Legal challenges in the gaming universe: A guide for developers, esports professionals and gamers

As a lawyer specializing in IT and media law, I experience on a daily basis how the booming gaming industry is constantly presenting developers with new legal challenges. This blog post, specially designed for you as a computer game developer, serves as a guide through the legal jungle and shows you how to make your project legally compliant from the first line of code to the release. Because one thing is clear: foresighted legal protection is the key to success and prevents you from making costly mistakes that could, in the worst case scenario, put the brakes on your game even before it is launched. Put your trust in my expertise and let us overcome the legal hurdles together so that you can concentrate fully on what you do best: Developing innovative and captivating games! Below you will find the most important legal aspects that you should keep in mind as a game developer.

Contract law: the foundation of your games project

Contracts are the be-all and end-all in the games industry and regulate the relationships between all parties involved. As a developer, you should therefore ensure that you have watertight agreements from the outset that protect your interests and lay the foundations for a successful collaboration. An unclear contract can lead to lengthy and expensive legal disputes, which can not only jeopardize the success of your game, but also your reputation in the industry. It is therefore essential that you familiarize yourself with the different types of contracts and examine their content carefully. Do not hesitate to seek legal advice, as a seemingly small clause can have far-reaching consequences.

• Developer agreements: These contracts are the basis of cooperation with publishers and should never be signed without careful consideration. They regulate essential points such as the granting of usage rights to your game IP and should also contain detailed regulations on remuneration, profit distribution and milestones to be achieved. Pay particular attention to the definition of the scope of work in order to avoid ambiguities, and define acceptance criteria and quality standards in order to avoid disputes about the completion of the game at a later date. Equally important are provisions on contractual penalties and limitations of liability to minimize your risk. These contracts are based on §§ 311 ff. BGB (German Civil Code), whereby they are often structured as contracts for work (§§ 631 ff. BGB) or service contracts (§§ 611 ff. BGB). As a lawyer with experience in the gaming industry, I can help you to draft these contracts in a legally secure manner and to your advantage.
• Publishing agreements (publisher agreements): These regulate the transfer of publishing and marketing rights to a publisher and are often complex and disadvantage the developer without careful examination. Define exactly which rights the publisher receives (exclusive/non-exclusive) and which obligations it assumes in return, particularly with regard to the marketing budget and distribution strategy. Pay attention to clauses on the minimum purchase of game copies and do not agree to unclear formulations on profit sharing. Negotiate the contract term and termination modalities in your favor in order to remain flexible in the long term. The legal basis for this is provided by §§ 311 ff. BGB, which regulate the general law of obligations. With my expertise, I will ensure that your interests are protected in the publishing contract and that you are not taken advantage of.
• License agreements: The use of third-party software, engines or assets (e.g. music, 3D models) is common in game development. License agreements regulate the rights of use and must therefore be carefully examined in order to avoid legal disputes later on. It is crucial to differentiate between exclusive and non-exclusive licenses and to precisely define the scope of the license (spatial, temporal and content-related restrictions). Also pay attention to the provisions on remuneration and liability of the licensor in order to avoid unpleasant surprises. In addition to the general provisions of the German Civil Code (§§ 311 ff. BGB), the provisions of the German Copyright Act (UrhG) are particularly relevant here, especially §§ 31 ff. UrhG on the rights of use. As your lawyer, I will support you in finding the right licenses and concluding legally compliant contracts.
• Sponsorship and advertising contracts (in esports): These contracts are essential in professional esports and regulate the services of sponsors and the consideration of esports teams or individual players. They should contain detailed specifications on the type and scope of advertising measures, such as the wearing of logos on jerseys, presence on social media or participation in events. Make sure you have clear regulations on the contract term and termination modalities to ensure long-term planning security. It is equally important to consider aspects of competition law, in particular the obligation to label advertising in accordance with the German Telemedia Act (TMG) and the Interstate Broadcasting Treaty (RStV). The basis for these contracts are §§ 311 ff. BGB (contractual obligations). I would be happy to support you with my experience in order to negotiate fair and legally compliant sponsorship agreements.
• Esports contracts: These contracts govern the relationship between esports players and their teams or organizations and should cover all key aspects of the collaboration. In addition to salary issues, training schedules and tournament obligations, conduct guidelines, exclusivity clauses and regulations on image rights and social media activities are also important. Pay particular attention to clear regulations on remuneration, contract duration, notice periods and rights and obligations in the event of illness. As esports agents are often classified as employees, the provisions of labor law, in particular Sections 611 et seq. BGB (German Civil Code), as well as collective bargaining agreements, if applicable. As a lawyer for IT and media law, I can help you to draft these contracts in a legally secure manner and protect the interests of both sides. I will also be happy to advise you on employment law issues arising from the status of the esporter.

