{"id":3839,"date":"2026-08-17T12:45:06","date_gmt":"2026-08-17T12:45:06","guid":{"rendered":"https:\/\/sawaryn.com\/?p=3839"},"modified":"2026-10-26T12:41:38","modified_gmt":"2026-10-26T12:41:38","slug":"game-development-ip-poland-due-diligence","status":"publish","type":"post","link":"https:\/\/sawaryn.com\/en\/publikacje\/game-development-ip-poland-due-diligence\/","title":{"rendered":"IP in Game Development. How to Organise Game Rights Before They Block Your Launch or Investment"},"content":{"rendered":"

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.<\/p>\n

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 \u201csomething I\u2019ll sort out later”. The problem is that \u201clater” usually means too late.<\/p>\n

Disorganized IP<\/strong> , 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.<\/p>\n

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<\/a>, 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.<\/p>\n

Key concepts you need to know<\/h2>\n

Before we move on to specific risks and recommendations, it is worth clarifying a few terms. They will appear throughout the article.<\/p>\n\n\n\n\n\n\n\n\n\n\n
Concept<\/th>\nWhat it means<\/th>\n<\/tr>\n<\/thead>\n
Economic copyrights<\/strong><\/td>\nThe right to use and dispose of a work in specified fields of exploitation. They may be transferred to other persons or entities , unlike moral rights, which are inalienable.<\/td>\n<\/tr>\n
Fields of exploitation<\/strong><\/td>\nDistinct ways of using a work (e.g. digital reproduction, online distribution, streaming). An agreement transfers rights only in the fields expressly listed in it , if a field is not specified, no rights are transferred in that field.<\/td>\n<\/tr>\n
Employee-created work<\/strong><\/td>\nA work created by an employee as part of their duties under an employment relationship. The employer acquires the rights to it by operation of law, but only to the extent arising from the purpose of the employment contract.<\/td>\n<\/tr>\n
IP due diligence<\/strong><\/td>\nA legal review of the studio\u2019s intellectual property portfolio , verification of whether the rights to all elements of the game actually belong to the company. Conducted before an investment, an agreement with a publisher, or an exit.<\/td>\n<\/tr>\n
Written form required for validity<\/strong><\/td>\nA requirement arising from Article 53 of the Copyright Act: a rights transfer agreement must be concluded in writing (handwritten signature). An email, Slack message, or scanned signature is not sufficient.<\/td>\n<\/tr>\n
Trademark<\/strong><\/td>\nA sign (name, logo) registered with a patent office that grants the exclusive right to use it in commerce. Merely using a name without registering it does not provide full protection.<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Why IP in game development requires a separate approach<\/h2>\n

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.<\/p>\n

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>: 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.<\/p>\n

What does this mean for your studio? Three things:<\/p>\n

    \n
  1. Each element of the game may have a different creator<\/strong> , 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.<\/li>\n
  2. Game code and graphics are subject to different legal regimes.<\/strong> 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.<\/li>\n
  3. Code modification falls within the scope of economic rights<\/strong>, 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.<\/li>\n<\/ol>\n

    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.<\/p>\n

    Seven risks that can bring your business to a standstill<\/h2>\n

    Failure to obtain an effective transfer of rights from freelancers<\/h3>\n

    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.<\/p>\n

    Article 53 of the Copyright Act requires written form for validity<\/strong>. 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.<\/p>\n

    In addition, Article 41(2) provides that an agreement covers only the fields of exploitation expressly listed in it<\/strong>. If your agreement specifies \u201cdigital reproduction” but not \u201cmaking available to the public online” , you do not have the right to distribute the game digitally.<\/p>\n

    Gaps in the rights to employee-created works<\/h3>\n

    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 Bia\u0142ystok 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\u2019s duties.<\/p>\n

    Assets created \u201con 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.<\/p>\n

    Breach of engine or middleware license terms<\/h3>\n

    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 \u201cLaunch Everywhere with Epic” program reduced the rate to 3.5% , but only if specific distribution criteria are met.<\/p>\n

    Unity introduced the controversial Runtime Fee, which triggered a wave of criticism across the industry.<\/p>\n

    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\u2019s priority, renegotiating the license could delay the deal by months.<\/p>\n

    Failure to register a trademark<\/h3>\n

    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.<\/p>\n

    Unclear status of AI-generated assets<\/h3>\n

    Content generated entirely by AI (Midjourney, Stable Diffusion, DALL-E) is not a \u201cwork”<\/strong> within the meaning of Polish copyright law. Only a natural person can be a creator, and AI has no legal personality.<\/p>\n

    In its 2024 position paper, ZAiKS stated explicitly that generative AI outputs should be treated as part of the public domain<\/strong>. In its report \u201cCopyright and Generative Artificial Intelligence”, the European Parliament confirmed that content generated entirely by AI should not qualify for copyright protection.<\/p>\n

    Moreover, the AI Act<\/a> (Regulation 2024\/1689) does not regulate copyright issues<\/strong> 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.<\/p>\n

    For a game development studio, this creates a dual risk:<\/p>\n

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

      Failure to regulate IP between co-founders<\/h3>\n

      Two founders part ways. There is no agreement governing who owns the game\u2019s IP. Each claims that the idea and the rights are theirs. The game is in early access on Steam. Without a shareholders\u2019 agreement<\/a> or a rights transfer agreement, the dispute could continue for years.<\/p>\n

