Marta Żukowska, Senior Specialist & Wojciech Kostka, Partner
From Pixels to Policies: Legal Insights for Game Developers in Poland
Wojciech Kostka, attorney at law, partner in the law firm Lesniewski Borkiewicz Kostka & Partners (lbplegal.com), vice-chairman of the Supervisory Board of Techland S.A.
Marta Żukowska, attorney at law, senior specialist with extensive experience in gamedev.
The Polish game developer market is booming. Why should game development studios think about legal issues from the very beginning?
WK: Indeed, the market is diversified, and Poland has become a leading country in gamedev not only in this part of Europe.
While providing services to both: large and smaller gamedev studios, it is clear that legal security requires comprehensiveness: from intellectual property, labor law, e-commerce, consumer rights, personal data to tax issues. NFT (non-fungible token) and AI issues are also increasingly emerging for detailed regulation.
Every, single project should be secured starting from the concept stage, to avoid "patching holes" later and exposing gamedev studio to civil claims or even criminal proceedings. Especially when the game achieves success the exposure is big (commensurate with the scale of success).
Are there any crucial issues or risks to think about first?
WK: There are many issues to be "taken care of". While thinking about the game as the concept: f we surely need to confirm whether the idea and scenario do not infringe the rights of other works, because the line between inspiration and plagiarism is sometimes difficult to draw (in particular currently where the new ideas are being created every second).
We need to also choose a model of financing and provide the funding, which is a major legal project to lead and secure. At this stage it is good to think and plan the model of cooperation with the team, whichbecomes even more complicated within a cross-border team. If it is such a team, we need to remember also about permissions or sanction lists.
Another issue is ongoing assets mapping and legalization – we need to be sure that all of the game elements are used according to the law and duly implemented. Due, to the IT sector dynamics, acquisition of copyrights or obtaining licenses in an adequate way, including in particular the proper fields of exploitation of the game elements, will determine future distribution channels or the permissibility of, for example, gadget sales.
While working on the game we need to also have in mind that there are a number of game industry regulations and guidelines which provide many other issues to be taken care of, for example, the creation of end game credits, loot boxes, age ratings (PEGI, ESRB and others) - we need to remember that the sales of the game is closely related to the potential group of customers, which is based on the in-game content, like blood, violence, death etc.
A separate spectrum of challenges is connected with for example launching an online stone, in particular while taking into account a number of consumer regulations.
Finally, the icing on the cake is GDPR, which mandates concern for players' privacy, including depending on their age.
While taking the above into account it is clear that the law imposes some common obligations on all of the gamedev studios. However, an industry-experienced lawyer takes into account the scale of the client's business, its needs and goals, and is able to point out what is most important for the studio at a given stage, and what action entails the greatest risk (to be secured).
MŻ: I agree that there are many areas that should be taken care of. So, it is important to mark the crucial issues. Computer games often strike fear in the hearts of lawyers and creators alike, because of their complexity – the fact that they are works composed of many different works (graphics, music, font, computer program, etc.). What’s more: they are usually created by different people and often inspired by other works (such as books or films). All of these issues must be adequately secured in particular on the field of copyrights (but definitely not only in this scope).
In addition, the cross-border aspect of computer games makes it necessary to keep in mind not only the Polish legal system (while looking at polish gamedev studios), but also the law of the markets where the game will be available. The best way is to at least secure the crucial markets within which the game will be released.
You mentioned the legalization of assets used in the game, e.g. photos, videos. How to deal with this issue? Is it a common thing to use the assets from the publicly accessible, commercial databases
WK: Assets can be approached in two ways - creating "from scratch". Currently, due to the complex character of the games, studios will use at least several databases of ready-made graphics, photos, animations etc. In this case, the key is to choose the right license, so as not to close off, for example, the possibility of distributing the game in certain markets or to certain audiences.
A separate, very hot topic is using artificial intelligence (already indicated above). Here, too, you need to analyze the licenses and the risks associated with using the results of AI work. I believe that this issue will become more and more relevant in the near future.
MŻ: While talking about the present game market we need to remember that computer game is a creative compilation of many elements, including: created exclusively for this particular game and already existing elements. And indeed: the use of assets available in public databases is a common phenomenon among developers.
