How to Protect Your Game

Before I pursued the life of a professional game designer, I went to law school. I didn’t particularly enjoy the experience, but the insights that I learned there have served me well in both my design career and in starting my own business. One key takeaway: you always need a good lawyer on your side. Lawyers, however, can be very expensive and intimidating. When do you need a lawyer and what legal issues impact you as a designer or entrepreneur in the gaming industry?

To help answer those questions, I interviewed my good friend Stephen McArthur.

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Stephen is a brilliant attorney and an expert in gaming IP law.   Stephen isn’t just a lawyer, though. He is a gamer at his core and his passion shows in the interview. The first few questions are about Stephen’s background, and we get into the useful information towards the end.  Enjoy!



  • Hi Stephen, Please tell us a little about yourself and your background


I was a competitive gamer since before “Esports” was a word. Indeed, I was born and raised in the dark, dark times of “Cyberathletics”. I used my tournament winnings from competitive gaming to fund my way to an Ivy league law degree, which I earned nine years ago. Since then, I’ve devoted my life to the nexus of gaming and the law, representing everyone from the largest game publishers in the world to startups and indie developers. I even represent a few standard “entertainment” companies like Legendary, though my passion will always be with the video game industry. I even go to every PAX and Gencon and write it off as a business expense even though I’m attending as a fan. Shhh, don’t tell the IRS.


  • What got you interested in doing game IP law specifically?


My first job in law school was as a clerk at an intellectual property boutique in NYC where we represented Dan Brown in a copyright lawsuit against another author. I thought the legal issues were fascinating, so I took every class Columbia offered on copyrights, trademarks, and patents. Out of law school, I got a job at a white-shoe NYC firm representing the RIAA against Limeware, the very service I had just used a few years earlier to download Weezer’s entire Pinkerton album. While I was still passionate about the subject matter of the law I was practicing, I wanted to focus on different clientele – obviously video game companies. So, I moved out to L.A. and joined an IP firm in the entertainment industry.


Unfortunately, it did not have very many video game clients except for one giant litigation involving Call of Duty with about 25 attorneys involved. Through dealing with other attorneys who represented video game companies, I realized that none of them were gamers, and were mostly Hollywood “entertainment lawyers” that just happened to represent video game companies. The rest were students just out of law school with no actual experience or legal training that could not offer the quality of work that any serious game company needs. There was a huge, unfulfilled need for game companies to hire a sophisticated and professional attorney who knew their industry inside and out. So, I created my own boutique law firm about two years ago to fill the gap.


  • Many people are confused about the world of trademarks, patents, and copyrights. Can you please clarify these three items and how they apply to the game world?


In short, a copyright is any creative work fixed in a tangible medium of expression. For games, that means source code and all game assets, including art and music.


A trademark is a symbol, word, or sound that represents a company or product and shows the source of that product. Your game title is a trademark. The name of your company is a trademark. The logo and slogans are trademarks as well. An easy way to think about it is in the context of Nike. The word “Nike” on a shoe is a trademark because it shows you the source of that show. The swoosh is a design/logo that also shows that the source of the shoe is Nike. The phrase “Just Do It” is the same: a slogan that shows you that the source of the show is Nike. Thus, all are trademarks.


A patent is a new invention. Patents are less applicable to games than trademarks or copyrights, especially since the Supreme Court gutted software patents a few years ago. However, patents are extremely important to any company on the cutting edge of gaming and especially hardware companies such as those in the virtual reality space.


  • How do you advise an aspiring game designer with regards to protecting their game idea / IP?



The first step a game designer or CEO of a game company needs to make is to educate himself on the basics of intellectual property. There are innumerable pitfalls a company can make if they do not know where to look. One basic example is the independent contractor issue. Common sense tells you that if you hire someone to do work for you, such as programming, and you pay them to do it and tell you what the end product should look like, then you would own that code that they create. Unfortunately, relying on “common sense” in the legal world is a fool’s error. The independent contractor actually owns the underlying copyright in the above situation and is simply licensing it to the company to use on a limited basis. Only if the independent contractor agreement specifically names all of the contractor’s work as a “work for hire” will the copyright be assigned to the Company. It is incredible how many CEOs make that error and how badly it can screw their company and software under the right circumstances.


