Drunk Stumble

Bhoopalan

  • Posts: 1016
Surely it's your IP until you are paid and at that point it transfers?

Yes, isn't it correct? Even in case the idea was provided by the client, you should still release the game yourself as a compensation for the client not paying you isn't it?
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ceosol

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  • Posts: 2263
That is a gray area. I come from a science background. Anything we did was property of the primary investigator because it was his/her thought process that created it. That remains true even if you did 100% of everything on the project. Personally, I do not know how IP laws affect any other medium.

xplosion28

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  • Posts: 275
If you created everything that comes with the game, artwork, programming, and sounds.  It's as if the client never existed.  You are doing a "service" by making the game to the standards of the clients imagination, which is why they pay you.

Just because I imagined creating the biggest MMORPG (WoW) before it was created, does not mean I can sue them saying they took my idea.  Unless there is a binding document (which clearly there isn't since they didn't pay you) there is nothing they could do to you for posting it as your own.  If they paid you it would be an entirely different story.

The only thing that would stop you was if they actually had a patent on the idea, which I can almost guarantee they don't. 

merrak

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I did a little research out of curiosity, and the outlook is kinda bleak :(

It's worth reading the US Copyright Office's document on this issue, which specifies, "If a work is made for hire, the employer or other person for whom the work was prepared is the initial owner of the copyright unless both parties involved have signed a written agreement to the contrary."

I found a blog post that elaborates on the matter.

It sounds like the best thing to do is have a written agreement that specifies when the rights are transferred, and protects the employee's rights in the case of nonpayment.

ceosol

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  • Posts: 2263
This is where a lot of people get into trouble. Where is the written law that states what everybody is saying? You can't just bend wording to your favor because you want to or because it is morally or objectively "right". You can't always trust what you read on the internet, either. I failed many of my students when they used wikipedia as source material. Someone might have a misleading paraphrase when they wrote said wikipedia entry. You need to find the original article that claims certain facts and then use that as a source.

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Just because I imagined creating the biggest MMORPG (WoW) before it was created, does not mean I can sue them saying they took my idea.  Unless there is a binding document (which clearly there isn't since they didn't pay you) there is nothing they could do to you for posting it as your own.  If they paid you it would be an entirely different story.

This is false. If you imagined WoW and then advised Blizzard in its creation, then yes you would have a claim to some intellectual property. Without a specific contract with Blizzard, the court case would become murky very quickly. Blizzard would probably win in the end simply because they could hire more/better lawyers than you could. However, they would probably settle outside of court and pay you a nice chunk of change just to keep you quiet :)

On a legal website, I found this article:
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Who owns intellectual property created by independent contractors?

When you hire an IC to create a work of authorship such as a computer program, written work, artwork, musical work, photographs, or multimedia work, you need to be concerned about copyright ownership.

The copyright laws contain a major trap for unwary hiring companies. The hiring company will not own the copyright to the IC's work unless it obtains a written assignment of copyright ownership. An assignment is simply a transfer of copyright ownership. You should obtain an assignment before the IC starts work. This assignment should be included in the IC agreement.

There are exceptions to this rule. Certain specially commissioned works by ICs are considered to be works for hire, to which the hiring company owns the copyright. However, this rule is not automatic -- you still have to enter into a written agreement explicitly stating that the work is for hire.

They do not cite the legal documentation or precedence, though. So I still cannot be certain. Only a couple of my clients (one actually being an IP attorney) have written assignments of ownership. Maybe I'll shoot the IP attorney client an email and see if he would give me a free legal answer.

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It's worth reading the US Copyright Office's document on this issue, which specifies, "If a work is made for hire, the employer or other person for whom the work was prepared is the initial owner of the copyright unless both parties involved have signed a written agreement to the contrary."

Right, that is the same thing I saw. And that is what is scary about claiming ownership.

ceosol

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  • Posts: 2263
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Even if you own it, the hiring party may have dibs on part of the copyright as a co-author depending on the contribution, if any. And in some cases, a court may awards a nonexclusive license to the hiring party allowing use of the work. The fact that you didn't get paid shouldn't affect either party's claim to copyright. The non-payment is a contract problem, not a  copyright problems.

Quote from the second site that merrak linked.

It says basically the same thing as merrak's first link from the library of congress. Since the library of congress copyright office published that article, I would trust it to be true.

The client and I did go into the initial agreement knowing that it was a work for hire. What that boils down to is that they own the copyright on the game regardless of paying me.

xplosion28

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  • Posts: 275
I understand that they make many if these regulations to help protect the original creators, but it's sad to think you could make a great game (like Fez for example who had a similar problem) and maybe never allow it to see the light of day because of these legal problems.  There should be work arounds, stating how if the "original owner" isn't trying to come into contact with you after a certain amount of time, they should give up their rights to ownership.  Otherwise from the information you guys just got, it doesn't look like you could publish it without running into problems until your client states otherwise.

Good to know for future reference though.

ceosol

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  • Posts: 2263
The last time I tried contacting them was June 28th. If there is no response by the 13th, I'll start looking into maybe reskinning it and adding to/changing the mechanics a little. The only way around these things is changing the vision "enough" (which is also vague) that it becomes my own.

I had another client last year who didn't pay. I created completely new graphics and changed the level mechanics before releasing my own version. With new graphics and new mechanics, nobody would ever be able to say it was the same game. I made $180 on that one when the original unpaid contract was for $100. :)

Plus I want to leave it open for the clients to contact me at some point and pay for their game.

LIBERADO

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  • Posts: 2660
I'm spanish, excuse me for my bad English.
I'm not a private teacher. Please, post your questions in the public forum.

ceosol

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  • Posts: 2263
Advertisements. It was my most profitable advertisement-monetized game. :)

LIBERADO

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  • Posts: 2660
Advertisements. It was my most profitable advertisement-monetized game. :)
On mobile? Out of curiosity, I would like to see that game.
I'm spanish, excuse me for my bad English.
I'm not a private teacher. Please, post your questions in the public forum.

ceosol

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  • Posts: 2263
It was my memory game from early last year: http://www.stencyl.com/game/play/30151

The original version was modeled off of a similar game on facebook or something (I don't remember exactly).

ceosol

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  • Posts: 2263
I was think about this project today - wondering how I could change it to avoid the whole ownership issue. What about waterskiing? I could apply the same principles and just have you take a tumble in the water.

WitlessWonderer

  • Posts: 35
A waterskiing theme would be great.  What about a high-wire like at the circus?

noxtudios

  • Posts: 293
I vote for highwire more than waterskiing.. there really isnt any balance needed for water skiing..