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How close am I to selling my game myself ?

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falcoperegrinus
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Joined: 11/16/2009

Hi
I am a graphic designer. I have a game which i am ready to publish and sell with at least 2 more in development. It is fully designed graphically with non-copyrighted images and content. The mechanics are my own since i developed this before i even became a board gamer or know about the sites out there. I sure it will resemble someone's engine but it was developed without any influences. I have play tested it and it got good reviews. It is also very educational as well as fun to play. So besides some copyright fees and some capital for card printing and marketing, what is stopping me from selling them myself? I do have a website and sell regularly on amazon and ebay. I have a sales license to do graphic design. Do i need anything else? Do i have to create a company? I do have a website that i sell photos and stuff on, can i use that? At a penny a game royalties, i am reluctant to go that way with it...

truekid games
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Joined: 10/29/2008
artistic work is

artistic work is automatically copyrighted- google "poor man's copyright" if you want to make it a little more secure (but in no case do i recommend paying any fees to get it registered).

If you are going to distribute the games yourself then in theory, yes, you are "supposed" to create a business (either a sole proprietorship or LLC... also something you can google). This gives you a tax ID, which lets you buy any materials you have an "intent to resell" without being charged tax, among some other things. If you go with a company that does the manufacturing AND distribution themselves, then that's not necessary. If your sales license already covers sales tax considerations, then you're already set. (if it doesn't- *i am not a lawyer* i'm not sure i actually recommend getting a business license. the tax hassles with being legitimately self-employed are not fun. and if your primary means of commerce will be online, you may fall under "cottage industry" anyway)

Figure out your manufacturing (are you paying someone to make it? are you buying components and assembling it yourself? what's your cost to make, and what's your retail cost?)

Figure out your distribution (don't go with whatever site is giving you penny-per royalties, there are resources online for simple websites with shopping carts at no cost, just a little legwork. is your primary outlet going to be online sales? are you trying to get stores to carry it as well?)

Figure out your market (who's selling it, and who is your primary customer? make sure your game ends up in front of the appropriate people).

ripo
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Joined: 10/24/2009
Nothing speaks against

Nothing speaks against selling your game yourself. But game publishing companies have distribution departments that are able to reach a far larger public than you can do on your own...

Benster
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Joined: 10/28/2009
copyright

I have to disagree with Truekid about the copyright issue. He is correct that obtaining a copyright does occur immediately upon the creation of the are (of "fixing the expression in a fixed medium" in legal speak). So technically, you don't have to register the copyright. However, registration of the copyright gives you an important advantage and costs very little money.

You cannot enforce an uncopyrighted work. This means that if someone infringes on your art and you choose to sue them, you will have to register the mark anyway before you can sue them. So if it is intellectual property that you wish to protect, you will have to register it eventually. Secondly (and this is the reason to do it sooner than later), if you register early enough in the process, you can be entitled to sue for statutory damages. This means that a judge in a lawsuit will look at the Copyright Act which specifies a certain range of automatic money that you get. The advantage of this is that you or a lawyer won't have to prove damages (which is very expensive to do) and typically, the statutory damages can be quite generous (particularly given the fact that you are self-publishing, which means your actual damages that you would prove would likely be very low).

With all of this, the cost of registration is under $100/registration currently (and I'd have to check, but I think you can copyright the DESIGN of the game [not its mechanic or its name] as a whole including the artwork), and it is easy enough for you to do yourself without having to pay an attorney to do it. I know attorneys who even tell clients not to bother paying them to do it because it is so basic. So the benefits definitely outweigh the costs IF you are really concerned about your intellectual property.

However, note that if you do plan to enforce a copyright, you have to catch the guy that copies you before you can do anything. With the internet, and with the scale of your potential business, and with your resources, this may be impractical. Given that, registering now (while advantageous) may not help you at all in the event that someone infringes on your rights; you may never know about it. So before you do anything, think about how worthwhile the investment will be in your situation. Artwork is not difficult to get made for a project, so the incentive for someone to risk infringement to use your art is not always there.

From a marketing standpoint, the Trademark is the more important thing to register (that is, the name of the game and the name of your company). By registering these marks with the USPTO you can prevent other people from marketing similar goods under the same name (giving you brand power). But Trademark registration requires a lengthy process of making sure someone else doesn't already have the registration and registration itself is very expensive. There is a similar "poor man's trademark" called prior use, but to get that you have to show that people recognize your brand prior to someone else using the same word or logo. (Ex: if I say Monopoly, you know what I'm talking about).

Just some things to think about. I hope this is helpful.

guildofblades
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Joined: 07/28/2008
>>You cannot enforce an

>>You cannot enforce an uncopyrighted work. This means that if someone infringes on your art and you choose to sue them, you will have to register the mark anyway before you can sue them.<<

Actually, in the US this is not the case. You can defend an unregistered mark. But, of course, as part of that process you will have to adequately show your earlier claim to it. Registering merely gives you a registered date claim on your copyright, but there are certainly many other ways to prove your date of creation/ownership as well.

You are correct though, that without a registered copyright, you will not be able to seek damages. You could only seek an injuction against them continuing to use it. But, it should also be noted that simply owning a registered copyright or trademark when suing someone for infringment you are not automatically entitled to damages. You must first prove actualy damages occured, which may not be easy to do.

