Presentation
On December 6th, Mr. Chomiac de Sas participated in a seminar on digital law for students at Gaming Campus (Lyon), in the Gtech program dedicated to video game developers.
I had the opportunity to share my expertise in new technology law, particularly video game law. The seminar aimed to raise students’ awareness of the importance of intellectual property and the legal issues surrounding practices related to video games, a constantly evolving and highly complex field given the variety of associated legal topics: intellectual property of the game and its assets, game production, monetization strategies, control of personal data collected and processed by the studio, regulatory aspects related to esports competitions, etc.
As a creative sector at the crossroads of technology, art, and entertainment, the video game industry presents unique challenges for creators, developers, and also for lawyers specializing in this field.
Creating video game studios: a delicate exercise
For more information on preparing, creating, and structuring a video game, see our dedicated guide.
Many groups, motivated by video game development, have faced the challenges associated with creating a video game studio and the importance of its legal, tax, and organizational preparation.
The strategic implications of choosing the type of structure (SAS, SARL, EI), drafting the articles of association and their mandatory clauses, as well as preparing a shareholders’ agreement that operationally organizes the launch of the business, are elements often neglected or even rushed by video game creators.
Protecting intellectual property is another key issue. It is essential to register the copyright to secure the game, its storyline, visuals, source code, and logo with the INPI (French National Institute of Industrial Property). Furthermore, the licenses of third-party software and assets must be carefully reviewed to ensure their use complies with their terms. To avoid any conflict over ownership of the created elements, copyright assignment contracts must be signed by all collaborators.
In terms of digital regulations, the studio must also comply with the GDPR if it collects personal data. This involves publishing a privacy policy and obtaining explicit user consent. The Terms of Service must specify the rights and responsibilities of players, while the legal notices must be accessible on the platforms associated with the studio.
From a tax perspective, the studio will have to charge VAT if its sales exceed the legal thresholds. For international sales, VAT rates must be adjusted according to local regulations. Regarding social security contributions, the income generated by the founders and employees will be subject to mandatory contributions, which vary depending on the company’s legal status.
Funding is a major challenge. To cover development and marketing costs, the studio can seek public subsidies (for example, from the CNC or Creative Europe), private investment (business angels, venture capital, partner companies like Tencent or Ubisoft), or crowdfunding through platforms like Kickstarter. A bank loan can also be considered to supplement these resources.
The game’s business model must be carefully designed to maximize revenue. Competitive pricing, targeted marketing campaigns, and strong community involvement (through early access or rewards for demo players) are essential strategies. Distribution via Steam or other platforms ensures broad accessibility for players.
Emulators, Roms Hacks, Fan Game & Plagiarism
The creation of video games, in the form of ROM hacks or fan games, raises complex questions regarding intellectual property, which the students attempted to answer or at least understand the issues at stake.
These two types of creations, although stemming from fans’ passion for existing games, are nevertheless treated legally differently.
As a reminder, ROM hacks are modifications of existing video games. They generally involve altering a game’s source code to modify certain aspects or assets, such as graphics, levels, or dialogue. In practice, these modifications are often carried out without the authorization of the copyright holders of the original game.
Case law has often confirmed that unauthorized modifications of video games constitute a violation of copyright (“the copier is materially and legally responsible for the company, and it “cannot be seriously argued that he limited himself to making available to his customers the technical and human means intended to allow them to make the backup or private use copy permitted by law”).
On this point, ROM hacks have faced more frequent legal action. For example, companies like Nintendo have regularly asserted their rights against ROM hacks to prevent their distribution, even non-commercial.
Fan games are games created by fans that draw inspiration from the universe, characters, or mechanics of existing games. Unlike ROM hacks, fan games are often developed from scratch, although they may use recognizable elements from copyrighted games.
Fan games can also be considered derivative works. However, their legal status can be more nuanced, as they do not directly modify the source code of an existing game. Nevertheless, the use of copyrighted elements without authorization can still constitute copyright infringement (“a specific instance of copyright infringement in video games is the reproduction, within the game, of a copyrighted work”).
ROM hacks, as direct modifications of existing games, are more likely to be considered copyright infringement. Fan games, while they can also infringe on copyright, have greater leeway in terms of originality, which can influence their legal status. In all cases, it is essential for creators of these works to understand the legal implications and seek the necessary permissions to avoid potential litigation.
Video game assets and marketplace
An asset in a video game is an integrated element that contributes to the game’s design, content, or gameplay. These elements can be visual, audio, interactive, or functional, and constitute the basic building blocks of a video game title.
These assets can be created in-house within the studio, with their intellectual property generally belonging to the company through employment or service contracts that include clauses for the transfer of exploitation rights.
They can also be available from dedicated platforms through usage licenses, subject to varying degrees of restrictions depending on the license (CC-BY, CC0, etc.) and the terms of the marketplaces offering these assets (e.g., Unity: Extension Asset, Single Entity, Multiple Entity).
Legally, some assets are subject to particularly stringent regulations. This is the case for music or sounds, which may be managed by specific licenses and dedicated organizations—SACD in France for composers, SACEM for performing artists.
Using licensed assets in video game production requires significant precautions from the studio and its developers, who must absolutely verify the terms of use and, if necessary, contact the copyright holder to discuss the terms of commercial use.
Failure to do so exposes them to civil and criminal penalties, particularly for copyright infringement or illegal redistribution, which can result in three to five years of imprisonment and fines of up to €500,000, along with precautionary measures.
It is recommended in all circumstances to ensure that assignment agreements are signed for each asset, and where applicable, that the transfer and attribution of ownership are recorded, as well as documentation of its proper use.
From Software, Arkane, Bandai Namco.
Several groups presented in-depth studies of various video game studios, analyzing the evolution of their structure, the range of titles they have published, and more generally, their development strategy.
The publisher of the successful Dark Souls series, the large merger of studios holding the Tekken/Dragon Ball licenses, and a smaller, discreet, yet high-performing studio from Lyon provided students with valuable insights into the essential criteria and elements for their future projects.
Video games & esports: Lawyer specializing in digital law
Beyond the theoretical legal aspects, our intervention focused on supporting creators and future founders of video game studios with the practical aspects of their activities. This included negotiating contracts between partners, preparing End User License Agreements (EULAs), establishing privacy policies and ensuring GDPR compliance, and addressing related issues inherent to any entrepreneurial venture.
This seminar enabled students to gain a better understanding of the specific legal challenges of video games and new technologies. As a lawyer specializing in digital law and particularly involved in the video game and esports sector, I emphasized the importance of mastering these issues to best support stakeholders in this industry and anticipate future legal challenges.
Video game law, constantly evolving, is a fascinating field where technology and creativity converge, offering unique opportunities for legal professionals.
