One of the most heard video game publishing horror stories is that a publisher takes the intellectual property rights to your game. While in modern day video games publishing this is very rare, it is still important to assess the consequences of the contract regarding your intellectual property rights.
In addition, it is also important to read our article on the clauses concerning future games.
Basics of intellectual property rights
The main areas of intellectual property
The main areas of intellectual property rights are as follows:
| 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. Some characters are also protected by registering them as a trademark, but most 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 it is not required to register copyrighted works. This means that when code is written or art is created, copyright protection automatically applies. This implies that even a work-in-progress is protected by copyright al long as it is sufficiently original and creative choices have been made.
It is important to know that (abstract) ideas, concepts and styles are not protected by copyright. The reason for this is that it is not something that is created and observable yet.
Who is the owner of the copyrights to the game (assets)?
In most jurisdictions, ownership belongs to the person who created the game assets, unless there is an exception.
Some examples of these exceptions are:
- Game assets which are created in the context of an employment relationship are assigned to the employer.
- In the United States there is the ‘work made for hire’ doctrine, which can lead to a situation where the client receives the copyrights to certain commissioned works.
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 assumed. Always verify the contract language to confirm that the developer remains the IP holder.
Co-development can lead to co-ownership
Some publishers co-develop games with studios. If the contract does not clearly allocate copyrights, the result can be co-ownership. Depending on the jurisdiction, this 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 also means developing ports, prequels, sequels and spin-offs. This means that co-ownership can have impact on what you can actually still do with your game as a developer. What seems “fair” at first sight can quickly become a legal obstacle if not clearly defined.
Ports and marketing assets may default to the publisher
When publishers develop marketing assets (trailers, banners, key art), ownership may default to them. This usually does not matter during the partnership, but upon termination of the video game publishing agreement it can block developers from continuing to use these assets. For more information about this, read our article on the consequences of termination .
When the publisher develops ports, it is important that the intellectual property rights to these ports are sufficiently transferred to the developer. In case the publisher instructs a third party to develop the ports, it is important to include a provision that the publisher will include a transfer of intellectual property from this party to the publisher. This then allows the publisher to subsequently transfer the intellectual property rights (back) to the developer.
Stuck on legal fine print?
Let us decode it for you.
Beware of transfer-on-breach clauses
The most important clause 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 when the contract is terminated as a result of a breach of the developer.
The idea behind this clause is that it allows the publisher to finish the game and release it, in order to recoup their investments. However, the consequences of these clauses are very severe, as you effectively lose the rights to your game. Therefore, these clauses require a lot of attention to prevent abusive practices.
Before you sign: summary and next steps
Intellectual property rights define who truly controls a video game. Most modern agreements let developers retain ownership, but 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.