IP Rights SIG/Methods of Documenting and Labelling Your Work

International Game Developers Association

[edit] Methods of Documenting and Labeling Your Work

In an industry that is all about making impossible worlds come to life, bookkeeping tasks may seem dull by comparison. Nonetheless, these tasks are as much a part of a programmer's, artist's, or manager's responsibility as any debugging session, concept sketch, or milestone.

Many intellectual property rights in game development either protect, or have a scope defined by, documentation. Penalties and other recourse for infringing on these rights often increase when the holder of the IP rights can prove intentional infringement. Documentation and labels play critical roles in protecting:

Individual game components (such as graphics, sounds, storylines, and source code) and assets from which they are derived;

Tools, technology and processes used to create the game (such as might support patent applications); and

Finished products (such as the game itself, as sold to consumers).

The following issues should be addressed, implemented and included when documenting and labeling content regardless of level of integration and usage.

Content authorship should be attributed to the author, both on a per-object basis and in the final product ie credit.

Proper credit listing of author should be listed in all finalised product and merchandising containing the content. This must be negotiated between content provider/author (object or final project) and content consumer (developer, publisher, distributor, etc.).

Ownership must be determined, negotiated and fully and completely documented. In other words was the content created as a work for hire, a license, a buyout purchase, etc. This is critical for copyright filing, pricing, licensing, repurposing, usage, distribution, and other business purposes.

[edit] Reasons to Properly Document and Label Your Work

Properly documenting and labeling your work is important for several reasons.

One is the desire for an author of creative content to be recognised for the work he or she produces. Even content created as work-for-hire remains a creative work attributable to its author. This attribution, whether acknowledged in the game credits or merely recorded in a "source file" creates a lasting record of the author's contribution to the work.

Another set of reasons relate to establishing intellectual property rights. By "staking" authorship of the content you create, you are attesting to the work's originality and source authorship. Should an intellectual rights issue arise from the code, music, art or sound effect you provided, the content consumer has proof that you, the content author, produced the content in good faith as original work for the stated purpose.

Of course, an unethical person (for example, a plagiarist or forger) might deliberately mislabel work. When such cases come before a court, willful misrepresentation often carries harsher penalties than accidental misrepresentation. The actual penalties vary from case to case, jurisdiction to jurisdiction, and according to whether copyright, trademark, or patent has been infringed.

For any individual or company searching for venture capital, distribution, publishing or other alliances, the ownership, documentation, and usage rights of IP are critical factors and sources of potential exposure and/or lawsuits. Without proper documentation of your rights, venture capitalists, private investors, distributors, publishers, and alliance partners may hesitate to enter into a business relationship. A policy of accurate documentation and labeling contributes not only to your sense of ownership, but also to your security and marketability.

[edit] Documenting and Labeling Game Components

The work of content authors and programmers is part of a game, not the whole. As an individual content contributor providing content to a collective work (the game), you are afforded certain legal protections under Copyright Law, as well as professional and negotiated courtesies including credit listing of your work in the final product, and credit listing in all derivative products or versions utilising your work. Even when the authors are acknowledged in the game credits, these credits seldom provide details of who created what.

[edit] Labelling Game Components with Metadata

The big question is how we ensure our work is attributed to the author properly at the object or component level. Surprisingly, documentation at the object level is often simple to implement. Many "off the shelf" content authoring and editing tools (Pro Tools™, SoftImage™, 3D Studio Max™, game engines, and others) allow the author to include "metadata" at the object level. Tools with metadata (or comment) support give you the ability to "imprint" your attribution information into the actual object level content as text. This text is not displayed when the asset is rendered, but typically shows up in a Properties or About box when the asset is loaded into editing software.

Generally, metadata is a definition or description of data. Tags are provided for each type of data, so that a search engine can easily search by "Title", "Author", or other criteria. The metadata application of interest to game artists and programmers is the ability of metadata to annotate the object level content.

EXAMPLE

Title: Music Score Main Title
Author: David Frederick
Engineer: Crazy Joe
Project: Action Adventure Game ˆXYZ Game Company
File Type: .wav
File Properties: 16 bit 44.1 kHz Stereo
Copyright: © 2003 DFMG
Comments: Limited Use in PC based version ONLY.
URL: www.dfmediagroup.com

In many cases, metadata travels with the content throughout its life unless explicitly removed. Metadata doesn't prevent plagiarism or unauthorised copying, but it does identify your work and its authorship to honest professionals.

