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Berylstone Attorneys-at-Law is a young and powerful team that was established in 2017. Our approach is to provide comprehensive and highly-qualified support for our clients through new generation legal experts.
The core assets of Berylstone Attorneys-at-Law are the trust held in us by its clients, which is earned through hard work and the very reason why it’s duly valued. The interests of a client always take precedence over ours — that’s why Berylstone Attorneys-at-Law demonstrates strong name recognition, wins confidence and always comes recommended.
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In the less than two years of our existence, the firm has been nominated in the ranking of Discovery of the Year. Berylstone entered the top 10 Ukrainian Law Firms in the IP practice in 2018. It proves we’re growing up with our clients with every minute.
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The sphere of video games as an integral part of the show business industry is kicking into high gear and gaining new levels of development. The number of gaming industry fans is becoming bigger, and the age and gender frames of those who play video games is effaced. Ukraine is a young and progressive state that does not stand aside as confirmed by the number of computer game developers and corresponding programmers. Ukrainian video game developers are appreciated all over the world, as evidenced by their contribution to the creation of a number of popular video games like: Tom Clancy’s HAWX, Assassin’s Creed II, Assassin’s Creed: Brotherhood, Far Cry, From Dust, Metro video games series, Admiral: Sea Battles, STALKER, Cossacks: European Wars game series and many others. The reputation, product quality and its monetization is of great significance for developers of video games. All of this, of course, is directly related to the protection of intellectual property rights. So who can be interested in this?
Video game development is quite a complicated process, as this product cannot be created single-handedly. Someone creates a program code, someone else then draws characters or writes a script. It is important to understand who is the actual creator of a specific object of intellectual property. To begin with, there are direct creators of each particular object and subjects to whom the creators transferred the rights to their objects. In the second case, the new owners have a scope of rights that are transferred to them under the contract. Therefore, when you take a musical work, soundtrack, or its performance for your video game, you have to very carefully draw up a contract in order to get all essential property rights you need to use in your game. The owner of the game is the company, but in fact the program code for the game is created by programmers. Despite the fact that in most cases programmers do not claim recognition of their property rights to the game as a whole, they’re entitled to co-authorship and non-property rights to the game program code. A company that cares about its image should prevent the possible loss of its uniqueness by writing down all divisions of rights to objects that are created by its employees. Consequently, the company should not later discover the alienation of intellectual property rights to the character or code from the video game by its employees to someone else.
Under the law, in the course of a movie’s creation the copyrights hereto are initially distributed among five creators. This ensures a balance between the protection of movie as a product and the rights of each author. As there are no such guarantees for video games, and computer programs are protected as literary works, such guarantees have to be provided manually. The best way to do that is to develop a contractual system between the parties. It can be: labor contracts, non-disclosure agreements, works creation contracts, contractor’s agreements, services contracts, etc. In all cases it’s crucial to include and correctly write into contracts an intellectual property section that includes everyone engaged in the development of a video game.
What is a Video Game
Let’s decompose a computer game according to intellectual property elements under the law of Ukraine. As in other countries, the intellectual property objects used to develop a video game can be split into copyright and related rights objects as well as industrial property objects.
Copyright in a Video Game
The core of any video game is a code that refers to copyright objects under the Law of Ukraine On Copyright and Related Rights. What does authorship give us? First of all, it’s the scope of rights arising from the author. The creator shall possess all 1) non-property rights (related to the mention of the author as the creator of a program code) and 2) property rights (associated with the use and disposal of rights to the program code). In addition to the “game core”, copyright objects built into a game can also include musical compositions, scenery, characters, including the design of things that can be produced by the company for video game fans. As you can see, there are many objects in the game and all of them should be protected.
All rights to copyright objects arise for the author from the time of its actual creation. That is why video game developers have to initially buy out the rights to all copyright objects that are created by contractors/employees in the course of a video game’s development. For this reason, the video game developers have to conclude contracts with everyone engaged in the creation of any copyright objects built in the video game and prescribe herein the alienation of all property rights from the creator to video game developer upon the creation of appropriate object. Upon the receipt by companies of all copyrights to the objects created in the course of video game development, they should register the copyrights to such objects in order to get more sustainable protection. Copyright registration shall facilitate the authorship proving process. In order to use in a video game an existing character, design, composition, video game developers have to acquire all the rights to such objects from its creators. Should the former find themselves short of financial means for buying out copyright, they can enter into a licensing agreement with the author or rights holder.
Industrial Property Objects in a Video Game
Industrial property objects cover marks for goods and services, inventions, utility models and industrial designs. Despite the fact that the name of the game is protected by copyright as the name of the work, there are complementary protection levels for video game name: commercial names and trademarks. The difference is that the commercial name refers to a company name, while trademarks refer to the name of either its products or services. Nonetheless, trademarks are more important for video game protection as the issue is a product not a company.
A trademark can be registered in the form of any symbol, phrase, image, or inscription and image combination that will be used in the market for video game identification. Such a trademark shall be registered if it 1) does not violate the rights of others and 2) has a distinctive ability. There are many variations for registration: motto, character name, other inscriptions or images used in the video game. In this regard you should evaluate what exactly your competitors can copy and give this element legal protection in the form of a sign for goods and services. Although the registration of a trademark is a long process, it provides you with the exclusive right to prevent others from using the name in similar areas of activity. Therefore, the name has to be chosen correctly so that, firstly, it complies with legal protection requirements in the state of registration. Secondly, it is not similar to already existing trademarks, and ultimately it’s useful for promoting your game.
We’d like to mention a unique sound accompaniment used in a particular video game. This is the sound of the game’s launch or a phrase voiced in a special way. Unfortunately, sound trademark registration is impossible in Ukraine. However, the United States and the European Union provide such an opportunity. For example, SEGA registered for Sonic 3D Blast game the cry used during Tom Kalinski’s run, and Nintendo registered the sound effect of a coin for its Super Mario Bros game. We hope that in the near future, Ukraine will implement progressive and necessary norms to enhance the individualization of goods and services and development of the show business industry.
What about patents? Firstly, patents certify the rights to inventions, utility models and industrial designs. By registering a patent you receive a monopoly on the use of the patented object. Having a patent is a great privilege on the international market, which speaks for your good faith. As an industrial design, you can register any game object that has a special design. Such a design can be used both in digital form and in the form of a souvenir of the game character. And as a utility model/invention, you can register a special algorithm, innovative technologies that have not been used before by anyone. In the course of video game development, you also have to make sure that you do not violate the rights of other people. Otherwise you’ll start losing your reputation on the market.
The existence of video games is predetermined by its benefits for both developers and consumers. Authors or rights holders should pay due attention to protection of intellectual property. Such protection is appropriate for all elements of a video game, and for the concept as a whole. In the process of game development the main task of market players is to 1) not violate the intellectual property rights of others, 2) ensure the transfer of all intellectual property rights to their possession, 3) register all copyrights and other intellectual property rights in their name or the name of real beneficiaries.