but someone else could write code to do the same thing, and that would not be an infringement of the copyright unless they had access to your code and their work was based on your work. If they took your code and used it verbatim, or their code was derived from your code, that would be an infringement.

Copyright grants the owner the exclusive right to reproduce the work and distribute it (through sale [transfer of ownership], rent, lease or loan), to make derivative works, and to perform the work or display it.

So long as your work is an original work of authorship fixed in a tangible form of expression, you have an automatic copyright—meaning that you can put a copyright notice next to any original work, such as art assets that accompany your game submission or written source code. One correct form for this notice is:

However, this automatic copyright is not as effective as a registered copyright. It is easy to obtain a copyright. Check at www.copyright.gov for more information. There is a section at copyright.gov for publications and circulars. Check Circular 1, “Copyright Basics,” for easy-to–understand, basic information.

If you are an employee and have created something as a “work for hire,” then the copyright is owned by your employer unless you have specific terms that grant you copyright to the works you have created under the contract. If you create a work in partnership with others, the copyright naturally becomes co-owned. When working with others, a simple collaboration agreement, laying out ownership of the work product and materials, is always a good idea. When ownership of a copyright is held by more than one person, the rights and responsibilities of each, in connection with the work and each other, are complex.

To qualify for a copyright, your work must be a) original, b) owned by you, and c) at least somewhat creative. Finally, d) it must be something that can be tangibly produced, such as a piece of artwork, a printout of code, or a specific document that can be printed (or recorded).

Not everything can be copyrighted. For instance, you cannot copyright something that has not been made tangible. You can’t copyright an improvised speech that wasn’t recorded or transcribed. You cannot copyright names, short phrases, slogans, symbols and designs, and so on. You may be able to trademark these items. Also, as mentioned before, you cannot copyright an idea, a method/system/process/concept/principle/discovery, or a device, other than the specific written description of it. For example, you cannot copyright a blank/empty spreadsheet grid. There is no original work of authorship there. Moreover, you cannot copyright something that is entirely assembled from common properties. Some original work must be present, besides merely assembling material from the public domain. An example of this is the copyright notices that appear in reprints of Shakespeare’s plays. In nearly every instance, there is an essay from a noted academic explaining the work. It is the essay that is protected by the copyright notice, not the work of Shakespeare. If the play were to be abridged, it is possible the abridgement would represent sufficient original authorship to qualify for a registered copyright—but that would be the call of the copyright office.

Copyrights expire in time. The laws for a work created after January 1, 1978, state that the copyright will last for the lifetime of the author (or the last surviving author) plus 70 years. If a work is anonymous or pseudonymous, and the author’s real identity is not associated with the copyright, the term is 95 years from publication or 120 years from the date the work was created—whichever is the shorter period. For copyrights created or published before January 1, 1978, the rules are a bit more complicated, but for the purposes of this book, we’ll assume you are working with material created after 1978. More recent laws make the renewal of the original copyright optional, and that copyright automatically extends for works created before the 1978 date.

Note that some items may fall out of copyright but remain trademarked. (See the upcoming “Trademarks” section.)

When you are pitching a concept to a publisher, remember that your ideas are not copyrighted, but your entire design is. If you go in and propose a baseball game, the idea of a baseball game is not copyrighted. However, if you present a full design of a superhero baseball game, that full concept is copyrighted, and you would have a lawsuit if it were stolen, providing you could prove that it was your design that was used. To be clear, the idea of a superhero baseball game is not something you can copyright, but your full design is.

Most companies require you to sign a document before pitching a game that, in essence, states that the company may have something substantially similar already in production, and therefore they cannot be held liable if a game is released that is similar to what you are pitching. If you think the situation is otherwise, you would probably need to consult a lawyer.

Trademarks are used to denote the origin of goods or services and avoid confusion in the marketplace, and they are typically in the form of names, words and phrases, logos and symbols, designs and images, and various combinations of the aforementioned. Even a specific shape, the scent of an item, or a sound can be trademarked if it distinguishes one company’s specific goods from those of another company or provider. For instance, brands such as Coca-Cola or Sony Style are trademarked names. The traditional shape of the Coca-Cola bottle is a trademark. That means that nobody but The Coca-Cola Company can use the name Coca-Cola or the shape of the bottle on an item, whether it is another soft drink or a related item, without permission. The symbols ™ and ^® are virtually interchangeable designations of trademark, except that ™ refers to an unregistered trademark and ^® refers to one that has been registered. (When referring to a service rather than a product, similar protection is available as a service mark.)

There are lots of laws and restrictions about trademarks. The simplest way to establish a trademark is to use it in the marketplace. For instance, if you created a skateboard brand and called it Blastobean Skateboards, you would be able to trademark the name Blastobean if nobody else had done so. To find out whether something has been trademarked, you can conduct a trademark search in the particular jurisdiction in which you want to establish the trademark. In the United States, you can search at the United States Patent and Trademark Office (www.uspto.gov). I also conduct a Google search for the name I want to trademark, because that can often reveal other people using the same name (or even embarrassing associations and meanings you were unaware of), even though nobody has trademarked it officially. You might also want to engage an attorney who specializes in patents, copyrights, and trademarks, especially if you are looking to ensure protection of something you think is going to be very big and something that others might try to copy.

The “official” way to trademark something is to register it in the jurisdiction in which you want to protect it. Each country has different trademark laws, and not all countries recognize trademarks based on use—for instance, China and the European Union.

Remember, the primary reason to trademark something is to identify and to prevent confusion as to the identity or source of goods or services—in other words, to make sure that when someone sees Blastobean on an item, they know it came from your company or was used with permission. If it is used without permission, you can institute a lawsuit against whoever is infringing your trademark. In simplistic terms, the test for trademark infringement is whether something seems to be selected intentionally to confuse consumers or users of a product or service, or whether actual confusion exists, regardless of intent.

As long as the trademark remains in use, it does not expire. However, United States law requires periodic filings in connection with registered trademarks, or else they will be treated by the Trademark Office as abandoned.

There are exceptions to both copyright and trademark laws. For instance, you cannot copyright a title, no matter how original, but you may be able to trademark it, particularly if it gets associated with a recognizable brand, such as The Matrix. And, while copyrights do expire in time, because a trademark does not expire as long as it continues to be used, legal protection for specific names or entities, such as Harry Potter, Mickey Mouse, Popeye, or Sherlock Holmes, can remain in force indefinitely, even after the expiration of any copyrights associated with them. Trademarks that are regarded as merely descriptive cannot be registered. For example, the name “brown shoes” cannot be registered if it is intended to be a trademark for brown shoes.

This section is a very cursory look at trademarks. We highly recommend that you get legal advice or further research the subject if you intend to trademark anything and enforce the trademark.

Special thanks to Jim Charne, video game attorney par excellence (www.charnelaw.com and igda.org/columns/lastwords), for help with this chapter.