Each content authoring tool has its own specific supported metadata attributes. The bare minimum is a free-form comment field, into which you can enter arbitrary information. The next level of support generally includes fields for name/author, comments, and file type. What is important to understand is that this is your chance to apply your signature/label digitally to each individual content object. Content aggregation tools may also provide metadata support, in which case entire levels or packages can be labeled.

In many cases, object level content is created by one or more authors, and then may be modified by several others before the game is completed. For instance two artists may be involved in creating the 3D model and the textures, an additional artist may add multi-texturing effects, and another artist may create LODs of the object. If metadata is used to determine authorship it should include all those who have contributed original work to the object.

[edit] Copyright and Game Components

Whether or not your authoring tools support metadata, it's often in your interest or that of your consumer to label assets covered by copyright law with a copyright notice.

Copyright protection is automatic; there is no legal requirement to label the work. The copyright applies as of the date of publication (general distribution) of the work, and lasts for decades - generally well beyond the commercial lifetime of most works.

Your contract or employment agreement may dictate who owns copyright to the assets you create. The copyright notice should accurately reflect ownership. It is strongly advised to have all copyright or licensing agreements attached to the content creation agreement to ensure full compliance and ease of access for reference and filing.

Whether or not you have registered your copyright with the government, the same form is used for the copyright notice. Here's how it looks:

Do not use ( C ) instead of the copyright symbol © - it doesn't always have the same legal standing. Do not abbreviate the word "Copyright". You must use either the entire word "Copyright" or the symbol © in the notice. (The US Copyright Act Section 401(b) allows the abbreviation "Copr." to be used.)

If the work is unpublished, use:

Your authoring tools may provide a metadata field for copyright information; if so, that is where to put the copyright notice. Otherwise, put the notice in the comment field, or less preferably in the author field. If your tools or file format don't support metadata, create a text file listing the assets covered by copyright, along with a copyright notice.

[edit] Documenting the Creative Process

Some people are so creative, and work in such mentally stimulating environments, that they solve a challenging problem every hour. Other people have sudden flashes of insight while washing dishes or chasing their dog. Still others work diligently and systematically to discover a formula, perfect process, or arrive at a particularly pleasing arrangement of words, sound, cloth, paint, or movement.

Ah, creativity!

It's one thing to solve a problem, and another to make money from your solution. As others find out about your solution, they'll assess (like pirates on the high seas) two things: the value of the treasure, and how well you have guarded it. The results of this assessment will determine their actions toward you. Their actions will range from unapologetic theft to offers of lucrative contracts and licensing arrangements.

Both facts and appearances matter. Both of these have their roots in proper labeling and documentation of your work.

In all matters related to intellectual property, whether in the brainstorming phase or final production, it's worth retaining dated records of your activities, including personal notes. Documentation "proves" that an idea is yours; that you thought of something before anyone else; that you were the first to invest time and money to create a product based on your idea; that you conceived and developed the idea versus copied it from somewhere else.

Labeling puts profiteers on notice that you've established legal rights over your work: the treasure is guarded. Effective creative labeling can also introduce fear, uncertainty and doubt into your enemy's assessment: a mysterious defence that intimidates.

[edit] How to Prove An Idea is Yours

Ideas are intangible, and move quickly from mind to mind once communicated. Nobody can prove beyond doubt that they were the first to conceive a specific idea.

Fortunately, with a little work anyone can legally establish a date certain, on or before which they most certainly conceived the idea. When two parties fall into legal dispute over the use of that idea, the courts often favour the party establishing the earliest date of conception.

Here are three tips for establishing your idea's date of conception.

[edit] Keep a Log Book.

This should be a real, bound or continuous spiral book of ruled paper. It must not be an open spiral or 3-ring bound - you want anyone who sees it to accept that no pages have been added (e.g. back-dated) or removed. Do not use books with perforated pages. Do not use blank books; ruling or grid marks help to establish that you haven't added information later "between the lines." The ruling should be light blue, rather than red or black, and you should write or draw only in black or dark blue ink, to facilitate photocopying.

On the very first page, write a title such as "Development Log Book", your legal name, and the date that you began using the book; do not write any ideas on this page.

