Archive for

Legal Issues Surrounding iPhone Application Development

March 17, 2009 Entertainment Law No comments

    The iPhone App store has been open for almost a year now, and while many of the apps provide substantial utility, most are just plain and simple fun. Game development for the iPhone is a rapidly growing industry. Below I'll cover some of the general problems that may and have come up in iPhone App development. If you are unfamiliar with iPhone App development, follow the jump for some quick pointers on getting started. If you're already a Mac user and want to develop for the iPhone, you should head over to the Apple Developer Connection to learn about the technical and procedural requirements for iPhone app development. Bear in mind that all apps are subject to Apple certification before they can be tested on an iPhone or uploaded to the iPhone App store.

    Intellectual Property and Related Issues

    
1)App games based on PC/Console games. Many developers may want to create iPhone versions of their favorite PC, Console, or handheld games. However the creation of an iPhone app based on someone else's work may be considered a derivative work or reproduction of the original game under copyright law. Therefore recreation of the original game or even an app loosely based off an original game, no matter how novel in execution, would almost certainly expose the developer to infringement liability. Even ignoring the copyright issue there are legal claims under trademark and unfair competition that would create major problems for our would-be developer. Absent a license from the original game developer/publisher no iPhone App developer should attempt to create an app based on prior games.

    2) App games based on or resembling existing iPhone apps or other games. Due to the simplicity of various iPhone Apps, it may often be the case that some apps closely resemble other apps. This can be a tricky problem—while under copyright law two authors may create identical or similar works provided one did not take or borrow from the other, the same is not necessarily true under trademark law. Furthermore, proving that you did not have "access" to someone's pre-existing app usually requires a lawsuit. While Apple reviews each application and provides certification, the reviewers are not omnipotent and may not be aware that pre-existing apps exist. Under the SDK agreement is the developer's obligation to ensure that no copyright or IP laws are being violated. The only real option is to tread carefully and check out the competition or, if you can afford it, obtain Errors & Omissions Insurance for your company/application.

    3) App games that use the name and likeness of celebrities. This has actually happened on more than one occasion. Using the name and likeness of a public figure/celebrity may expose you to liability under state name and likeness laws or trademark/unfair competition law. What you consider parody may be considered defamation by the individual in question or worse, a judge. Unless you want to argue your case for parody and fair use in court, your best bet is to avoid potential exposure by using your own fictional characters.

    ** Addendum: Trademark matters. As pointed out by Dan Rosenthal over at GamesLaw, one issue that deserves mentioning is the trademark problem– frequently iPhone apps will contain deceptive names that closely resemble the trademarks of other products or similar services.  Absent a license or permission from the trademark holder, developing an app using someone else's service or trademark can and in all likelihood will expose you to some legal liability. This is particularly true if your game also uses other IP elements. See the iBorat app for a good example of the kind of use I mean.

    Contract and Related Issues

    1) User privacy. Under the SDK Agreement developers are required to comply with "all applicable privacy and data collection laws". This includes state, federal, and international laws. Privacy laws prevent the dissemination of user data and information to third parties. If your program uses user location, identity, or other data, it is necessary to review the laws that may apply to your application. In some cases it will be necessary to inform users prior to purchase of the use of their information in connection with the app.

    2) Use of Music. It should go without saying that any music used in your game needs to be licensed to you or owned by you. Normally I would have stuck this in the IP section, but the SDK agreement makes a specific provision for this.

    3) Use of Open Source Software. Any use of open source software requires compliance with open source licenses. The SDK Agreement takes an additional step by requiring that the use does not in any way contaminate the SDK code. There is an argument that this additional language is superfluous, but to be safe you should review the license for any open source code to ensure that it is covered by an approved open source licenses (GPL, BDL, etc).

    4) Rejection of your App. Apple reserves the right to reject your application for the app store. The reason may be based on non-compliance with the SDK or other developer agreements, or because the application does not otherwise comply with marketplace demand. It may even be based on your app competing with other Apple products.

    For more strange contract policies that upset some users, follow the jump.

Marketing to Women Gamers

March 13, 2009 Women in Games No comments

            ”There is no definition of a female gamer, and trying to tack a label to them does a disservice. The female gamer is simply a female who plays games. She’s just as diverse as any other market out there.”—Sheri Graner Ray

    Recently a GameStop training video made it to YouTube. It apparently isn’t a joke or hoax, although after the first minute one couldn’t help but hope. It seems strange that the demographic responsible for making 85% of all consumer buying decisions should be considered a “new breed of consumer” that remains a mystery to “over 50% of the population”. According to U.S. censuses women outnumber men, so I can only guess that those statements are meant to be hyperbolic.

