11

To briefly summarize the situation, a video game was made fifteen years ago. Two development companies and one publisher were involved. All three companies have now been sold to other companies, some of them several times, and some copyrights they held were sold independently of the companies themselves. There doesn't seem to be a record of this particular game's copyright in any of these deals (the game did not sell particularly well).

Speaking with members of the original development team, it is believed the publisher had the original copyrights, but none of them are sure. The copyright does not appear on http://cocatalog.loc.gov/ using any conceivable search. The company most likely to have picked up copyrights from the original publisher is not responding to communication attempts.

In the US, is it possible to find out who owns a copyright? If so, how is this done?

UPDATE The game was first published in Europe, then the PAL region, finally being published in the US. I'm only concerned with the US copyright, but it appears the dates and locations of original release may be important to consider. At least some development occurred in England.

  • Did the original game come with a copyright notice anywhere? – cpast Jun 16 '15 at 15:09
  • Possibly, but I don't have access to the original packaging. And due to the limited production run, it is now $300 per copy on Amazon. – Taejang Jun 16 '15 at 15:17
  • If the original copyright was never filed with the USPTO, then $300 is a small price to pay for solid data on this copyright. – New Alexandria Jun 17 '15 at 3:34
  • @NewAlexandria You mean the US Copyright Office, right? (the PTO just handles patents and trademarks; copyright is a separate office, this one under the Library of Congress, not the Department of Commerce) – cpast Jun 17 '15 at 20:26
  • @Taejang Are there screenshots of the game online? I've frequently seen copyright notices on the title screen or main menu of older games – Sean Dec 2 '16 at 18:36
7

Copyright law is a country-by-country matter. Most countries are signatories to the Berne Convention, which provides a common framework, but there are still variations, generally in the duration of copyright or the definition of copyrightable material.

According to the Hirtle chart, a video game that was first published in Europe in the year 2000 and subsequently published in the United States is still copyrighted in both the United States and whichever European countries it was published in. It is likely to be a work of corporate authorship, so the US copyright will expire on January 1, 2096 (unless a law extending the duration is passed).

In the United States, the requirement to register a copyright was eliminated in 1989 as part of the Berne Convention Implementation Act; registration still provides benefits when filing a copyright-infringement lawsuit. Most European countries eliminated their registration requirements much earlier, if they had them at all: the Berne Convention dates from 1887.

Copyright does not simply cease to exist when the owner does, or if the owner cannot be determined. The difficulty of tracking down copyright holders for old or little-known works is the driving force behind orphaned works legislation. There are no orphaned works laws in the United States, and since copyright is country-by-country, European laws won't help you if you're interested in publishing in the US.

In order to track down the copyright holder, you'll need to figure out who originally held the copyright (probably the publisher, but it could be either development company, or both, or the game might be a collective work of the individuals who worked on it). If it was a work of corporate authorship, and none of the game-copyright sales mention it, copyright will have been transfered when the company owning the copyright was sold (as part of a general "and all intellectual property" clause).

2

In general, no, there is no foolproof way to determine who has copyright. There is no central registry that is sure to have that information.

For video games specifically, this is often a problem. For some old games made by bankrupt studios that were acquired by others, sometimes even the acquiring company may not know if it has all the copyright it needs or if it owns some parts of a franchise only, especially if multiple companies were involved.

The best way to determine who holds the copyright is probably to contact all of the original companies, ask them who they gave the copyright to and follow the chain. Be prepared, though, that they may give you inconsistent and incorrect answers.

2

One can observe who sends a cease-and-desist letter (or files a lawsuit) for copyright infringement, and if they're successful in showing the letter recipient (or court or defendant) they have a copyright. That's the most reliable way to find out. Unfortunately, there is no central registry of copyright transfers.

In such a case, the defendant has a better chance (esp. against willful infringement claims) if they made a reasonable effort to determine who the copyright holder most likely is, and licensed/bought rights from that party for at least some fee. If people are being reasonable (not a safe assumption) and a mistake was made in choosing who to license from, it can often be worked out in settlement as the claimant presents their basis and the retrievable history becomes clearer.

  • And presumably if somebody accepts payment to license something they don't own they would be a far more obvious target for litigation than the unwitting, well-intentioned licensee? – feetwet Aug 28 '15 at 15:22
0

This sounds like it's more a matter of determining the original name / wording used to file the copyright.

Without knowing more of that language, you're left to the typical sleuthing options:

  • names of the company owners / major shareholders as of 15-18 years ago.
  • other DBAs and holding companies of the company originally presumed to hold the copyright.
  • brute force search of all categorically-related copyrights in the time range.

The advice I would really like to give you is knowledge of how IP attorneys filed video game copyrights in the time span of 1985-2000. This could reveal any unexpected filing categories that could have been used as part of niche or experimental copyright strategy (at that time) for this kind of IP.

  • 2
    US copyrights don't have to be registered to be valid; it is entirely possible it does not appear in the government database because it was never registered. – Taejang Jun 16 '15 at 15:29
  • @Dan I wouldn't believe that until I'd done a laborious exhaustive search of the related filed USPTO art in that time period. I have personally done this, so I know that it looks like to do that – by need. – New Alexandria Jun 17 '15 at 3:36
  • But if the original was, indeed, never registered - and has been "sold several times" and generally 'lost track of' then can you be sure anyone would be able to show proof of ownership? Did they buy rights that are unenforceable? – New Alexandria Jun 17 '15 at 3:37
  • 2
    @Dan, US copyrights for works created since 1989 (which includes the game you're asking about) do not need to be registered for the copyright to be valid. Works prior to that do. Source: copyright.cornell.edu/resources/publicdomain.cfm – Mark Jun 17 '15 at 6:49
  • 1
    @cpast I agree, and that's why I'm not making this part of my answer – New Alexandria Jun 18 '15 at 0:11

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