Each day that you have an idea, begin a new page of the book. Don't use leftover space on the previous page, and don't leave any blank pages! As you have ideas, write them in the book, describing them in some detail with words, sketches, or both. Write the date at the top of each page, and sign the bottom of each page. Try to use the same pen for all of the writing on each page. Don't leave any blank space on the page - if you have blank space on a page at the end of the day, lightly cross-hatch the space with your pen. Don't fill space with solid colour or dense crosshatch, or it will look like you're hiding something. Your goal is to create evidence that the cross-hatched area was never used, and never will be used.

It's OK to use more than one page to describe an idea, and it's OK to put more than one idea from the same day on the same page.

Since all of your great ideas are in this log book, keep it locked up. Just like you don't want your little brother reading your diary, you don't want the cleaning staff reading - or stealing - your log book. If you are traveling it is best to take notes in another book, and transfer to your log book on your return.

When your log book fills up, save it in a fire-proof safe deposit box. If you are working for a company, then the company should employ similar protection.

[edit] Get a Witness.

Even if you don't keep a log book, you should write down your really good ideas in ink, then sign and date the description.

Next, find someone who's capable of understanding the idea. Often, co-workers are a good choice; often, competitors or people with whom you plan to sign contracts are not. Show your prospective witness the description you've written, and ask if he understands the idea. If he doesn't understand, find a different witness or rewrite the description - don't just answer questions verbally without updating the description.

Once the witness understands the idea, have her write "I understand this" and sign and date the document. You want two things to be clear: the witness admits to understanding the idea, and it is your idea, not the witness'.

[edit] The Ten-Dollar Timestamp.

You can't always find a competent and trustworthy witness for your ideas. In these cases, you might be able to use your government's postal service as a witness. Write your idea down, either by hand on stationary, or using a computer-based word processing or drawing package. Now, get hardcopy, or burn it to a CD. Find a suitable envelope: one that will protect the contents, that seals securely, and that cannot be opened without visibly damaging the envelope. Put your hardcopy in the envelope. Address the envelope to yourself.

Take the envelope to the post office, and send it via certified mail with a return receipt. (For those not in the U.S., this is a mail service that causes the post office to mark the package with the day it was sent, certify that the package was sent on that day, and also to inform the sender of the day on which the package was actually delivered, and who received the package). This service costs about ten dollars.

When the package arrives, do not open it. Ever. Save it in a fire-proof safe deposit box. The only time you will ever open this package is when you need to prove the date on which you conceived your idea, and then, only in the presence of a judge. The post office doesn't lie!

[edit] How to Prove It's Not Just An Idea

A German proverb says, "The proof of the pudding is in the eating." The proverb applies well to intellectual property: anyone can talk about their recipe for pudding (an idea), but you need to make the pudding to actually prove it works and tastes good.

Your intellectual property rights, whether copyright, trademark, or patent, are contingent on proving to the government that you have a basis for commerce (something that can be bought and sold), of your own creation (original, not stolen or copied verbatim from someone else). Documentation plays a crucial role in establishing these contingencies as facts.

Here are three techniques for creating the documentary evidence that proves your creation isn't just an idea.

[edit] Build It.

Physical reality is pretty compelling evidence that you've taken your idea into the practical realm. Write the story. Draw the image. Compose, arrange, and perform the music. Code and test the algorithm. Build the machine. Construct the design.

When you're done, print hard copy, take pictures, burn it onto a CD-ROM, or store your creation in a safe place. Use either a live witness or the postal service to establish the date of construction.

If you use a live witness, make sure the witness sees your invention in action and understands what your invention does. If it's a painting, the witness must view it. If it's a book, she must read it. If it's music or performance, she must witness the performance. Write up a simple document stating that on this (specified) date, in this (specified) location, the undersigned witness saw a working demonstration of this (specified) invention created by this (specified) person; have the witness sign and date the document, and store it in a safe place.

[edit] Keep A Log Book (Part II).

Your log book is not just for documenting ideas; it's also invaluable for documenting the process that transforms your idea into a working demonstration.

Make sketches in your log book. Write down approaches you tried that did and didn't work, and every improvement that you made to the idea as you developed it. When you encounter a really challenging problem, make a log entry describing the problem. Make another log entry describing the solution you find. Sign and date every page, using the same rules you used for documenting ideas.