    What is truly bizarre is that most of the marketing and handling points made in the video are not gender specific. Up-selling applies to both sexes. Consumer buying behavior such as the “hunter” versus “grazer” oversimplification applies to every purchaser for every kind of product. There are marketing and selling techniques that work more effectively on women than men, but GameStop didn’t really nail any of them. In fact they missed two of the major points by assuming that most women aren’t really interested in game products and generally insulting the intelligence of most female purchasers (not to mention their employees).

    Most industries, particularly media industries, are familiar with marketing towards women. The games industry is certainly getting better at it. According to the ESA, women represent approximately 40% of the gaming population. Most of those women are over 18. Other studies suggest that the numbers are even higher. Women also account for almost 45% of all consumer electronic purchases in the U.S. So how are games being marketed to women? What techniques are proving most effective? A December 2006 study conducted in Madrid in sheds substantial light on the topic and is worth reading if you plan on appealing to the female market. 1,788 surveys were used in that study.

  • Keep it casual. There is some evidence that most female gamers are attracted to casual games. According to a September 2006 study by Parks Associates, 59% of American consumers who play on mobile phones are women. Simple, casual puzzle games are frequently cited by studies and analysts as being less threatening and/or more attractive to women. Independent developers are already well-positioned for exploiting this market. It’s also worth noting here that according to the Madrid study, 72% of female gamers play on PCs. Other studies, including national statistical leisure studies for the UK, contend that women have less leisure time than men. Games that offer greater rewards for less commitment may therefore be more attractive to women.
  • Co-op is a good idea. When women aren’t playing against the machine, they prefer to play with friends or family both online and off. 38% of the respondents to the Madrid study play with friends and family. Furthermore, studies show that women prefer to engage in social activities during their free time. Co-op games allows for players to use games as a fun and social event.
  • Get a female opinion (preferably several). Every marketing plan requires analysis. That means evaluating your product’s strengths, weaknesses, competition, and audience. Test and market pools are therefore a necessary evil when selling a product. One of the key factors to marketing to women is determining what women look for in game titles. If you want to make a shooter but you still want it to appeal to women, determine what other game elements women consider. Preferences cited by the Madrid study include problem-solving, strategy and puzzles, cooperative and interactive games, female lead characters and elaborate plots.
  • Emphasize the preferred elements in marketing materials and in the course of sale. If you are designing marketing materials for women or if you are a retailer selling to a woman, do not over-emphasize features that lack any kind of appeal to women. The purchaser needs to know why the game is valuable to her. Listing the standard game features without highlighting the features attractive to her won’t help you make the sale.
  • Don’t assume that women won’t like your game. Never assume that girls will not play your game. Women play Gears of War, Resident Evil, Street Fighter, Call of Duty, GTA, and every other shooter and sandbox game out there. Women belong to clans, guilds, and other online teams. Women compete in Professional Gaming events. There is a very good chance that if your game achieves any level of success, some girl out there will play it. There is always the potential for a female audience and it is folly to completely ignore that audience. Knowing your female audience is more important than merely acknowledging that a general female audience exists.
  • Employ women to sell your product. Women are generally less threatening to other women and are better able to communicate with other women. Purchasers, in turn, are more likely to buy from someone who speaks their language and understands their needs.

    I’ve included the video for a laugh but it’s ineffective, embarrassing, and unprofessional. Calling women a “new breed of consumer” is patently ironic. Women aren’t new to the game market and they certainly aren’t new to consumerism.

Copyright Registration

March 10, 2009 Intellectual Property No comments

    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.

During 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. 
            1) Work Being Registered. This section sets out the type, title, and publication information concerning the registered work. The type is based on what you're submitting—if you're submitting a completed copy from a gold master you will probably register it as a Performing Arts work. If you're submitting documentation and code you will probably register it as a literary work. The title is the designated name of your work. The benefit of the title portion is that it allows you to list "additional titles" at (literally) the click of a button. If you're registering an unpublished collection or a single published collection (i.e., a collection of games you want to publish as a package) you can list each game title separately. The publication information is only relevant if you've already published the work in some way—i.e., by distributing the game via your website.

        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.

After Registration

  • 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.
« Older Entries