There are a few challenges here. It is normally highly doubtful that a
copyright style of protection alone will be effective protection for a
game where it is the idea rather than the specific outcome that is
important.
This then leaves a person with little money in a somewhat hopeless
position. It is still a challenge once the "protection" has been
obtained to then persuade backers etc or interest game companies and
they then will be less interested if there is negligible protection. As
I understand used to be the case the game companies used agents who you
need to approach and there used to be a standard fee to them to
consider the game.
For a person with modest means, they still must have some searches
conducted in the patent records (I recall monopoly was patented back in
the mid 30s) simply to establish there is a chance of novelty etc.
Normally it is best to hold off doing anything including publishing
anything until a sufficient amount of money is available to do these
thing s at the beginning well. It is still tough afterwards but not as
tough if there is no effective protection.
Hope these few comments help.
Howard Schulze
On 11/06/2005, at 1:55 AM, Kathleen Williamson wrote:
> Hi all:
> I haven't seen the tangible or fixed manifestation of this idea yet,
> but the question is coming my way. I realize it has to be more than
> an idea. Client has a game that she wants to present to game
> companies. Does this call for a patent or a copyright?Client doesn't
> have a whole lot of money up front, so if its fixed in a booklet
> format with drawings and instructions, etc., can the idea itself be
> protected in a simple copyright, i.e, before going the additional
> expenses of patents?
> thanks,
> Kathleen Williamson, Attorney
> Tucson, Arizona
> kgw[_at_]dakotacom.net
>
>> ----- Original Message -----
>> From: Lalpdx1[_at_]aol.com
>> To: CNI-COPYRIGHT -- Copyright & Intellectual Property
>> Sent: Tuesday, June 07, 2005 2:30 PM
>> Subject: [CNI-(C)] Re: Software Screen Shots
>>
>> Of course, the best way to prevent liability over use of the logo and
>> screen shots is to obtain written permission. This tactic also
>> avoids the need to rely on somewhat unpredictable legal defenses to
>> copyright and trademark infringement. Note too, that some software
>> companies list permitted and/or forbidden uses on their licenses
>> and/or web sites, and you might check this out.
>>
>> If obtaining permission is impractical, then you need to consider the
>> proper way to use the logo (which subject I'll leave alone), and then
>> the copyright issues involved in use of screen shots. "Fair use"
>> comes into play as a defense to a potential copyright lawsuit.
>>
>> As an initial matter, the graphical user interface produced by a
>> computer program can fall under copyright protection except to the
>> extent it is merely functional. Your software's screens might
>> contain factors such as color, originality, idiosyncratic elements,
>> etc., that might well make them projectable creative "expressions" of
>> a function or idea. I'd assume this, to be safe.
>>
>> There are four traditional (and now statutory) factors that are taken
>> into account in weighing whether a particular use of copyrighted
>> materials is a fair use. The factors include:
>>
>> (a) the purpose and character of the use, including whether such use
>> is of a commercial nature or is for nonprofit educational purposes;
>>
>> (b) The nature of the copyrighted work;
>>
>> (c) the amount and substantiality of the portion used in relation to
>> the copyrighted work as a whole; and
>>
>> (d) The effect of the use upon the potential market for or value of
>> the copyrighted work.
>>
>> Courts once considered any commercial use to be presumptively unfair,
>> and this often ended the analysis. In 1990, however, the Supreme
>> Court reversed a 6th Circuit decision for using just this
>> presumption. All factors must be considered in weighing the factors,
>> and use of commercial nature is properly just one element to be
>> considered in determining whether a use is fair use.
>>
>> Unfortunately, while there exist many cases in which courts have
>> weighed the fair use factors to determine whether a particular use is
>> a fair use, there are scant few that have addressed uses of screen
>> shots derived from computer programs.
>>
>> I'd look up two cases that should give you an idea of how courts
>> might handle a fair use analysis based on the above factors. One
>> specifically addressing the use of screen shots (from game software)
>> is Sony v. Bleem, 214 F3d 934 (9th Cir 2000). Another (addressing
>> photo images copied between web sites) is Kelly v. Arriba Soft Corp.,
>> 280 F3d 934 (9th Cir 2001). The courts in both of these cases found
>> fair use under circumstances that seem far more problematic than
>> yours.
>>
>> Lawrence A. Locke
Received on Tue Jun 14 2005 - 00:00:00 GMT