But the single most important thing you can do to protect your brand and game is to simply register the trademark for your game name the second you settle on a title. Trademark registration is immensely useful, not expensive, and can be done up even on an “intent to use” basis up to three years before you actually release the game. Consequences for failing to register, or for failing to have an attorney do a good clearance search and encroaching too close on someone else’s registration, can be dire.

Even Blizzard made exactly this mistake a few months ago when its attorneys got lazy and did not do a proper clearance search before they tried to register Overwatch as a game title: The owners of the previous Overwatch mobile game trademark registration could have gotten a preliminary injunction and a court order to prevent Blizzard from releasing its game. I’m sure they were given a very nice payout by Blizzard to settle the case.


The basic steps every game company needs to make to protect their IP are:
(1)  draft a written partnership agreement or create the proper corporate structure to ensure ownership of valuable IP stays with the company;
(2) have a work-for-hire agreement with each independent contractor that does any work at all with the company;
(3) register the trademark on their game title the day they come up with the name, even if it is years before release; and
(4) register the copyright on their source code and game assets within three months of releasing the game.


  • How important is it to protect your game or company Brand? What are the best tools to do this?

If you want a game that is more than just a flash in the pan, it is incredibly important. Using a tool like Legalzoom is penny wise and pound foolish. It does nothing for you but provide a wizard to fill out the same forms you could fill out yourself on the USPTO website, and does not provide you any substantive guidance or legal advice. While I am obviously biased, I strongly recommend hiring a brand protection attorney in the games space like myself to advise you on what steps to take and how to properly register. Attorneys can evaluate your unique product and company and tell you exactly what you need to do and why you need it. When it comes to your brand and your intellectual property, you do not want to screw around with non-attorney services or cheap, “value” attorneys.

  • Do you have advise for structuring a partnership agreement or working relationship for people who want to work on a game together?

A partnership agreement can help to lay out the terms of the relationship and ownership of the IP. But it doesn’t give any liability protection. So forming an LLC or some other business entity is preferred. The exact type of business entity and the state you want to incorporate in depends on where your business is principally located, your goals for the company, and how it is funded.



  • What book or other resources do you recommend for people to learn more about the legal side of gaming?


Fellow games-lawyer Zachary Strebeck has written an e-book here:
I also recommend the several articles I’ve written for Gamastra on video game law, which can all be read here:


  • How can people get in touch with you?


I’m pretty responsive to emails at , or just through the contact form of my website over at



How to Make Your Game a Hit at Gen Con

As part of my series on publishing your games, I’m excited to interview Scott Elliott, game industry veteran, VP of Business Development at Gen Con, and long-time friend.   While my last article focused on using conventions to pitch your tabletop game to other publishers, Scott focuses on how you can self-publish and get the word out at Gen Con.

I can tell you from personal experience that his strategies work.  Stone Blade Entertainment launched its first game at Gen Con 2010, and our success there provided the foundation for the company today.  There is nothing more exciting than the feeling of players first getting to demo and purchase your game, and for tabletop games, Gen Con is the best place to experience that.

Gen Con is sold out for exhibitor space this year, but if you want a chance to attend Gen Con 2016 to game, network, and plan your presence at Gen Con 2017, all you have to do is sign up for a chance to win a free 4 day pass!


Even if you aren’t going to Gen Con, many of Scott’s tips will be valuable to you.  There is a lot of great info in this interview, including:

  • How Scott got his start in the gaming industry
  • Timeline to ship and market your game leading up to a convention
  • How to apply for and get a Gen Con Marketing Fellowship
  • Logistics of a successful booth
  • Costs to exhibit and tips for presence at the show
  • How to contact Scott and others at Gen Con staff for more information

For anyone who aspires to publish their own tabletop games, use the below tips to set a concrete timeline now for 2017.  Deadlines have a magic power to help turn aspirations into realities.  Set one now and start filling in the gaps between idea and product.  I’ll give more tips on the publishing process (including insight into Kickstarter and other crowdfunding options) in the weeks and months ahead to help you along the path.  If you’ve ever thought about starting your own game company, think about the next 18 months as your window to make it happen.


