How Do You Make Sure Your Idea is Safe?
A few days ago, I posted a message on Linked In, offering to answer a few legal questions posted by app and video game developers. I've been nearly overwhelmed with questions! So here's the answer to the first from a developer who asked:
Hey Jordan, this is a great first question because it comes up all the time. The answer is a bit surprising for most people, so let me give you the quick answer and then I'll explain why.
Here's the answer: Transform your "idea" into something tangible.
If it's a game "idea" make the game. If it's a story, write the book. If it's a... you get the picture.
Now, here's why (and this is what most people don't understand).
You can't copyright an "idea". Copyright law protects tangible works (like books, movies, complete video games, etc.) but not the idea behind them. That's why you see so many movies that have the same plot. It's the reason you see a half-dozen Bejeweled clones in the app market.
What is protectable are works fixed in a medium like computer code, design documents, etc. These can be copyrighted, but the idea behind them cannot.
It makes sense too. Think of what a mess things would be if a idea could be copyrighted. How would you prove in court that someone stole your unique idea? It has to be fixed in order to show that someone took it (and, of course, it's a lot more complex than that, but you get idea).
I get a lot of people who come to me and say, "I have this game idea...now how do I protect it". I give them the same answer that I gave above. Write the game.
I know that's difficult, but that's the law.
Now, with that said, there is another area of law called "trade secrets" and unlike a copyright, a trade secret can be protected even in the form of an idea. But trade secrets are generally business ideas: customer lists, advertising strategies, manufacturing strategies, new ways of doing business, and unique business ideas.
Trade secrets can be protected from unfair competition, and the most common way of doing this is through the infamous non-disclosure agreement that people and businesses sign when they begin talking with each other about business ideas.
That said, trade secrets are not only difficult to prove, but you also have to show actual damage. How much money you lost. What business opportunities actually and in reality vaporized because someone took your business plan.
You may want to check out an article I wrote not all that long ago (Zynga Slammed Again). In this article I discuss the lawsuit between Electronic Arts and Zynga, where EA is suing Zynga for copyright infringement. The article addresses the idea of an "idea" versus a tangible representation of it.
I hope this helps.
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The comments here are for discussion purposes only, which means that I'm not giving legal advice and the reader shouldn't rely on this this discussion (or any social media or internet forum discussion for that matter) to satisfy your legal needs. Also, no attorney-client relationship is established by my comments here.
Dan Rogers is a practicing attorney within the video game and digital media industries. He’s also the author of several articles on the video game industry, technology, and digital law.