Protect Video Games Before Finishing

Copyright Preregistration Is a New Weapon Against Theft

By Marc S. Cooperman and Michael L. Krashin
December 2006

The video game market was estimated at a record $28 billion in 2005. At the same time, the industry believes it lost more than $2.4 billion to global piracy. As a recent example, both Doom 3 by ID Software and Half-Life 2 by Vivendi Games were downloaded thousands of times before their official release, resulting in millions of dollars of lost revenue. [1]

Safeguard Your Ideas

One new weapon to combat the onslaught of infringement faced in the digital age is Copyright Preregistration. Works became eligible for Preregistration beginning November 15, 2005.

Before Preregistration, to bring a lawsuit against an infringer, a copyright owner had to complete the work, register it and then bring suit. With Preregistration, a lawsuit for copyright infringement can be brought for works still in progress, and before final registration, provided that a few key criteria are satisfied.

First, the Copyright Office has determined that only certain types of works are eligible for Preregistration. These include computer programs, such as video games. Second, the work must be prepared with the intent to distribute it to the public and the work must be “unpublished.” As understood in copyright law, unpublished works are those that have not been made available to the public, either for a charge or for free.

A Simple Process

To secure Preregistration for a work, an applicant fills out an application and pays a $100 filing fee. The application is straightforward, and requires the applicant to identify the type of work being Preregistered, its working title, the author, the copyright owner, a few key dates (such as when creation of the work began) and a description of the work being Preregistered.

Once the application is filed and the fee is paid, the work is considered Preregistered. The entire Preregistration process can be completed at the Copyright Office’s Web site, at http://www.copyright.gov.

According to officials at the Copyright Office, as of the beginning of September 2006, more than 250 works had already been Preregistered. The Copyright Office is in the final stages of updating its online database to allow for searches of Preregistration records, and these will ultimately be available to the public through the Copyright Office’s Web site.

Registration Is Still Required

E

ven with Preregistration, the work must ultimately still be registered with the Copyright Office, for Preregistration is not a substitute for registration. An applicant who Preregisters a work must generally register it within three months of publishing the work, although this time period may be shorter if an infringement suit is brought based on Preregistration.

Even though registration is still required, that is no reason to ignore Preregistration. Preregistration is a powerful weapon. Video game developers should add it to their arsenal to combat infringement of their works — even before they are released to the public.

Marc S. Cooperman is a partner with Banner & Witcoff Ltd. in the firm’s Chicago office, where he focuses on intellectual property litigation, and has extensive experience in the toy industry. Marc can be reached at mcooperman@bannerwitcoff.com. Michael L. Krashin is an associate at Banner & Witcoff, Ltd., also in the firm’s Chicago office. Michael can be reached at mkrashin@bannerwitcoff.com.

[1] “2005 Estimated Trade Losses due to Copyright Piracy,” International Intellectual Property Alliance (IIPA), available at http://www.iipa.com/statistics.html.