Remember, you must never leave blank pages in your log book. If you're working on several ideas, their histories will be intertwined in the log book, showing the incremental progress on each, rather than arranged as one contiguous block of information per idea. Although this may seem disorganised, it's exactly what you want to happen. Here's how you'll use this information as evidence:

If someone challenges your claim to have developed something, you can show the court the history of its development in addition to the original idea and the finished product. It's compelling evidence that you developed the solution through investment rather than by "a miracle" Or copying.

If your idea is patentable, the development history in your log book will give you and your lawyers many ideas for so-called dependant claims - variations of the invention that, although optional or inferior to the final invention, you can protect under the same patent.

[edit] The Detailed Design.

Some inventions are so grand in scale that the inventor can't muster the resources to actually build and test them.

Suppose you invent an Infinite Improbability Drive (if you don't know what that is, you must read The Hitchhiker's Guide to the Galaxy by Douglas Adams; do it - now). You're certain it will work, but can't build one because you don't have a bazillion dollars, hot tea, or access to a source of finite improbability. You can still, with a little work, "prove" that you really have invented it. Here's how.

First, draw up a detailed plan for building your invention. For music, this could be a complete musical score and arrangement. For a character, it could be a series of character study sketches. For a machine, it could be blueprints, component specifications, and operating procedures. Your goal is to describe what must be done so well, that someone of ordinary skill could do it.

To put it another way, your goal is to teach anyone who reads your plan how to build the invention. Don't leave anything out - no secrets, no deliberately misleading information. The only things you can leave out of your detailed plan are your ideas for improvements and optional features, and explanations of steps obvious to an ordinary artist, performer, builder, engineer, etc (whatever type of workman you need).

Within this plan you should call attention to anything and everything that distinguishes the resulting work from everything that has gone before it; the element or combination of elements that identify the work as uniquely your creation.

Once this detailed plan is created, use either a live witness or the postal service to legally establish the date. Print hardcopy of the plan, or burn it to a CD, and store it in a safe place forever.

Lawyers and the U.S. Patent Office call this kind of detailed plan constructive reduction to practice. It's often good enough to justify a patent, at which point you can find a wealthy investor to bankroll your development in return for a piece of the resulting commerce.

[edit] Labeling Finished Work

An intellectual property notice on your products lets everyone know they contain your intellectual property.

The notice is fair warning for honest businessmen (who might otherwise think the work can be copied or imitated freely). It deters dishonest businessmen (who might otherwise steal your idea without fear of legal reprisal). Both of these effects save you time and money, by reducing the number of intellectual property trespassers you have to take to court. They can also make you money, by helping to attract investors and by inducing honest businessmen to license your technology rather than designing around it or abandoning the market.

Here are the five most important kinds of labels for intellectual property, and how to use them. As with any legal issue, you should seek the advice of a competent attorney when selecting a labeling strategy.

[edit] The Copyright Notice

In the U.S. there is no legal requirement that you mark your works with a Copyright notice - copyright protection is automatic. The copyright applies as of the date of publication (general distribution) of the work, and lasts for decades - generally well beyond the commercial lifetime of most works. Whether or not you have registered your copyright with the government, the same form is used for the copyright notice.

To repeat from the Copyright chapter, do not use ( C ) instead of the copyright symbol © - it doesn't always have the same legal standing. Do not abbreviate the word "Copyright". You must use either the entire word "Copyright" or the symbol © in the notice. However, the US Copyright Act Section 401(b) allows the abbreviation "Copr." to be used.

Put the copyright notice on your source code, your images, your musical arrangements, your detailed plan, and all over the product: the CD, the CD jacket, the splash screen, both sides of the box, the software license, and the documentation.

If the work was created over several years, or was revised in a later year, list all of the applicable years. For example,

The copyright notice identifies the legal name(s) of the copyright holder(s). This may be individuals, a corporation, or a legal alias. For a business alias (doing-business-as):

If the work is unpublished, use:

[edit] Pending Patent Notices

In the US, "patent pending" and "patent applied for" are terms that refer to an actual pending application in the US Patent and Trademark Office. The term "patent pending" may also refer to a type of application called a provisional application that has been filed with the USPTO. A typical notice:

[edit] Patent Pending

Use this intellectual property notice when you sell your product before any patents have issued, but use it with care: in some countries, you forfeit your rights to patents if you offer to sell the product to anyone before applying for your patents. Companies that misuse this notice are subject to sanctions under US law because misuse of the terms is viewed as an attempt to deceive the public by claiming an aura of IP protection that the item does not actually have.