The situation is easiest when the asset is created from scratch by the developer – in this context, there is no need to think about who the author is (we know it from the beginning) and, in principle, it remains only to determine what kind of work it is and to secure the issue of transferring the intellectual property rights to the asset, so that they belong to the game producer. By creating an asset yourself, you can at the same time create a work identical or similar to a work created by someone else. This is not usually plagiarism, but for the purpose of a possible dispute, the asset creation process should be archived.
In a situation where a developer uses an asset downloaded from a publicly available database, it is necessary to evaluate the regulations associated with such use. The license terms for larger libraries are usually found within the library site. The licenses may be different for a given asset, so a separate review of the regulating license must be made for each single item. You cannot use assets of someone else's authorship or make minor changes to them without the permission of the original creator. As a rule, in the case of assets downloaded from databases, it is practically unheard of to transfer economic copyright, rather it is always a license.
On the other hand, when developing a work authored by another person, the creator makes a change and creates a new, independent work, the so-called dependent work. A dependent work is created by taking elements of a creative nature and incorporating them into our work. Such a dependent work cannot be disposed of and used without the permission of the creator of the original work.
Is the image protection a problem during the work on a computer game?
MŻ: A game can often use elements that are not works, but the use of them encroaches on other rights, such as trademarks or personal image rights (e.g., the use in a game of characters of real people, such as Keanu Reaves in Cyberpunk 2077, Barack Obama in Need for Speed: Carbon in 2008, Phil Collins in Grand Theft Auto: Vice City Stories). When creating characters in computer games, please note that the use of the image of real-life characters in games is commercial in nature and usually requires the consent of the person in question, in particular, this applies to the use of the image of celebrities, athletes, artists, etc.
Fictional characters may be the subject to independent copyright protection, as long as they meet the characteristics of a work, e.g. the character of James Bond, Godzilla – in such a case you must obtain permission to use the above-mentioned characters.
As a rule, you can use images of figures from previous eras (e.g. Napoleon) without obtaining permission. Important: there are many exceptions. For example: in Poland the exception is Frederic Chopin, whose name and image are specially and particularly protected; in other countries there may be similar regulations of dates. figures particularly important for the history of these countries - this should be verified each time.
You both have been looking at the gamedev market for many years. Are Polish developers mindful of the legal aspects?
WK: Large gamedev studios definitely are. Especially due to their international reputation and/or their presence, for example, on the stock markets. Their actions, regulations and policies can easily be spotted by gamers, control bodies or potential investors. In their case, the legal area is one of the more important to secure.
Smaller ones, on the other hand, often focus first and foremost on operations, and only when the "dust settles", look at legal issues (with great reluctance, especially in the early stages).
MŻ: Yes, it really often goes this way. Especially when success has "surprised" the creators, securing the legal fields happens in a hurry and is a common source of stress. It is worth reminding that the subsequent implementation of the legal regulations is also more expensive, because it requires more involvement on the part of the lawyer. In that case we need to analyze and safeguard also the actions already taken, before providing the legal advisory (it's like with medical treatment: prevention is cheaper than the treatment itself) - often we are working on months or even years of the studio activities.
In any case, however, you can see that awareness has increased significantly.
You mentioned GDPR. How should gamedev studio approach the issue of players’ privacy?
WK: Awareness is needed right from the very beginning: the game design stage. We need to, in particular, understand what user data we collect and what we do with it. Often, we have laudable goals – fraud protection, analysis, improvement. Most of these can be achieved, but this needs to be properly implemented within internal policies and privacy notices.
In addition, if we implement an online shop, we need to take care of this area as well (with particular care – due to the consumers), especially if we will combine and use data collected from different sources, make automated decisions, accept payments, etc.
MŻ: The global gaming market generates revenues greater than Hollywood and the music market combined, which gives an ocean of opportunities, but also risks. Addressing them in accordance with GDPR or consumer law is quite a challenge. Yet, an experienced lawyer should be able to secure them, without adversely affecting the conduct of business.
So, should a lawyer go hand in hand with a game developer from the very beginning?
WK: Yes, the key is to be sure that business is not constrained by the law more than it really needs to be. Particularly since the gamedev industry offers quite a lot of opportunities (due to the fact that it is "under-regulated").
MŻ: The role of modern lawyers is no longer limited to giving clear "to the point" advice and proposing mechanisms adequate to the possibilities, but also comes down to networking and sharing experience, tossing around ideas etc. I think this is a great direction for the evolution of our profession, definitely better than scaring people with fines and/or the inspections of authorities that impose them.