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If you’ve infringed your own copyright – should you sue?

26 February 2010

Here’s an idea for a game:  Move a marble-like ball around a computer screen by continually placing train tracks in front of it 

Here’s another one:  Having developed the above programme, move the rights in it from you to your company and then seek to move it back again using the courts and the law of copyright infringement. 

The first idea might seem a decent one.  The second idea is a truly terrible and expensive one and one that developers should avoid at all costs as this case shows.

A freelance developer developed his game concept (called either Tracktrix, or later Train Trax) before he joined Circle Studios as a games developer.  Without telling others in the company that he had developed this concept himself he passed on this concept and encouraged Circle Studios to exploit it. 

Sadly this did not lead to commercial success and Circle Studios went into administration.  Afterwards the developer sought to take back the concept and to do this he claimed, amongst other things – copyright infringement, alleging that Circle Studios had copied the game from him as a freelance developer.  After all he should know…he (as an employee of Circle) had copied it! 

Unsurprisingly perhaps the games developer was unsuccessful.  As the developer had not disclosed where the idea came from, there was no reason for the employer to believe that the concept was not created in the course of his employment.   Any infringement was caused by the developer.  The copyright claim failed, as did a related breach of confidence claim, with the judge lamenting that the action reached the court in the first place.  

The lesson – be clear where ideas come from as an employee and if you developed something yourself that you later want to use in your employment, discuss assignment or a licence with your employer.  If it’s too late to do this, avoid litigation if you can, as taking that track without advice is likely to mean losing your claim, as well as your marbles.

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Richard Nicholas

Richard Nicholas

Partner and Responsible for In House Lawyers

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