The most trustworthy facial hair in gaming

Thanks for taking the time to answer these questions.  You and I have known each other for a long time, but for those in our audience who don’t know you can you please introduce yourself?

SE: In the early 1990s, like many others, I fell in love with Magic: the Gathering. I enjoyed competitive play, but found that I was a better event organizer and judge, so that’s where I focused my efforts, eventually advancing to become a level 3 judge, judging nationals, Pro Tours, Grand Prixs and so on. I organized tournaments in the St. Louis region in the early 2000s, including an invitational series. Fun times! All that experience led to an opportunity in the games industry with Upper Deck. I managed organized play and was directly involved in games rules systems, the judge program, and had a small role (as did most of us non-designers there) in game development. After six years at UD, I joined the team at Gen Con in 2009.

During my time at Gen Con I have had the privilege of helping to coach hundreds of game companies on strategies and tactics for success. My current title is Vice President of Business Development and some of my day-to-day work involves helping exhibitors and sponsors plan for their presences at the show, licensing the Gen Con brand, and planning the Georgia Street festival area of the show, where we have larger-than-life gaming, bands, a beer garden, and food trucks.

I owe a lot of my company’s success to our initial presence at Gen Con 2010.  For an aspiring game designer / publisher, how can Gen Con help them succeed in the industry?

SE: Stone Blade’s initial presence at Gen Con in 2010 was a knockout. There was tons of buzz about Ascension at the show. There were pretty specific reasons why you guys were so successful at Gen Con. 2010 was the year that Gen Con launched the Marketing Fellowship Program, as a component of Entrepreneurs’ Avenue. For those that don’t know, Entrepreneurs’ Avenue is an area in the exhibit hall where companies that have no priority points (meaning they have not exhibited at Gen Con in the last four years) have the chance to secure a single one hundred square foot (SQFT) booth for $1,000. It is hands-down the best deal in event marketing for games. The Marketing Fellowship program requires companies to submit a presentation explaining how they will succeed at Gen Con. The application process is really intended to provide new companies with a simple list of questions that they need to answer for themselves, in order to be successful at the show. As an incremental benefit for being among the best applicants, six companies are chosen annually to have their booth bumped up to a two hundred SQFT booth, and to receive some additional free advertising to help drive traffic to their booths.


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Have a Plan to Stand Out in the Exhibit Hall

The choices that Stone Blade made to be successful at Gen Con are a good roadmap for others to follow to succeed there, too.

  1. Highlight your strengths! Stone Blade focused on presenting your interesting art, world-class game designers (which implied world-class game design), and storyline.
  2. Hit your milestones for advertising success! Advertising for your presence at Gen Con is important in three phases, and with three audiences.

Early phase: (January – May) Preaching to the converted. Activate your base. Telling your existing fans early that you will be attending Gen Con will help you considerably. These folks will be able to help spread the word from mouth-to-ear that their favorite game is going to be showcased and available to buy and play at the show. This is also the time of year when you will need to confirm that you have a base of demo team members available to help at the show. Your demo folks are almost always drawn from early adopters or superfans anyway, so you are being efficient and smart with your communications, by ensuring you tell them first.

Peak advertising phase: (May – August) Speaking to the masses. This is the time of year when spending real advertising dollars on social media ads and activating Gen Con’s marketing elements is a top priority for the majority of companies that advertise their presences through Gen Con’s official marketing channels. Now, admittedly, I have a profit-driven reason to say these things are good, since they directly benefit me and my employer. Nonetheless, I can tell you that we also have math to support this idea. Gen Con’s email newsletter (yes, email-based marketing is alive and well!) has an open rate that is often in the 30-40% range, and we see that convert into hundreds or thousands of clicks per link. Companies investing in our email advertising for their KickStarter campaigns have shared with us the visible spikes in their backers after our emails go out.

Onsite advertising phase: (Annual show dates) Onsite advertising is more important for companies with multiple games or brands represented, and for companies with larger dedicated booth footprints or event schedules. Much of the preparation for this phase requires 1:1 coaching from the Gen Con team.