The following generally applies to all contracts in the gaming sector: precise, comprehensible and legally compliant wording is essential in order to avoid disputes later on. Do not hesitate to seek legal advice to review and draft your contracts. As a lawyer specializing in IT and media law, I will support you with my expertise to represent your interests in the best possible way and lead your projects to success. Benefit from my experience in the gaming industry and avoid costly mistakes by drafting contracts with foresight. Contact me today to have your contracts put through their paces!

Copyright: Protecting your creative work as a game developer

Your computer game is more than just code – it is a creative work that enjoys comprehensive copyright protection. This protection secures your investment and gives you control over the exploitation of your game. As a developer, you should therefore know exactly which aspects of your game are protected and how to enforce this protection effectively. After all, copyright infringements can not only jeopardize the commercial success of your game, but can also lead to lengthy and costly legal disputes. It is therefore essential that you familiarize yourself with the basics of copyright law and know your rights.

• Overall protection of the game: Your computer game is protected both as a computer program pursuant to Section 69a UrhG and as an audiovisual work pursuant to Section 2 UrhG. This protection includes the program code, the graphical user interface, the music, sound effects and all other creative elements that make your game unique (§§ 2 ff. UrhG). Please note, however, that copyright protection only covers the specific design of your game, but not the underlying game idea or the game concept itself. Protection arises automatically with the creation of the work and does not require registration or similar formalities. As a copyright lawyer, I support you in defining the scope of protection of your game and in enforcing your rights against third parties, for example by issuing warning letters or preliminary injunctions.
• Protection of individual game elements: Individual components of your game, such as characters, level designs or pieces of music, can also enjoy independent copyright protection, provided they reach a certain “level of creation” (Sections 2 et seq. UrhG). This means that they must be individually designed and reflect the personal intellectual creation of their author, which is achieved through a creative and original design. The protection then also covers the reproduction, distribution and making available to the public of these individual elements, which gives you as the rights holder far-reaching control options. The unlicensed use of individual elements can quickly lead to conflicts, especially in the case of particularly popular games. As your lawyer, I can help you assess the level of creation of your game elements and effectively defend your rights in the event of infringements in order to protect the value of your creative work.
• Licensing of assets: As a developer, you must ensure that you have the necessary rights of use for all assets used in your game (music, sounds, models). This is particularly important if you use assets from third-party providers, as unlicensed use can quickly lead to expensive warnings and claims for damages (§§ 31 ff. UrhG). Licensing can be done by purchasing a license or obtaining individual permission from the author. Always check the license terms carefully to ensure that they cover the intended scope of use and do not contain any hidden costs or restrictions. As a specialist lawyer, I can support you in reviewing and negotiating license agreements and help you avoid legal pitfalls so that you can concentrate on your creative work.
• Mods and fan content: Copyright law must also be observed in the area of mods and fan content, even if it is not used commercially. If content from your game is used to create your own works, your permission as the rights holder must generally be obtained (Sections 23 ff. UrhG). This also applies to non-commercial uses, as these can also affect your exploitation rights. Although there are exceptions such as the right to quote (Section 51 UrhG) or free use (Section 24 UrhG), their applicability must be examined on a case-by-case basis. As a lawyer with experience in the gaming sector, I can advise you on how to deal with modding communities and protect your rights without suppressing the creative fan culture. Together, we will find a solution that does justice to both your interests and those of the fans.
• Open source software: The use of open source software in games is widespread, but also poses legal challenges. As a developer, you have to deal with the various open source licenses (e.g. GPL, MIT) and comply with their often complex conditions. Although these licenses allow the free use, distribution and modification of software, they often attach conditions such as the disclosure of the source code or the transfer of the license to derived works. Unknowingly violating these conditions can have serious consequences, including the loss of the right to use your own software. As your lawyer, I support you in selecting the right open source license for your project and implementing its conditions in a legally compliant manner so that you can benefit from the advantages of open source without taking legal risks.

