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Intellectual Property

In the context of creative media, Intellectual property (IP) refers to the rights for a particular setting or work. These days, such rights are closely guarded by the media corporations and rarely if ever shared, although the nature of IP ownership varies radically according to the medium being considered.

In Books, the author is the owner of the IP to their work (except in cases where the book is licensed from an existing IP – for instance, Star Trek novelisations). The reason for this is clear: the cost of writing a book is trivial, so money is only involved in publishing, distributing and marketing. In this set up, it’s difficult for the publisher to demand the IP rights because the author could simply go elsewhere.

In Comics, the writer and artists didn’t used to have much in the way of rights, although an originator credit (“Batman created by Bob Kane”) was often afforded. In the 1990s, however, creator-owned comics became popular, and in particular a comic publisher named Image made waves by setting up new creator-owned comic franchises one of which, Todd McFarlane’s Spawn, actually went on to be successful. Next to the mega comic licenses of Marvel and DC, however, these creator-owned comics are rather lower down the commercial ladder.

In Television, the cost of development is even higher. At this point, creator-owned IP is somewhat uncommon, although originator credits still occur (“Based upon Star Trek by Gene Roddenberry”). The TV companies shell out a lot of money for the shows, and they expect to own the IP to offset the risks, although some of the larger television production companies manage to hold onto their IP rights by shouldering most of the risk of development out of their own pockets.

In Films, the situation is as in television only more so: budgets are even higher, risk is even higher. For original film franchises, the movie company providing the finance expects to own the IP. However, increasingly (because of the risks involved in making highly expensive movies) movies are not based upon original ideas at all. The movie industry has been taken over by licensed movies – films based on books, comics, TV shows (even ones from decades ago) or even old films. The creative talent behind certain movies may get compensated financially from the profits of the films they work on, but they rarely if ever have any ownership of the intellectual property involved.

And so to Games, where the situation is similar to films, but on a smaller scale. Whereas a movie costs around $100 million to make, AAA videogames are made for budgets more like $5-10 million (about one tenth of that of movies). Similarly to films, the investor putting forward the budget expects to receive the IP rights as an additional way to offset the risk involved. While most videogames (and most movies) fail, the few that succeed become major revenue generators, and owning the IP allows the company to capitalise on this success. Also like films, licensed games form a vital backbone to the industry – EA’s success is based almost entirely on their ownership of the major sporting licenses, for instance.

The net result of this is that the creative talent behind a particular idea is only likely to be the IP owner in the case of books, sometimes comics and occasionally for TV. Elsewhere, creative individuals must trade the intellectual property rights in return for the money afforded to create the media property in question – whether it is a TV show, a movie or a videogame. What is missing from this state of affairs is the recognition that without the creative talent still onboard, some franchises are inherently weakened – The Ren and Stimpy Show was never the same after show-creator Jon Kricfalusi was fired, for instance (although it must be noted that Kricfalusi’s intransigence contributed to this outcome).

As a creative individual working in the videogames space, it is difficult facing a point in a project beyond which all the work spent lovingly crafting setting, characters and game mechanics is going to contribute to another company’s bottom line – the point of signing away an IP that one has worked upon from the ground upwards, knowing that in the future all this creative content that you have provided will belong to another company, who can not only deny you the right to work upon that franchise in the future, but hand it over to someone else who may or may not have the skills to perpetuate it. (To cite a film example, consider what Gregory Widen, who created the story for Highlander, must have felt about the second movie...)

Unfortunately, this is the business reality of the creative industries. Until I have a few million of my own to invest, I have no choice but to accept the circumstances I’m faced with.  I may have to accept it – but that doesn’t mean I have to like it.

Comments

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I do love seeing some developers get to keep their IP, even if then that developer is sometimes brought out directly. Publishers do have a good setup right now, I'd admit.

So it warms the heart to see IP's (even licensed ones from other mediums) being kept by developers to make their own, or carry on working on (or not!).

Sadly, I've never heard any mention of a single person owning their ideas and work on a project - of course, the legal wrangling would be tough, is the main reason :) but certainly I've never heard of a writer keeping their story, or a designer keeping their setting and design IP's.

Andrew: in videogames, it would be almost unthinkable for an individual to own IP outside of very simple game titles (or old titles, which is kind of the same thing). Getting a developer to hold onto it is challenge enough these days! :)

Like you, I love it when creative talent trumps money in the IP ownership, while recognising the commercial reality that has led us to the opposite extreme.

Best wishes!

In many respects owning IP is a macguffin. In the film industry, for example, you don't own the IP, but if you are a name star you get a huge fee plus a share of the gross. Why do you want to get bogged down owning IP in such a case - and having to manage it instead of moving on to a new project? Also, your ownership is tenuous anyway: after all *you* don't really own it - the company you own shares of owns it.

I should also mention that you are conflating intellectual property ownership with moral right. You can sell your IP but still retain moral right over a product - it's difficult but not impossible. It's also possible to sell IP in such a way that if the owner does turn it into sequels, spin-offs, this-that-and-the-other, you get a piece and you have a say. (It's done in the film industry.) But for game designers to get there they would need to get agents (for themselves, not for the team or company they belong to) and treat themselves as individual creators - something they haven't yet learned to do.

Tim: many thanks for your thoughtful comments here! You're right, I have conflated IP and moral rights - that's because every contract I see now (for books or games) asks me to waive my moral rights entirely. I don't like it, but I don't have much choice!

I can see that as a film star you don't want or need to own IP, but as a game developer it's a much bigger deal! Consider how the people who created the Tomb Raider franchise now have nothing to do with this IP, and get no compensation for the money that it makes. That's the reality of the games industry.

Many thanks for a thoughtful comment!

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