Since Gen Con’s exhibit hall sells out completely every year, it will be important to contact during August to inquire about being included among companies interested in space in the exhibit hall, whether in Entrepreneurs’ Avenue, or in the general exhibit hall.

Why do you think Gen Con has become such an icon in hobby gaming?
SE: I don’t think it’s a stretch to say that contemporary hobby gaming, just like the modern Gen Con itself, wouldn’t be around, if it weren’t for the history of Gen Con and its role as a key place to launch new games & new expansions. There is a great intersection of eager hobby gamers who want to be the first to have the newest-to-market games, and companies who want to see the marketplace seeded by excited game players, who will spread the good news about the best and brightest game offerings during the time of year when many folks are planning for their holiday shopping later that fall. Alongside those core gamers we have seen thousands of new-to-Gen Con attendees from the Midwest region, and beyond. Those moms, dads, grandparents, and kids represent the future of gaming, and become hobby gamers by means of being introduced to the community at Gen Con.

Seeing attendees and demo experts teaching new players and kids how to play their most-favorite games is one of my favorite things.

Gencon Attendees Eagerly Await the Hall Opening…


For someone looking to debut a game in Gen Con 2017, what do you recommend they start doing now?

SE: It’s never too early to work on scripting and practicing your game demos. As a salesman of games, when I did game pitches, I would work up a 30 second, 90 second, and three minute demo of any game I was trying to sell. The assumption is that you and your demo team will be able to shift into a longer-form demo, should the attendee show enough interest. It’s so important to be able to capture their attention and get right to the fun quickly in product demos, just like it is in elegant game design.

Changing gears to focus on production: Do anything you can to ensure that you pull your production schedule forward far enough that you have product landed in the US and clear of customs in time for slow-shipment by land to Gen Con. Seeing companies waste thousands of dollars to air-freight late product bums me out – and it is one of the easiest ways to help protect your margin. Don’t blow it on shipping!

Keep an eye on what advertising you see in Gen Con’s email newsletter for 2016. This will help to give you an idea of what other companies are doing now. Nothing better than learning from those more experienced, and improving their ideas. You can sign up for our newsletter here.

Start working on a plan for the layout of a 10×10 booth and a 10×20 booth. If you have the space to mock it up in a garage or office storage room, it is helpful to see what can actually fit in that size space. I like to do banner production in advance, so there is time to place it in my booth mockup, and see how it looks, check line-of-sight, etc. Building out a booth mockup will teach you a lot, and if you have actual pictures of your mocked-up booth, those will be assets that you can include as part of your booth application.

How can someone best set themselves up for success at Gen Con?

SE: Prepare early. Build a timeline, and follow it. Build a budget. Ask questions, even if you think they seem too simple or embarrassing to ask.

Plan for 50% more booth staff than you think you need. Otherwise, you will get sick from missing bio breaks and rest breaks.

Sleep sometimes.

How can my readers best connect with you or other Gen Con representatives?

For Exhibit-related questions:
For Events-related questions:

To reach me directly, email scott.elliott at the same domain as those listed above.

Gen Con 50 will be held in Indianapolis, IN August 17 – 20, 2017

How to Get Your Game Published

This post has been updated and posted on steemit!

Today, I answer the number one question I get asked from aspiring game designers: “How do I get my game published?”   I’ve published games both on my own and through other companies, and I’m here to give you concrete tips to publish your game, along with a free 4 Day Pass to Gencon 2016!   

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Gencon is the best place for aspiring designers to meet other passionate gamers and to show off your game to publishers and potential fans.  If you want to be a professional game designer, you need to connect with others in the industry.  Gencon is a great place for this.   Gencon is where Stone Blade Entertainment (then Gary Games) was founded and where we launched our first product.  Gencon is where I truly became a part of the gaming industry, and now I want to give one of you that same opportunity.  All you have to do for a chance to win a free 4-day pass is sign up for my email list.  One lucky winner will be selected on March 1, 2016! Sign up now!

Now, on to the article!  

