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Could a brainstorming session lead to intellectual property issues?

Monday, 28 July 2014 | By Vanessa Emilio

A group of nine people that I am a part of is about to start developing a commercial video game. This will involve a number of brainstorming sessions, where people bring ideas along to a meeting and throw them up for discussion.


I was wondering what intellectual property problems this could entail, and if there are any legal processes that we should follow before starting development?


There are a few potential issues associated with this scenario that you should consider. You should all agree to sign a brief one page form (similar to a Memorandum of Understanding) covering the following:


1. Confidentiality: You should all agree confidentiality, to keep it within the group unless and until you need to consult someone else/an expert who will be under the same duty of confidentiality


2. Working arrangement: Agree how to work together, for example are they planning to all develop the ideas into a product, sell the ideas only to a game developer or will they continue to develop together under a company structure/partnership  or other arrangement.


3. IP: A working arrangement will help determine the ownership of the IP. For example, if they decide to go ahead as a company structure, they could/would register the IP (patent/trademark) as a company asset to protect it.


Alternatively, they need to agree who will own the IP and it depends on how they will structure the ownership of the actual product.


4. If you are just brainstorming and want to protect IP before deciding to go forward, you could include, in the one page agreement that contains protections and understandings including confidentiality, understanding of development phases and ownership to be agreed and also a clause detailing that any IP and concepts must be kept within the group unless all involved in the group agree to release.


Important Note: This type of IP clause is somewhat difficult to enforce as is all IP arrangements particularly when it comes to 'concepts' or 'ideas'. There is no copyright protection on an idea so essentially anyone could take any of the ideas they discuss in the group and develop it with no consequences. However, if you try to incorporate the discussions, ideas and concepts as an 'protected' agreed clause, it may be less likely for anyone to try to breach this. There is no secure way to protect an 'idea' or 'concept' that is legally foolproof but this is one of the best scenarios for dealing with this type of arrangement.


Hope that is clear and is of assistance. Please let me know if you require anything further.