Protection of minors: Responsible use of gaming content

The protection of minors is a key issue in the gaming industry and poses particular challenges for developers. As a lawyer for media law, I support you in designing your game in such a way that it meets the legal requirements and at the same time appeals to a broad audience. This is because non-compliance with youth protection regulations can not only lead to severe fines, but also to your game being indexed or even confiscated, which would have considerable economic consequences. It is therefore essential to deal with the relevant regulations at an early stage and implement suitable measures to protect children and young people. Together, we develop strategies to make your game age-appropriate and minimize legal risks.

• Age labeling (USK): In Germany, age rating by the Entertainment Software Self-Regulation Body (USK) is mandatory for all commercially distributed games (§ 14 JuSchG). The USK checks your game and assigns an age rating from “from 0 years” to “from 18 years” based on criteria such as depiction of violence, sexual content or discriminatory statements. Correct age labeling is essential in order to comply with youth protection regulations and avoid fines. Games that endanger the development of children and young people can be indexed and are then subject to strict distribution and advertising restrictions. As your lawyer, I will provide you with comprehensive advice on the USK review procedure and support you in applying for age rating so that your game can be launched on the market without any legal hurdles.
• Sales and access restrictions: The sale and making available of games to minors that do not have the appropriate age rating is strictly prohibited and may have consequences under criminal law (Sections 12 ff. JuSchG). This applies to both stationary retail and online sales and requires particular care when designing sales channels and advertising measures. Violations of these provisions can be punished with severe fines or, in serious cases, even imprisonment. Advertising for games with age restrictions is also only permitted under certain conditions and must be clearly recognizable. As a lawyer for media law, I can help you to design your sales and marketing strategies in a legally compliant manner and ensure compliance with youth protection regulations in order to minimize legal risks.
• Online games: Online games pose particular challenges for the protection of minors, as it is more difficult to check age verification and content. As a provider of online games, you are obliged to take suitable measures to prevent minors from accessing content that is harmful to minors (§§ 11 ff. JuSchG, JMStV). This can be done through effective age verification systems, the creation of protected areas for minors or by monitoring communication between players. You are also obliged to appoint youth protection officers and to cooperate with the relevant authorities. As your lawyer, I will support you in implementing legally compliant youth protection concepts for your online game and advise you on the technical and organizational requirements in order to meet the legal requirements and avoid liability risks.
• Parental responsibility: The responsibility for children’s media consumption lies primarily with the parents, who should ensure that their children only play age-appropriate games. Parents should inform themselves about the content of games and monitor and control their children’s use. There are various technical ways to control children’s media consumption, e.g. by setting up usage time restrictions or using parental control software. Open communication with children about the dangers of the internet is also very important in order to promote responsible media use. As a lawyer, I also advise parents on their rights and obligations regarding the protection of minors and support them in protecting their children from harmful content. Together we create a safe and positive gaming experience for all age groups.
• Preventive measures: In addition to the legal requirements, there is also the option of taking preventative measures that go beyond the minimum requirements. For example, you could build additional security features into your game that allow parents to restrict access to certain content or functions. Implementing reporting systems for inappropriate behavior by other players can also help to create a safe and friendly environment. By proactively taking responsibility, you not only help to protect children and young people, but also strengthen the positive image of your game and your company. As a media law attorney, I can help you develop and integrate meaningful preventative measures into your game to promote the protection of minors while providing a positive gaming experience.
• International aspects: If you want to distribute your game internationally, you will also have to deal with the youth protection regulations of other countries. These may differ considerably from German regulations and require careful examination and adaptation of your youth protection measures. In some countries, for example, there are mandatory age verification systems for all online games, while in other countries the focus is on self-regulation by the industry. Failure to comply with foreign youth protection regulations can not only lead to legal consequences in the respective country, but can also damage the reputation of your game and your company internationally. As a lawyer with experience in international media law, I can support you in identifying the relevant youth protection regulations in your target markets and adapting your localization strategy accordingly in order to operate in a legally compliant manner worldwide.

