IP in Game Development. How to Organise Game Rights Before They Block Your Launch or Investment

There are 3 months until launch. The publisher sends you a list of documents for due diligence. You look at it and realize that you do not have half of them. And some of them you never had.

This is not a scenario invented for the purposes of this article. It is a situation regularly brought to us by game development studios , indie and mid-sized , that spent months focusing on the product while treating the rights to the game as “something I’ll sort out later”. The problem is that “later” usually means too late.

Disorganized IP , copyright in the code, graphics, music, and storyline , can block a launch, bring negotiations with a publisher to a halt, and prevent an investment round from closing. Not because the game is bad. Because the studio cannot prove that it owns the rights to it.

In this article, I will explain the risks associated with chaotic IP documentation at a game development studio, the requirements imposed by Polish copyright law, what publishers and investors check during due diligence , and how to put the rights to your game in order before they bring your business to a standstill.

Key concepts you need to know

Before we move on to specific risks and recommendations, it is worth clarifying a few terms. They will appear throughout the article.

Why IP in game development requires a separate approach

A video game is not a single work. It consists of dozens, sometimes hundreds, of works combined into one product: source code, 3D models, textures, animations, music, sound effects, dialogue, storyline, and user interface.

The Court of Justice of the European Union settled this in its judgment of 23 January 2014 in C-355/12 Nintendo v PC Box: a video game is complex material comprising both a computer program and graphic and sound elements that have their own creative character. Each of these elements may be subject to separate copyright protection.

What does this mean for your studio? Three things:

1. Each element of the game may have a different creator , a programmer, graphic designer, composer, or writer. If they work on a B2B or freelance basis, the rights to their work are not transferred to you automatically.
2. Game code and graphics are subject to different legal regimes. Under Article 74(3) of the Copyright Act, the rights to a computer program created by an employee belong to the employer by operation of law. But graphics, music, or the storyline are subject to the general rules under Article 12 , the employer acquires the rights only to the extent arising from the purpose of the employment contract.
3. Code modification falls within the scope of economic rights, whereas modification of graphics or documentation generally does not interfere with exclusive rights. This means that a studio must use different contractual clauses for programmers and for graphic designers or musicians.

Add game engines (Unreal Engine, Unity), audio middleware (FMOD, Wwise), open-source libraries, fonts, and stock assets , and you have a complex network of licensing dependencies in which a single oversight can block distribution on a particular platform.

Seven risks that can bring your business to a standstill

Failure to obtain an effective transfer of rights from freelancers

This is the most common problem. A freelance graphic designer created the main characters, issued an invoice, and received payment. But they did not sign an agreement transferring economic copyrights.

Article 53 of the Copyright Act requires written form for validity. The Court of Appeal in Szczecin confirmed that failure to comply with the written-form requirement renders the transfer invalid , the rights remain with the creator. An email setting out the arrangements, a Slack message, or an oral agreement , none of these forms transfers economic rights.

In addition, Article 41(2) provides that an agreement covers only the fields of exploitation expressly listed in it. If your agreement specifies “digital reproduction” but not “making available to the public online” , you do not have the right to distribute the game digitally.

Gaps in the rights to employee-created works

An employer acquires the rights to an employee-created work under Article 12, but the scope of that acquisition is limited to the purpose of the employment contract. The Court of Appeal in Białystok held that a mere connection with the employment relationship is not sufficient for a work to be considered employee-created , the work must have been created in the performance of the employee’s duties.

Assets created “on the side” , for example, by a graphic designer employed to work on the UI who creates character concept art in their spare time , may not be covered. The rights to them remain with the employee.

Breach of engine or middleware license terms

Game engine licenses have specific restrictions. Unreal Engine 4 charged a 5% royalty on revenue above USD 3,000 per quarter. From 1 January 2025, the “Launch Everywhere with Epic” program reduced the rate to 3.5% , but only if specific distribution criteria are met.

Unity introduced the controversial Runtime Fee, which triggered a wave of criticism across the industry.

Audio middleware (FMOD, Wwise), physics libraries (Havok), vegetation generation tools (SpeedTree) , each of these tools has separate licensing terms. If your audio middleware license does not cover console distribution, and consoles are the publisher’s priority, renegotiating the license could delay the deal by months.

Failure to register a trademark

Merely using the name of a game or studio does not provide full protection. If another company registers an identical or similar trademark in Class 9 (software) with the EUIPO before you do , you may lose the right to the name just before launch.

Unclear status of AI-generated assets

Content generated entirely by AI (Midjourney, Stable Diffusion, DALL-E) is not a “work” within the meaning of Polish copyright law. Only a natural person can be a creator, and AI has no legal personality.

