Protecting your intellectual property is important in the games industry. One popular, cost effective and easy way to protect your work is through copyright registration. Although not strictly necessary it is generally preferable to register sooner rather than later—in the event of infringement, early registration entitles the registrant 1) to a presumption of copyright validity and 2) statutory damages. Below is a list of things to keep in mind before, during, and after you've decided you register your work.
Before You Register
Non-Disclosure Agreement. During the early stages of concept development and brainstorming it's smart to have a non-disclosure agreement that mutually or unilaterally binds all other collaborators, employees or contractors who are exposed to the project. This gives some contractual protection over elements that may not be protected by copyright such as basic ideas.
Collaboration Agreement. If you are not working independently it is important that you set out rights ownership prior to registration. This is done through a collaboration or work-for-hire agreement. Taking this step ensures that ownership rights are known by all parties and properly stated in the copyright application. The contracts also provide documentation/evidence of ownership interests. The NDA may be separate from or integrated in the collaboration or work for hire agreement.
Preregistration. Some works qualify for preregistration. Even if you qualify, this is typically only useful for titles that have a history of being leaked prior to distribution/street date. Unless you anticipate someone ripping off your work prior to completion/publication of the game, this isn't a necessary step. If you're the over-cautious paranoid type, bear in mind that this isn't a substitute for registration.
Picking a Registration Method. Previously copyright registration could only be performed via mail by submitting one of several forms. Most game companies used Form PA to register their completed works. However, the old system has been tweaked substantially. You can now register your copyright by one of two ways: online (eCO) or via mailed standard form. The new system does away with most of the different form types. Online registration is cheaper and avoids additional paperwork, which is why online registration is encouraged by the CO. Remember that you must complete all three steps (application, payment, and mandatory deposit of the work) before your work is registered.
- Filling Out the Application. Fortunately only one standard form is generally now needed for most works—Form CO. You can find a copy of the new application here. You should carefully review the instructions prior to filling out the application. As stated above, previously copyright registration was done via specific form. The type of work submitted determined which form the registrant should use. Form PA pertained to all performing arts works, including motion pictures and audiovisual works. Form TX pertained to non-dramatic literary works. Form SR pertained to sound recordings, and Form SE pertained to serials (works intended to be issued in successive parts, like magazines or newsletters). Thanks to the new registration system those forms are no longer necessary—the new system's Form CO combines these different forms into one. Form CO contains 8 sections. We'll take a look at each section below.
2) Author Information. The person or organization that created the work is stated here. Keep in mind, the author(s) listed owns the work absent additional written agreements. Use the "Other" line after paragraph 2h "Continuation of Author Information" if you want to assign percentages of contribution. Once again, the form CO allows you to add additional authors at the click of a button.
3) Claimant Information. The claimant is the owner of the copyright claiming rights to the work. This is the author absent assignment or transfer, so the information may closely reflect that of section 2. A person with a license to use the work is not a claimant for the purpose of copyright registration. You only need to use the "acquired by" section if the claimant isn't the author.
4) Limitation of Claim. This section should be filled in if your work contains or is based on previously registered work or work you are only licensing. One good example is music. If you licensed the music to your game you would have to limit your claim to exclude music. If you are licensing artwork and you don't own the artwork in your game you would have to exclude that from you work. Bear in mind, you can't claim copyright infringement if you don't own a right to a work. Limitation of your claim to exclude those rights removes your interest in that particular element. Use the "Other" section to add specific instructions as to the exclusion. The New Material Included in this Claim section is useful if your work contributes something new to a previously registered work. For instance, if you previously registered your game script and subsequently registered the completed game, you would want to select everything that you've added.
5) Rights and Permissions. This is where the registrant designates who to contact to obtain licenses or other rights pertaining to the work. This may be an agent given authority to act on the author's/claimant's behalf, or the author/claimant him or herself.
6) Correspondence Contact. Who should the copyright office contact if they think you've made a mistake on your application? The same rules stated in #5 apply here. Make use of the checkboxes.
7) Mail to Certificate. Who should receive the copyright certificate? Once again, make use of the check boxes.
8) Certification. This is where you swear that everything contained in the application is true and correct. Misrepresentation subjects you to a hefty fine of $2,500. This is why careful review is a good idea.
Paying the Fee. Online registration is $35. Mail in Registration is $45. eCO allows you to pay online via credit card. If you mail it in, you can include your payment by check or money order.
- Mandatory Deposit. To complete registration you must deposit a copy of the original work. If you have already published your work you need to submit two copies of the best edition of the work. You won't get those copies back, so make sure they aren't your only copies.
- Waiting Period. Provided there are no errors in your application or problems with payment or deposit, if you register online you should expect to receive your certification of registration in about five months. Registration is effective once the Copyright Office receives your complete and accurate submission, including application, payment and deposit.
Assignment/Transfer. If you later assign, sell, or transfer the rights to your work the new claimant will likely want to record the transfer document with the Copyright Office. Bear in mind that any transfer of ownership in a copyright required a signed writing to be enforceable. That writing is also necessary for recordation purposes.
- Corrections to Registration. If, after registration, you discover an error or you need to make an addition to your application you must mail in (with the requisite fees) a Form CA. This form can be filled in online and printed out. The Copyright Office will then make the necessary changes and send you a new certificate of registration.