E-sports: Legal peculiarities in a dynamic market

E-sports has developed from a niche to a global phenomenon and is now an important part of the gaming industry. However, this rapid growth is also accompanied by new legal issues that are important for teams and organizers as well as for the players themselves. As a lawyer specializing in e-sports law, I will guide you through this dynamic market and help you to master the legal challenges. After all, failure to comply with the specific legal framework in e-sports can quickly lead to disputes, reputational damage and financial losses. It is therefore essential to deal with the relevant legal aspects at an early stage and to seek professional support.

• Contracts with esports players: Esports players conclude contracts with teams or sponsors that should regulate all key aspects of the collaboration. In addition to salary issues, advertising obligations and codes of conduct, notice periods, regulations on prize money and the transfer of image and marketing rights are also important. As esports athletes are often considered employees, the contracts must also comply with labor law regulations, particularly with regard to social security, vacation and sick leave (Sections 611 et seq. of the German Civil Code). In addition, the often international orientation of esports teams and tournaments must be taken into account, which raises questions of applicable law and international contract design. As a lawyer for e-sports law, I support you in negotiating legally compliant and fair contracts with esports players that protect both your interests and the rights of the players and comply with international standards.
• Image rights: Image and video rights play a central role in e-sports, as events and tournaments are often broadcast live and recorded. It is therefore essential to observe the image rights of the players and to obtain appropriate consent before publishing or marketing image material (Section 22 KUG). This applies in particular to the use of images and videos for advertising purposes, which is not permitted without the express consent of the persons depicted. The transfer of image rights to sponsors or event organizers should also be clearly regulated by contract in order to avoid disputes later on. As a lawyer with experience in media and personal rights law, I can help you obtain the necessary consent and draw up legally secure agreements on the use of image rights in order to safeguard your e-sports activities.
• Tournament and league rules and regulations: Participation in e-sports tournaments and leagues is generally subject to its own rules and regulations, which are drawn up by the organizers or league operators. These rules and regulations can contain far-reaching provisions on game procedures, behavioral obligations, anti-doping rules and sanctions for rule violations. As a team or player, it is therefore essential to be familiar with these rules and regulations and to comply with them in order to avoid disqualification or other sanctions. You should also check whether the rules and regulations are compatible with applicable law, in particular antitrust and competition law, and do not contain any undue disadvantages. As a lawyer for e-sports law, I support you in the examination and interpretation of tournament and league rules and regulations and help you to understand and enforce your rights and obligations as a participant.
• Association structures and governance: E-sports is increasingly characterized by association structures that influence the regulation of the sport and the organization of competitions. These associations set rules and standards, settle disputes and represent the interests of their members vis-à-vis third parties, such as publishers or politicians. Membership of an association can therefore be advantageous for teams and players in order to take part in recognized competitions and benefit from the association’s services. However, it is also necessary to carefully examine the association’s statutes and regulations in order to know your own rights and obligations and to avoid being unduly disadvantaged. As a lawyer with expertise in association and club law, I can advise you on the advantages and disadvantages of association membership and support you in safeguarding your interests within the association structures.
• Competition and antitrust law: With the increasing professionalization and commercialization of e-sports, competition and antitrust law issues are also becoming more important. This applies in particular to the structuring of exclusive contracts, the organization of leagues and tournaments and the marketing of broadcasting rights. For example, exclusive ties of players or teams to certain leagues or the monopolistic position of individual organizers may violate the ban on cartels and be illegal. The allocation of broadcasting rights can also be subject to antitrust restrictions, particularly if it leads to market foreclosure or disadvantages for competitors. As a lawyer specializing in competition and antitrust law, I can support you in structuring your e-sports activities in accordance with the applicable competition law regulations and avoiding legal risks.

Conclusion:

The gaming industry and e-sports in particular offer enormous opportunities, but are also associated with complex legal challenges. As a developer, esports player or event organizer, you should tackle these challenges at an early stage and seek professional advice. This guide can only provide an initial overview and is in no way a substitute for individual legal advice. With my expertise as a lawyer for IT, media and e-sports law, I am at your side to ensure that your projects are legally compliant and successful. Contact me today for a no-obligation initial consultation and benefit from my experience in the gaming industry. Together we will secure your creative achievements and pave the way for your success in the gaming universe!

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.