In its 2024 position paper, ZAiKS stated explicitly that generative AI outputs should be treated as part of the public domain. In its report “Copyright and Generative Artificial Intelligence”, the European Parliament confirmed that content generated entirely by AI should not qualify for copyright protection.

Moreover, the AI Act (Regulation 2024/1689) does not regulate copyright issues relating to AI outputs. The Regulation concerns the development and use of AI systems, but intellectual property issues concerning their output remain outside its scope.

For a game development studio, this creates a dual risk:

1. AI-generated assets cannot be presented as IP assets during due diligence , they reduce the value of the portfolio.
2. An AI output may reproduce parts of protected works contained in training data , using it may infringe third-party copyrights.

Failure to regulate IP between co-founders

Two founders part ways. There is no agreement governing who owns the game’s IP. Each claims that the idea and the rights are theirs. The game is in early access on Steam. Without a shareholders’ agreement or a rights transfer agreement, the dispute could continue for years.

Documentation chaos consuming management’s time

The lack of an IP rights management system means that every new freelancer, every new asset, and every change to the project creates a risk that no one is monitoring. Management spends its time putting out fires instead of growing the business.

What publishers and investors check during IP due diligence

IP due diligence is a legal review of the studio’s intellectual property portfolio. Its purpose is to confirm that the rights to all elements of the game actually belong to the company and that its processes comply with the law.

Based on PFR recommendations for technology startups, a standard IP data room for a game development studio should include:

Due diligence typically takes anywhere from a few days to 2 weeks. If the documentation is incomplete, the process takes longer, and in extreme cases the publisher or investor may withdraw from negotiations.

A studio with a well-organized “IP Data Room” secures better negotiating terms. The absence of such a folder signals to the other party that the transaction carries increased risk.

Contact us , we will help you prepare your IP documentation before due diligence.

How to put the rights to your game in order , an action plan

Step 1: audit the entire project’s IP

Make a list of all elements of the game: code, graphic assets, music, sound effects, storyline, dialogue, and UI. For each element, record:

1. Who created it (first name, surname, type of engagement , employment contract, B2B, freelance).
2. The legal basis on which it was created (employment contract, contract for specific work, B2B agreement, no agreement).
3. Whether you have a document confirming the transfer of rights (a written agreement specifying the fields of exploitation).
4. Whether the work was formally accepted (acceptance report, approval of the deliverable).

Remember: economic rights are transferred to the acquirer when the work is accepted, not when the agreement is signed (unless the agreement provides otherwise). In game development, where assets are created iteratively in sprints and milestones, define the time and procedure for the “acceptance” of each deliverable in the agreement.

Step 2: review agreements with freelancers and subcontractors

Check each agreement for compliance with four requirements:

1. Written form , the handwritten signatures of both parties (Article 53).
2. Express transfer of economic copyrights , not a license, unless you have deliberately chosen a licensing model.
3. Fields of exploitation appropriate to the planned commercialization , digital distribution, streaming, merchandise, creation of derivative works (DLC, sequels).
4. The right to create derivative works , without it, you cannot modify assets or use them as the basis for new content.

Good negotiation practice: leave liability for IP infringements (defects in title to products) uncapped. This is standard in IT agreements and expected by publishers.

Step 3: create a license map

For every engine, middleware tool, library, font, and asset from an external source:

1. Identify the licensor and type of license.
2. Check its territorial scope and duration.
3. Confirm that your distribution and monetization model (PC, consoles, mobile, F2P, premium) is covered by the license.
4. Review the sublicensing terms , whether you can transfer the rights to the publisher.
5. Check reporting and royalty obligations.

Step 4: register trademarks

Register the game name and studio name as trademarks. Registration with the EUIPO (European Union Intellectual Property Office) provides protection throughout the EU.

The classes most commonly used by game development studios are: Class 9 (software, computer games), Class 41 (entertainment and educational services), and Class 28 (games and toys). The EUIPO procedure provides for a 3-month opposition period. Protection lasts for 10 years and can be renewed.

If you are planning to enter the US market , consider registration with the USPTO.

Step 5: AI use policy

If your studio uses AI tools to generate assets, develop internal rules:

1. Document prompts and the human creative process involved in each asset.
2. Distinguish between AI-generated content (not protected) and AI-assisted content (potentially protected if a human made a substantial creative contribution).
3. Mark which assets contain AI-generated elements in the production pipeline.
4. Assess the risk of infringing third-party rights , AI is trained on other people’s work and may reproduce parts of protected works.
5. Include provisions concerning the status of AI-generated content in agreements with clients and partners.

