Video Game Developer’s Worst Nightmare

PlayStation-5You spent over 1200 hours in developing a video game and that video game is now successful.  At some time during development, a friend had some free time and assisted by creating images of a couple of cars, accessory items like fuel cans and trees, and some background scenery.   The “friend”, hearing about the success of the video game, demanded 25% of the profits from the video game for his contribution.  You respond by removing the images from the video game.   This did not satisfy the now former-friend, who sued you claiming there was an express profit sharing agreement, claiming that even in the absence of an express profit sharing agreement his contributions made him a co-author of the video game and thus entitled to a share of the profits, and alternatively, that he was entitled to compensation commensurate with the value of his contribution.  This is the fact scenario from a Quebec case, Seggie v. Roofdog Games Inc, where Seggie, the “friend”, made a claim against a video game developer by the name of Germain and Germain’s company, Roofdog Games Inc.   Under the Canadian Copyright Act, except for some specified exceptions (including making a work subject to copyright in the course of employment) and absent an agreement to the contrary, the author of a work is the first owner of copyright in the work, and joint-authors (also referred to as co-authors) are the first co-owners of copyright.  The Judge in the Seggie case set out the following factors to consider in determining whether video game developers are “co-authors”:  1) each co-author must have made a substantial contribution, 2) the co-authors must work collaboratively toward a common goal, 3) there must be an implication that the co-authors must have intended a jointly-authored work, and 4) the contributions of the co-authors must be blended together and not distinguishable one from the other.  The Judge found the Seggie was not a co-author, as his contributions were minor in comparison to those of Germain, the disparity in contributions and other background evidence did not indicate that they were working toward a common goal or suggest an intention for a jointly-authored work, and Seggie’s contributions remained distinguishable from those of Germain.  However, the Judge found that Seggie owned copyright in the images of cars, fuel cans, trees and background scenery he had provided to Germain.  Since it was unclear that Seggie had permanently renounced his right to compensation for the use of the images, Germain was ordered to pay compensation for the use of the images in the sum of $10,000.  There is a lesson here for video game developers.  You should document in writing the relationship and, if applicable, compensation due anyone who makes even a minor contribution during the development of your video game.