Put this notice on the actual physical object that incorporates the invention. If the object is a software program, put the notice on the disk and on the splash screen.

Use an alternative form of the notice on packaging and within documentation, to point to the actual object incorporating the invention. For example:

The WOW! Engine is manufactured under pending U.S. patents.

This notice tells the reader that they won't be able to determine what aspects of the product you've patented, because patent applications (in the U.S.) are secret for 18 months after filing or until the patent issues. Maybe the patents you've filed for will issue, and maybe they won't. Either way, the fear, uncertainty, and doubt created by the label "patent pending" drives most imitators within the reach of the law crazy: it's a downside they can't assess.

[edit] Notices for Issued Patents

If your patents have issued, or if you have licensed patented technology for use in your product, use this notice followed by a list of applicable patent numbers.

Manufactured under one or more of the following U.S. patents:

Include design, method, and process patents. You don't have to identify the owners of the patents, just patent numbers. You can list the patents on a single line, or in multiple columns.

Physically locate this notice in the same places you'd otherwise use "Patent Pending"

[edit] Trademark and Service Mark Notices

The trademark is a specific symbol of your business and its reputation. It encourages the buyer to make assumptions about your product, based on your past performance. The trademark notice tells the world that the specific mark preceding it uniquely identifies your company and its products. The label for a trademark the symbol of your business, followed by (superscript):

If the trademark has been registered with the government (in the US, with the US Patent and Trademark Office), use ®. Do not use ( R ) - it doesn't carry the same legal weight. For service marks (which identify a company's distinctive services rather than its tangible products), use (superscript) SM.

The mark is distinguished by its graphical elements, fonts, colours, arrangements, relative proportions, and spacing. The mark must be distinctive to be covered by law, and you must consistently reproduce the mark to exactly the same standards each time it is used. Never let a vendor of, for example, business cards, produce an approximation of your trademark. Always provide vendors with your own trademark artwork to use. Make sure that the artwork is a bitmap, rather than a meta-description of the mark in XML or HTML, since different software packages can render the mark-up differently. If the mark is expressed in encapsulated PostScript®, include any fonts used.

Always use your trademark in connection with a product name, and make sure that the product name looks different from the trademark. For example, in "XYZZY™ Password Generator" the trademark is XYZZY, and the product is a password generator. This helps prevent your trademark from becoming the "generic" term for all similar products - an event that would render the trademark legally useless.

Put the trademark and notice all over your product, along with the product name. Also place it on every ad, package, label, manual, and brochure.

Follow these policies when using your own trademarks and those of others in documentation:

When making reference to a trademark in documentation, use the ® or ™ symbol the first time the mark is referenced; it's not necessary to repeat the symbol on every reference.

On every unique piece of documentation that uses trademarks, include a footnote or other credit along the lines of:

"XYZZY and PLUGH are trademarks, and Plover is a registered trademark, of The Software Geniuses, Inc. Other product and company names mentioned herein may be trademarks of their respective owners."

[edit] Software License Notices

Once you sell something, you have no legal control over its use or resale. For example, you can't prevent a user from selling your game to someone else (although you may be able to seek damages for unauthorised copying under copyright law). If you want to control resale, or any other use of your game, or limit your liability related to use of the game, you should license your game rather than selling it.

Your customer has the right to see the terms of your license up front, and to accept or decline the terms. If the terms are declined, you have the right to refuse to license the game. For mass market products however the rights holder generally has no direct contact with the end user. Consequently, a game that is licensed rather than sold should, prior to first use:

Present the user with a license agreement clearly indicating that the software is licensed, not sold, and defining the terms under which you are willing to license the software for use

Provide the user with the option of canceling the transaction (getting a refund and returning the product) if they are unwilling to accept the licensing terms

Require the user to make a conscious action (such as scrolling to the bottom of the agreement and clicking OK) in order to accept the license terms.

Sound familiar? In the past, so-called "shrink wrap" software licenses have been used to convey licensing terms to the user; advances in communication technology now allow the transaction to be conducted on-line, often during software installation or startup. Consult with a competent attorney before implementing any software licensing technique.

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