The criterion for assessing copyright protection is whether a human made free and creative choices, selecting, modifying, and arranging the material in a way that bears their “personal imprint”. Simply entering a prompt and accepting the first result , no protection.

Step 6: creator onboarding procedure

Implement a checklist to be used for every new freelancer or subcontractor:

1. Signing an agreement before work begins (not after the assets have been delivered).
2. Reviewing the fields of exploitation in light of the planned commercialization model.
3. Briefing on the rules for using AI tools and open-source components.
4. Establishing a procedure for accepting deliverables (acceptance report).
5. Archiving the signed agreement in the IP Data Room.

Step 7: periodic IP review

Schedule a quarterly review: new game elements, new creators, new tools, and changes to licenses. A system that is not updated during production becomes outdated faster than you think.

How we can help you

Putting a game development studio’s IP in order is not a one-off exercise involving amendments to a few agreements. It means creating a system that covers documentation, onboarding processes, licenses, and preparation for due diligence.

We combine copyright law, contract law, and corporate law into a single model tailored to how game development teams work , iteratively, with freelancers, and using multiple tools and engines.

Our support includes:

1. Project IP audit , analysis of the legal status of the rights to each element of the game, identification of documentation gaps, and risk assessment.
2. Preparation and implementation of agreement templates , standardized templates for freelancers, subcontractors, and employees that reflect the specific nature of game development (a dual regime: code vs. assets).
3. License map , review of the licensing terms for engines, middleware, and external tools in light of the planned distribution model.
4. Preparation of an IP Data Room , a folder containing well-organized rights documentation, ready to be shared with an investor or publisher.
5. AI policy , rules for using generative tools, documenting creative contributions, and labeling AI-generated content.
6. Trademark registration , applications filed with the EUIPO and the Patent Office of the Republic of Poland.
7. Due diligence support , preparing the studio for a legal review by a publisher or VC fund.

Put your IP in order before someone asks for the documents

A video game is a complex product in which every element , from code to music , has its own creator, its own rights, and its own formal requirements. Polish copyright law imposes specific conditions: written form, expressly specified fields of exploitation, and formal acceptance of the work. Failure to comply with any of them may mean that the studio does not own the rights to its own game.

Well-organized IP is not a legal abstraction. It is infrastructure without which you cannot close an investment round, sign an agreement with a publisher, or release a game without the risk of claims.

If your studio is preparing for a launch, negotiations with a publisher, or an investment round , check the status of your rights before the other party does. Contact us , we will identify the gaps and help you close them.

Frequently asked questions

Is an invoice from a freelancer sufficient evidence that the rights to the assets have been transferred?
No. Article 53 of the Copyright Act requires written form for validity. An invoice confirms that the service was performed and paid for, but it does not transfer economic copyrights. Without a written agreement expressly specifying the fields of exploitation, the rights remain with the creator.

Do I need a separate agreement transferring the rights to each element of the game?
Not necessarily a separate agreement, but every element (code, graphics, music, storyline) must be covered by an agreement that expressly specifies the fields of exploitation and confirms the transfer of rights. Remember that code is subject to different rules than graphics or music , programmers have a reduced set of moral rights (two instead of five), and code modification falls within the scope of economic rights, which cannot be said of the modification of graphics.

Can I legally use AI-generated assets in a commercial game?
Content generated entirely by AI is not protected by copyright , it belongs to the public domain. You may use it, but this entails two risks: (1) you cannot present it as an IP asset during due diligence, (2) AI may reproduce parts of protected works contained in training data, exposing you to claims. If a human made a substantial creative contribution (selection, modification, arrangement) , such an asset may qualify for protection.

What does a publisher or investor check during IP due diligence?
They verify whether the studio actually owns the rights to all elements of the game. They review rights transfer agreements with employees and freelancers, licenses for engines and middleware, trademark registrations, the list of open-source components, NDAs, and any IP disputes and claims. Missing documentation or gaps in agreements may delay or block the transaction.

Do I have to register the game name as a trademark?
You do not have to , but without registration, your position in a dispute over the name is dramatically weaker, especially in foreign markets. EUIPO registration costs from 850 EUR for one class and provides protection throughout the EU for 10 years. If another company registers an identical mark before you do, you may be forced to change the game’s name just before launch.

How quickly can IP be put in order at a studio that has never done this before?
It depends on the scale of the project and the number of creators. An audit and the preparation of a remediation plan usually take a matter of weeks. Implementing the changes , completing agreements, renegotiating terms with freelancers, and preparing an IP Data Room , may take anywhere from several weeks to several months. The sooner you start, the less there will be to fix and the lower the costs.