      Documentation chaos consuming management\u2019s time<\/h3>\n

      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.<\/p>\n\n\n\n\n\n\n\n\n\n\n\n
      Risk<\/th>\nSeverity<\/th>\nConsequence<\/th>\n<\/tr>\n<\/thead>\n
      No written agreement with a freelancer<\/td>\nHigh<\/td>\nDistribution blocked, claims for damages<\/td>\n<\/tr>\n
      Gaps in the rights to employee-created works<\/td>\nHigh<\/td>\nDispute over rights to elements of the game<\/td>\n<\/tr>\n
      Breach of engine\/middleware license<\/td>\nHigh<\/td>\nDistribution prohibited on a particular platform<\/td>\n<\/tr>\n
      Failure to register a trademark<\/td>\nMedium<\/td>\nLoss of the game or studio name<\/td>\n<\/tr>\n
      Undocumented AI-generated assets<\/td>\nMedium<\/td>\nLower IP valuation, risk of infringing third-party rights<\/td>\n<\/tr>\n
      No IP agreement between founders<\/td>\nHigh<\/td>\nDecision-making paralysis, dispute over ownership of the game<\/td>\n<\/tr>\n
      No IP management system<\/td>\nMedium<\/td>\nManagement time consumed by \u201cfirefighting”<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

      What publishers and investors check during IP due diligence<\/h2>\n

      IP due diligence is a legal review of the studio\u2019s intellectual property portfolio<\/a>. 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.<\/p>\n

      Based on PFR<\/a> recommendations for technology startups, a standard IP data room for a game development studio should include:<\/p>\n\n\n\n\n\n\n\n\n\n\n\n
      Document category<\/th>\nSpecific documents<\/th>\n<\/tr>\n<\/thead>\n
      Copyright transfer agreements<\/td>\nAgreements with employees and freelancers concerning code, graphics, music, and dialogue , with clearly specified fields of exploitation<\/td>\n<\/tr>\n
      License agreements<\/td>\nLicenses for engines, middleware, stock resources, fonts, and music , territorial and time limits, sublicensing rights<\/td>\n<\/tr>\n
      Trademark registrations<\/td>\nRegistration certificates for the game name, studio name, and logos<\/td>\n<\/tr>\n
      List of open-source components<\/td>\nList of libraries with their licenses, versions, details of modifications, and method of distribution<\/td>\n<\/tr>\n
      NDAs<\/a> and confidentiality policies<\/td>\nNon-disclosure agreements with employees, freelancers, and partners<\/td>\n<\/tr>\n
      Know-how documentation<\/td>\nArchitecture descriptions, production pipeline, repository access rules<\/td>\n<\/tr>\n
      IP disputes and claims<\/td>\nDemand letters, settlements, judgments, financial provisions<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

      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.<\/p>\n

      A studio with a well-organized \u201cIP Data Room” secures better negotiating terms. The absence of such a folder signals to the other party that the transaction carries increased risk.<\/p>\n

      Contact us<\/a> , we will help you prepare your IP documentation before due diligence.<\/p>\n

      How to put the rights to your game in order , an action plan<\/h2>\n

      Step 1: audit the entire project\u2019s IP<\/h3>\n

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

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

        Remember: economic rights are transferred to the acquirer when the work is accepted<\/strong>, 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 \u201cacceptance” of each deliverable in the agreement.<\/p>\n

        Step 2: review agreements with freelancers and subcontractors<\/h3>\n

        Check each agreement for compliance with four requirements:<\/p>\n

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

          Good negotiation practice: leave liability for IP infringements<\/a> (defects in title to products) uncapped. This is standard in IT agreements and expected by publishers.<\/p>\n

          Step 3: create a license map<\/h3>\n

          For every engine, middleware tool, library, font, and asset from an external source:<\/p>\n

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

            Step 4: register trademarks<\/h3>\n

            Register the game name and studio name as trademarks. Registration with the EUIPO (European Union Intellectual Property Office) provides protection throughout the EU.<\/p>\n\n\n\n\n\n\n\n\n\n
            Item<\/th>\nCost (online application)<\/th>\n<\/tr>\n<\/thead>\n
            1 class of goods\/services<\/td>\n850 EUR<\/td>\n<\/tr>\n
            2nd class<\/td>\n+50 EUR<\/td>\n<\/tr>\n
            Each additional class<\/td>\n+150 EUR<\/td>\n<\/tr>\n
            Opposition fee<\/td>\n320 EUR<\/td>\n<\/tr>\n
            Renewal of protection (every 10 years)<\/td>\n850 EUR<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

            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.<\/p>\n

            If you are planning to enter the US market , consider registration with the USPTO.<\/p>\n

            Step 5: AI use policy<\/h3>\n

            If your studio uses AI tools to generate assets, develop internal rules:<\/p>\n

              \n
            1. Document prompts and the human creative process involved in each asset.<\/li>\n
            2. Distinguish between AI-generated content (not protected) and AI-assisted content (potentially protected if a human made a substantial creative contribution).<\/li>\n
            3. Mark which assets contain AI-generated elements in the production pipeline.<\/li>\n
            4. Assess the risk of infringing third-party rights , AI is trained on other people\u2019s work and may reproduce parts of protected works.<\/li>\n
            5. Include provisions concerning the status of AI-generated content in agreements with clients and partners.<\/li>\n<\/ol>\n

              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 \u201cpersonal imprint”. Simply entering a prompt and accepting the first result , no protection.<\/p>\n

              Step 6: creator onboarding procedure<\/h3>\n

              Implement a checklist to be used for every new freelancer or subcontractor:<\/p>\n

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

                Step 7: periodic IP review<\/h3>\n

                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.<\/p>\n