To publish a tabletop game, you have two options:

  1. Sell your game to a publisher – This allows you to spend more of your time on game design and less on running a business, but relies on other people to  believe in and execute your vision.
  2. Self publish – This gives you more control over the final product and more profit if your game succeeds, but costs a lot more time and money. It is also harder to have a big success without a publisher behind you.

The choice of which path to pursue is a personal one, but I recommend that you try selling your game first, so that you can learn what works and build a reputation before publishing on your own.

First, one word of caution.  Don’t try to publish until you’ve got a great game! Go through the Core Design Loop multiple times. Get a great reaction from playtesters you don’t know.  Don’t waste your time or a publisher’s time until you’ve got a great game to pitch.

Now that that is out of the way, lets focus on option 1 above. 1 Here are seven tips to help sell your game to a publisher.

7 Tips for Getting Your Game Published


1. Go to conventions.  Pitching publishers at conventions is a very effective tactic.  Game companies go to conventions to interact with players and to meet with others in the industry.  Often there are people there that can review your games or at least who can connect you to others who can.  It is far harder to say no to someone in person than over email and far easier to make a compelling pitch face-to-face.  Research where the companies you love will be and go there! In the hobby gaming tabletop industry, the best show for this is Gencon.   Sign up for my email list now for your chance to win a free pass!

2. Be respectful!  Every publisher has a ton of demands on their time and gets a lot of game pitches.  Be respectful and kind even if they don’t have a chance to review your game.  Ask for contact info and be ready to follow up after the show.  Offer to send a copy of the game and rules for them to review.

3. Have a good elevator pitch.  Your game idea should be easy to communicate by referencing something they know and something original (e.g. its a deckbuilding game with magic combat and plays in 30 minutes).  Nice looking art / prototypes can help a lot too but aren’t necessary.

4. Be able to explain the core of your game in 15 minutes or less. Publishers are busy and they will judge your game in the first 5-15 minutes.  If you can’t get the core game loop across in 15 minutes, you will not sell your game.  This doesn’t mean that the game has to be playable in 15 minutes, just that it can be explained and understood.  Practice explaining the game to friends before bringing it to a publisher.

5. Develop relationships and add value. A lot of times the best way to get in front of publishers is to volunteer.  Contribute value by helping out at conventions, doing QA testing, contributing articles and community forum posts, etc.  Don’t expect payment or immediate return- be kind, clearly communicate, exceed expectations, and be overall great to work with.  Publishers will be FAR more likely to listen to your game pitch and help you get it to a purchasable point if they like you and you already help them.  Building relationships and community is the most important thing you can do to ensure your success in the long term.


6. Take feedback well. If a publisher gives you feedback- don’t argue with them!  I see this all the time and I can’t believe how often it happens.  Take the feedback, say thank you, and ask them if they would be willing to review the game again if you addressed some of the issues.  Everyone loves to have their opinion respected, and publishers will be more likely to take your game if they feel a sense of ownership and contribution to the final result.

7. Don’t focus on money at first.  Even in the best case scenario, hobby game designers usually make only $1000-$5000 in initial purchase with 2-5% royalty on a game.  Only a select few well-known designers do better than that.  If you’ve never published a game before, expect to get the low end of that scale.  When just starting out, it is more important to get your game published than to try and haggle with a publisher.  After you’ve established yourself with a successful game or two, it will become much easier to ask for more money on your future designs.  The one thing you should negotiate for is to get the rights to your game back if it doesn’t get published within a reasonable amount of time (e.g. 2 years) or if it goes out of print.  This ensures your design doesn’t get orphaned with a publisher who doesn’t support it.

Your job as a designer is to get the publisher to try your game and to be open to working with you. After that, it will come down to whether they like the game and if it fits in their game portfolio.  Do your homework to give yourself the best chances.  Research the different publishers in your industry so you can pitch to those who are most likely to want the type of game you’ve designed. Do not take it personally if a publisher doesn’t take your game.

Whether or not a publisher will take your game is ultimately out of your control. I know that can feel frustrating, but if you keep following the steps above and keep improving your games, at some point you will be able to publish.  Remember that building relationships with publishers is more important than what happens with any one game.  Take the opportunity now and sign up for your free chance to go to Gencon and get in the game!