Myth: “If your game design (icons, theme, graphics, etc.) is 10%-30% different from your competitor’s game, it is not considered copyright infringement.”
You may have heard that a 10%, 20%, or 30% difference is the threshold to avoid copyright infringement. It is not. This myth likely emerged from misinterpretations of the fair use doctrine, a doctrine which allows the limited use of copyrighted material without permission from the copyright owner. However, fair use is determined by considering multiple subjective factors, none of which specify a certain percentage of similarity. Thus, this “rule” is really just a common misconception.
Copyright infringement is not contingent upon a certain percentage of difference in the replicated material and does not specify a particular threshold for modification which insulates the modifier from copyright infringement. In the competitive landscape of the gaming industry, the temptation to modify a competitor’s artwork, even by a significant percentage, is a practice that can lead to severe legal consequences and should be avoided. Instead of looking to competitor games for inspiration, consider these best practices:
- Encourage your team to create original content. Encourage your team not to look for inspiration in competitor games. Rewarding original content fosters a culture of creativity, diversity, and innovation and, of course, also minimizes the reliance on potentially copyrighted material.
- Document sources and licenses. If third party inspiration is used, each designer should document their sources of inspiration with, for example, screenshots of the inspirational images. To the extent any assets are licensed from third parties, you should maintain detailed records of all permissions and licenses obtained for each asset, such as art, sounds, music, etc.
- Implement a robust internal content review process. A rigorous content review process within the company can aid in identifying and rectifying potential copyright violations before publishing or sharing content. A manager or director should compare the final product with the sources and review the relevant licenses to ensure compliance. This serves as a safeguard against inadvertent infringements.
- Provide awareness and education. Companies should: (a) establish written guidelines for using inspirational or licensed external assets, (b) emphasize the importance of respecting copyright laws, and (c) provide training programs for new designers upon hiring and ongoing training for all design employees on a regular basis to ensure the team is current on its understanding of intellectual property rights.
- Seek legal counsel. If there is any question, seek advice from legal professionals who specialize in intellectual property law. We would be happy to help.
The myth of the 30% rule is a prime example of misconceptions surrounding copyright law. It is essential for gaming industry creators to be well-informed about this myth and its possible repercussions. In summary, there is no bright line rule as to copyright infringement, but it has been established that copyright infringement does not hinge on a percentage of difference between works. By using the best practices set forth above during the gaming development stage, creators can embrace a culture of responsible art creation that fosters creativity and innovation and avoids or minimizes potential legal issues.