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I'm a indie/hobbyist game developer. How do I check that I'm not infringing any copyrights or trademarks when I release my game?

I'm not making megabucks so it's not financially feasible to get professional legal help for each game.

I asked recently if I can reuse the name of an old arcade game (Crazy Balloon), but this got me thinking about future games where I might not even be aware of something similar that existed before.

So, are there any tools or resources that you can recommend to check myself (due diligence I think it's called).

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4 Answers

In the United States, the USPTO's TESS service lets you search trademarks.

Not violating copyright is trivial - do not copy a work unless you have explicit permission to.

In the United States, due diligence is not a practice that applies to individual creators and performing due diligence improperly (i.e. without a lawyer or licensed authority) rather than not doing it at all puts you at greater financial risk.

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+1 Especially for the bit about improperly performing due-diligence. –  Noctrine Jul 17 '11 at 20:07
    
There's an app for that: getquisitive.com –  Dogweather Aug 27 '11 at 7:39
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The first step is understanding the difference between copyright and trademarks.

Trademarks are a system for marking (distinguishing) one type of goods from another. [quote]From Wikipedia: A trademark, trade mark, or trade-mark[1] is a distinctive sign or indicator used by an individual, business organization, or other legal entity to identify that the products or services to consumers with which the trademark appears originate from a unique source, and to distinguish its products or services from those of other entities. [/quote]

Google is a trademark. The trademark ‘Google’ is not copyrighted. You cannot copyright words, nor can you generally copyright name. You can copyright characterizations. For instance, you cannot copyright ‘Harry Potter’, however, ‘Harry Potter, a wizard, etcetera’ can be protected. At what point is a bit murky. Example: it isn’t enough that ‘Harry Potter A’ and Harry Potter B’ both be boys. The movie Troll (1986) introduced the name Harry Potter, years before the book. Further, even though there are over 100 various Harry Potter trademarks now associated with the Rowling’s character, these trademarks cannot prevent anyone from having a character named Harry Potter. What they can prevent is the use of the phrase Harry Potter to mark any conflicting goods. Stay with me a bit here.

Troll is being remade. Even though the makers of Troll did not trademark Harry Potter, they can still use the name. What they cannot do it infringe on various ‘Harry Potter’ trademarks and call their movie Harry Potter Meets the Trolls, or Harry Potter VS Trolls, etc. This is not a matter of who used the name first. Trademarks protect how your goods (product) is represented in the marketplace.

An additional aspect of trademarks to remember is that trademarks are by area. So even if you find a trademark with the same name it may not prevent use if it only covers an unrelated area. For instance, registering a trademark for ‘Vehicles’ doesn’t mean someone cannot use that same word or phrase for clothing. This is why if one looks carefully at X-Men trademarks you’ll see various types of separate registration by Marvel/Fox/Etcetera to cover, not only comics, but entertainment, toys, games, and even cakes.

Copyright protects intellectual property. What some refer to as artistic or creative expression. Literally, it is the copyright owner’s right to control who can use the artist’s work. A list of the users of this site wouldn’t fall under copyright, but certain expressions of that list might. The standard example is that the information in a phonebook, the data, is not protected, but the form and layout may be.


The easiest way to avoid trademark issues is to make up something. That’s what Google did. You’ll still have to check to make sure someone else didn’t make it up first. Combining words can help, Balloony, Ballunacy, Ballunatic Attack, etc.

The easiest way to avoid copyright issues it to make your own art from scratch. Or Google copyright free, public domain, free art, royalty-free etcetera. Non-professional artists are often quite willing to allow you to use their artwork if you ask permission.

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Recently I saw that EA Games has game in App Store called Tetris. In the seller description it says the following:

Seller: Electronic Arts Inc. Tetris ® and © 1985~2011 Tetris Holding. Tetris logos, Tetris theme song and Tetriminos are trademarks of Tetris Holding. The Tetris trade dress is owned by Tetris Holding. Licensed to The Tetris Company. Game Design by Alexey Pajitnov. Original Logo Design by Roger Dean. All Rights Reserved. Tetris Game Code © 2011 Electronic Arts Inc. EA and the EA logo are trademarks of Electronic Arts Inc.

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I don't think there is any quick way to check license infringing. But, there are way to avoid it.

  • first just don't google around and download stuff from where ever you hit. If you like any content, then look for license agreement around the download page. If you don't find any then look for contact information and ask them about it.(only if you know that the hosting site owner, is the owner of that asset)

  • secondly, never ever download from file sharing web site or torrents. Like rapidshare, megaupload, demonoid etc etc. They just host the file. There is no way to know who does it belong to or where did it came from.

  • it always ,a wise decision to ask a lawyer, but as you said, it not possible for every indie developers out there. But, sometimes if you get confused(very frequently) then you should go for it. Save you ass before its busted.

  • lastly, don't ever assume its ok to use it. License infringing can end up in jail time and/or fine(depending of the country you are in).

  • sometimes, some decent attitude can lead to indecent situation. Like if you name your game "X Edge", then Edge Game can sue you. Like they did to EA for the game Mirrors Edge. Edge game lost the case.But Edge games don't allow anyone to use the word Edge to any games.

BUT, this goes for game resources, FOR GamePlay patent you should read this. I know may sound weird at first, but Mitch Lindgren gave us a nice answer over there.

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Edge Games not only nearly lost that case but all claims to their trademarks - effectively, the court would have ruled they did not have them in the first place. The settlement ended in approximately the same result. You cannot base your business around avoiding intellectual property trolls - that's what makes them trolls. –  user744 Jul 17 '11 at 16:17
    
@Joe Wreschnig Your comment is an extension of my answer. How come downvoting sounds logical to you? –  iamcreasy Jul 17 '11 at 16:35
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Because it has no useful resources until the last bullet point, where you completely misstate what happened (Edge did not lose and you can use Edge in any games you want) and then miss the point. –  user744 Jul 17 '11 at 16:42
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