Ryan S. Johnson
Guild of Blades Retail Group - http://www.gobretail.com
Guild of Blades Publishing Group - http://www.guildofblades.com
1483 Online - http://www.1483online.com

Benster
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Joined: 10/28/2009
US Copyright act does require

US Copyright act does require registration for a lawsuit. The only time an unregistered work may be defended is if it was denied registration, or if you are claiming the authorship rights under 106A (which are not technically the rights associated with copyrights). You can register after the infringement and then sue retroactively, but you lose the option of statutory damages and you MUST register before you can sue. Looking at the actual text of the Act, however, it appears as though you must register within 3 months of creating the copyrightable material. For statutory damages you need not prove any damages, just that an infringement occurred, and then a judge will establish an amount within the statutory guideline that is "just." Proving approximate damages, of course, helps a judge determine what is "just." I've included the applicable provisions of the Act below:

§ 411. Registration and infringement actions

(a) Except for an action brought for a violation of the rights of the author under section 106A(a), and subject to the provisions of subsection (b), no action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.

§ 412. Registration as prerequisite to certain remedies for infringement

In any action under this title, other than an action brought for a violation of the rights of the author under section 106A(a), an action for infringement of the copyright of a work that has been preregistered under section 408(f) before the commencement of the infringement and that has an effective date of registration not later than the earlier of 3 months after the first publication of the work or 1 month after the copyright owner has learned of the infringement, or an action instituted under section 411(b), no award of statutory damages or of attorney’s fees, as provided by sections 504 and 505, shall be made

§ 504. Remedies for infringement: Damages and profits

(c) Statutory Damages. —
(1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.
(2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000.

truekid games
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Joined: 10/29/2008
odds of having artwork stolen

odds of having artwork stolen to any relevant degree: extraordinarily low.

odds of even coming into contact with a commercial work utilizing the art, and it being a detractor from your original, to the extent where you would want to pay legal fees: microscopic.

odds of spending $100 to register it, (rather than mailing a sealed copy to yourself- notice i did mention poor man's copyright), and having that $100 be straight wasted: VERY high.

stop scaring the kid.

Benster
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Joined: 10/28/2009
My intent was certainly not

My intent was certainly not to scare him. I apologize if that was the result. I was merely attempting to provide accurate legal information so that he could make an informed decision for himself.

Dralius
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Joined: 07/26/2008
then there is this

Benster wrote:
US Copyright act does require registration for a lawsuit. The only time an unregistered work may be defended is if it was denied registration, or if you are claiming the authorship rights under 106A (which are not technically the rights associated with copyrights). You can register after the infringement and then sue retroactively, but you lose the option of statutory damages and you MUST register before you can sue. Looking at the actual text of the Act, however, it appears as though you must register within 3 months of creating the copyrightable material. For statutory damages you need not prove any damages, just that an infringement occurred, and then a judge will establish an amount within the statutory guideline that is "just." Proving approximate damages, of course, helps a judge determine what is "just." I've included the applicable provisions of the Act below:

§ 411. Registration and infringement actions

(a) Except for an action brought for a violation of the rights of the author under section 106A(a), and subject to the provisions of subsection (b), no action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.

§ 412. Registration as prerequisite to certain remedies for infringement

In any action under this title, other than an action brought for a violation of the rights of the author under section 106A(a), an action for infringement of the copyright of a work that has been preregistered under section 408(f) before the commencement of the infringement and that has an effective date of registration not later than the earlier of 3 months after the first publication of the work or 1 month after the copyright owner has learned of the infringement, or an action instituted under section 411(b), no award of statutory damages or of attorney’s fees, as provided by sections 504 and 505, shall be made

§ 504. Remedies for infringement: Damages and profits

(c) Statutory Damages. —
(1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.
(2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000.

from what i read here http://www.copyright.gov/circs/circ1.pdf

It sounds like you may register after the violation. Otherwise what is the point in saying

“Copyright Secured Automatically upon Creation

The way in which copyright protection is secured is frequently
misunderstood. No publication or registration or other action
in the Copyright Office is required to secure copyright. (See
following note.) There are, however, certain definite advantages
to registration. See “Copyright Registration” on page 7.”

From page 7

“Copyright Registration

In general, copyright registration is a legal formality intended
to make a public record of the basic facts of a particular copyright.
However, registration is not a condition of copyright
protection. Even though registration is not a requirement for protection, the copyright law provides several inducements or advantages to encourage copyright owners to make registration. Among these advantages are the following:

• Registration establishes a public record of the copyright claim.

• Before an infringement suit may be filed in court, registration is necessary for works of U. S. origin.

• If made before or within five years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate.

• If registration is made within three months after publication of the work or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.”

Benster
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Joined: 10/28/2009
No, that is correct. You MAY

No, that is correct. You MAY register after a violation if you wish. In that case, you have lost some of the legal benefits of early registration. If you retroactively register, you also have to prove that your creation was prior in time, which is where the poor man's copyright comes in. I'm sorry if my previous posts were not clear on that point; I thought I had stressed that, but it may have gotten lost. You are absolutely correct in that regard.

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