Famous Last Words Oct09

How Far to Go to Protect Rights to Your Work (October 2009)

Dear Jim:

I'm currently in college working on a bachelor's degree in Computer Science. I expect to graduate at the end of next year. Once or twice a month, I post my thoughts on game design on a personal blog. These thoughts range from game pitches to UI design. I can control who can view this design blog, as well as whether search engines index it.

I've put an "Attribution-Noncommercial-No Derivative Works 3.0 Unported" Creative Commons license and a copyright notice line on the design blog in an attempt to protect my ideas. I have been told that a Creative Commons license will protect the words, but not the idea presented by the words. If I weren't a poor starving college student I'd put patents on it all, but even if I had the money, when you're coming up with a new idea every week it becomes impractical.

Thing is, I don't particularly care about making money off of specific ideas from the blog. All I care about is the ideas being attributed to me. That is, if someone stole an idea of mine from the blog and made money off of it, I wouldn't want to sue for damages. Instead, I'd want to work with them to perfect the idea.

In December 2007, Johnny Lee released a video on YouTube called "Head Tracking for Desktop Virtual Reality Displays using the Wii Remote". That video alone now has more than 7.4 million YouTube views. It's been picked up by Engadget, Slashdot, Joystiq, Gizmodo, and many others.

Johnny Lee is now working for Microsoft on Project Natal.

I realize that the above is an idealized "success story" and that that video was only his most publicized work among many others, but it does prove that it is conceivably possible to use the public nature of the internet as a driving force on your resume.

I hope to use my design blog as a kind of portfolio. For example, I use LinkedIn.com (a resume-oriented social network) and have put the URL to the blog on my profile. Potential employers that view my profile can access the blog, read my posts, and through that gain great insight into my design abilities and style. I guess you could call it the designer equivalent of an artist using their deviantART account as part of their portfolio.

Despite starting the blog in 2004, it hasn't been completely indexed by search engines yet. I still have time if necessary to block access to search engines and/or the general public. However, if I remove access, then I have no way of proving that the ideas I posted were mine in the first place. There won't be any accountability once they're offline. I am also considering submitting the blog to the Internet Archive, making its presence online permanent and immutable. Additionally, I have the option to mass-publicize the blog. If the Internet at large were well aware that I wrote those posts, in theory, it would be good publicity for me and would serve as a deterrent against stealing my ideas.

I realize that "going public" is a huge risk unless it's done properly. However, I want to hear your thoughts. Basically, I want to know if this is a terrible idea.

Is the idea of using a blog as part of a design portfolio a sound one in this industry?

Do I own what I post on the blog?

Should I remove search engine and/or public access to the blog?

Thanks,

Jonathan

Dear Jonathan:

Thanks for submitting your question - which is by far the longest question received since this "Famous Last Words" column started eight years ago in December 2001 (Happy Anniversary coming soon to us)!

The answer to your question, in the end, comes down to what is the purpose to your posting the blog of your work.

There certainly is an inexpensive way to protect your ideas. That way is through trade secret law. But to enforce a trade secret may defeat the purpose of the blog!

A trade secret is any idea or information or material, whether or not it would be protectable under copyright or patent, that gives the owner a commercial advantage.

The problem is the only way to protect a trade secret is to require everyone who is given access to sign a strict NDA in which he or she agrees to maintain the secret nature of the ideas and information.

When the material is exposed without the protection of such an agreement, it is no longer a trade secret and that protection may be lost.

By posting your material on a blog, even a limited access blog, and not requiring readers to agree to maintain the contents in confidence, your ability to use trade secret law may have been lost. Even if you had required readers to "click-through" a strict trade secret/NDA agreement before they were given access to your material, the public forum nature of the blog, and the more lax policing that may accompany it, could defeat any attempt to claim the material is trade secret.

You must treat your information as a secret, and police its disclosure, or else that protection may be lost.

On the copyright front, I am glad to see you are applying a copyright notice to your work. While copyright applies to every original work of authorship, from the moment it is fixed in a tangible form of expression (like your written words and illustrations on your blog), the copyright notice is a reminder to the world that you claim ownership of your work.

Correct forms of the copyright notice for your 2009 entries would be:

© 2009 your name - or -
copyright 2009 your name - or -
copyrt 2009 your name.

You are correct that you own your own creative expressions, that is, until you sell or otherwise pass them along (or are an employee and such works are created in the course of your employment). And copyright protects only the expression of your ideas, and not the ideas themselves. If you publish a design document for a racing game, this may not prevent someone from taking ideas presented in your work and implementing them in another design document, or executing them in a game.

A direct and exacting implementation of your detailed design may be regarded as a "derivative work" of your design, and therefore be an infringement of your copyright. But adopting random ideas taken from your designs into a new work may not meet that threshold to be infringement.

There is case law in Hollywood going into when ideas or stories taken from a screenwriter pitch, script, or even cocktail party conversation and used without permission or compensation, were infringement and subject to compensation.

The standard appears to shift over the years, but a general principal seems to be if there was an expectation at the time the ideas were shared that the writer would be paid for their use, then he or she may not be able to stop the taking, but is entitled to be paid.

If material were to be presented in a pitch meeting, it might be so protected. However, if the ideas were presented in a setting where there was no tacit agreement of compensation, the cocktail party chit-chat scenario, for example, the writer may be out of luck.

In your case, to the extent your material is posted online, and is generally accessible, you may fall in the cocktail party category.

If access were to be tightly controlled, with the web site contains statements protecting the work, for example, "This website and all contents and ideas are the confidential property of Jonathan and are not to be used without permission. All rights reserved," you may get a higher level of protection.

Of course, with free access, if someone does take materials or ideas, you are left with an unauthorized user and your only (expensive and uncertain) option may be to sue.

Both copyright and trade secrets provide uncertain protection in your circumstance. The best I believe you can do here would be to provide for a strong click-through in which the reader agrees that the material presented is a trade secret owned by you, agrees not to share it with anyone else, and acknowledges that unauthorized use would cause you harm. An experienced games industry lawyer could prepare that for you.

Maintain the copyright notice. I believe you may be able to get a little more protection by adding the "This website and all contents and ideas are the confidential property of Jonathan and are not to be used without permission. All rights reserved" notice to the copyright notice block. And both notices should appear at the bottom of every page. The goal here would be to provide that any pages printed from the blog contain your notice.

We've identified a few ways to protect your material online. However, as a student looking for a job when you graduate, you must weigh the value of imposing restrictions on access with the possible benefit of inviting in the public (and perhaps a future employer, too).

The greatest value to your thoughtful work may be to show a future employer your ability as a team member. That may outweigh any direct commercial value to be gained by imposing controls and conditions on access.

In the end, that is a determination only you can make.