One of the most heard video game publishing horror stories is that a publisher takes the intellectual property rights to your game. While this is very rare in modern day video games publishing, it is still important to carefully assess the consequences what a publishing agreement says about intellectual property rights and what the consequences may be.
Intellectual property clauses determine who owns the game, who may exploit it commercially, and who controls future developments such as ports, sequels, prequels, or spin-offs. Because these consequences often extend far beyond the duration of the publishing agreement itself, developers should approach this section with particular care.
In addition, it is recommended to also read the article that comes next in this series, on Future Games & Exclusivity, as these clauses are closely related.
Basics of intellectual property rights
The main areas of intellectual property
Video games are protected by several forms of intellectual property rights. The most relevant ones are:
| Intellectual Property Right | What does it protect? | Examples in video games |
| Copyright: | Fixed literary or artistic works that have a certain level of originality | Characters, narrative, artwork, soundtracks, source code, visual effects |
| Trademark: | Signs (words or figures) that distinguish goods and/or services | The name and logo of the game, (main) characters which are recognizable for the franchise |
| Patents: | New, technical inventions | Networking solutions, rendering techniques, hardware innovations, innovative game mechanics (depending on the jurisdiction, as in Europe software as such cannot be patented) |
For most video games, copyright is the primary form of protection. While some characters may also be protected through trademark registrations, the majority of game assets are subject to copyright only.
When is something protected by copyright?
Copyright protection generally applies automatically once an original work is created. In most jurisdictions, there is no requirement to register copyrighted works.
This means that when code is written or art is created, copyright protection automatically applies. Even a work-in-progress can be protected, as long as it is sufficiently original and creative choices have been made.
It is important to understand that ideas, concepts, and styles are not protected by copyright. Copyright only protects concrete, observable expressions, not abstract ideas that have not yet taken a tangible form.
Who owns the copyrights to the game assets?
In most jurisdictions, ownership belongs to the person who created the game assets, unless an exception applies.
Common exceptions include:
- Employment relationships
Game assets created in the context of an employment relationship are assigned to the employer. - “Work made for hire” (United States)
In the United States the “work made for hire” doctrine can lead to a situation where the client receives the copyrights to certain commissioned works, depending on how the contract is structured.
Because these exceptions exist, ownership should never be assumed, especially when working with freelancers, contractors, or internal collaborators.
Points of attention when negotiating a video games publishing agreement
Developers usually retain IP rights – but confirm it
In most modern publishing agreements, developers retain ownership of their intellectual property rights. However, this should never be taken for granted. Always verify the contract language to confirm that the developer remains the IP holder.
Even subtle wording choices can have significant consequences for ownership and control.
Co-development can lead to co-ownership
Some publishers co-develop games together with studios. If the contract does not clearly allocate copyrights, this can result in co-ownership.
Depending on the jurisdiction, co-ownership can have unintended consequences:
- In some countries, commercial exploitation requires unanimous consent from all owners.
- In some countries, each co-owner may commercially exploit the game independently.
Commercial exploitation includes developing ports, prequels, sequels and spin-offs. What may seem “fair” at first can quickly become a legal obstacle if co-ownership is not clearly defined in advance.
Ports and marketing assets may default to the publisher
When publishers develop marketing assets, such as trailers, banners, or key art, ownership may default to the publisher. During the collaboration, this usually does not cause issues. However, upon termination of the publishing agreement, it can prevent developers from continuing to use these assets.
For more information on this scenario, see our article on the Consequences of Termination.
When publishers develop ports, it is particularly important that the intellectual property rights to those ports are sufficiently transferred to the developer. If the publisher instructs a third party to develop the ports, the agreement should include a provision requiring that the intellectual property rights are first from that third party to the publisher. This then allows the publisher to subsequently transfer the intellectual property rights back to the developer.
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Beware of transfer-on-breach clauses
One of the most important clauses to watch out for is the transfer-on-breach clause. This provision transfers the game’s intellectual property rights from the developer to the publisher if the contract is terminated due to a breach by the developer.
The idea behind this clause is that it allows the publisher to finish and release the game in order to recoup their investment. However, the consequences are very severe: the developer effectively loses the rights to their game.
Because of this, transfer-on-breach clauses require very careful scrutiny. Without proper safeguards, they can be used in ways that go far beyond what is reasonable or proportionate.
Before you sign: summary and next steps
Intellectual property rights define who truly controls a video game, both during the publishing relationship and long after it ends. While most modern agreements allow developers to retain ownership, risks remain, especially in cases of co-development, publisher-created assets, or hidden transfer-on-breach provisions.
Ensuring clarity at the contract stage is the best way to protect your game’s future. If there is any doubt about how intellectual property rights are handled in your draft agreement, it is wise to have it reviewed by a lawyer experienced in video game publishing before signing.
Next up, we’ll look at Future Games & Exclusivity, a clause that can quietly limit what you’re allowed to build after your current game ships.