UK: Part 1: Software Licensing In Video Game Development – A Practical Guide

Last Updated: 22 October 2019
Article by Thalya Merican

The European Court of Justice in Nintendo Co Ltd and others v PC Box Srl, Case C-355/12 considered the intellectual property protections available to video games, and came to the conclusion that video games are a hybrid product made of a complex combination of technical and artistic elements. While most are familiar with the intellectual property rights surrounding the latter element (think dance moves and tattoos), little attention is given to the vast range of software assembled together to produce the executable 'game code'.

From engines to hair/fur or leaf-generating middleware to integrated services via APIs, each and every component is distributed with licences that are, at the very core, permissions from the software vendor as to what, how, where and when that particular piece of software is to be used. These are set out in terms that are colloquially referred to as End-User Licence Agreements/EULA (Yoo-Lahs), or T&Cs (Tees-and-Sees). Neither sounds menacing in the least, but the mere mention of them may invoke a shudder of dread in many.

In 2014, a dispute between Epic Games and now-defunct Silicon Knights resulted in a $9.2million award to Epic Games and an order to destroy all unsold copies of Silicon Knight's games using Unreal Engine 3. Earlier this year, a public spat between game engine developer Unity and cloud development platform provider Improbable relating to a breach of Unity's T&Cs left developers using Improbable's instance of the Unity engine on SpatialOS hanging in uncertainty. These cases highlight the importance of reviewing those wordy licence agreements.

In this two-part series of articles, we hope to give budding video games developers some food for thought throughout their process of curating relevant technologies, libraries and tools.

Why bother?

Understanding the conditions under which a software component (no matter how small) is 'sold' to the studio is important to ensure that the terms sit comfortably with the studio's expected uses. By reviewing T&Cs, a studio can avoid unpleasant surprises by way of unintended breaches of the terms or being imposed additional licence fees, and can future-proof itself against having to renegotiate or reconsider the suitability of the tool in future projects.

An added benefit of systematically auditing technology used to produce the game code, is that it makes studios more attractive to funders such as investors or publishers who will conduct detailed due diligence on the IP rights incorporated into the game.

Convinced? Let's-a-go Mario

Bespoke/Proprietary Software

As much as possible, all intellectual property rights in software created for the game should be owned by, and not licensed to, the studio. By owning software, a studio would not need to consider what permissions are granted to it.

If any third party contractors are engaged to develop part of the game's code, then it is strongly advised that the studio enter into an agreement under which all intellectual property rights to the work they have created is assigned to the studio. This is because under intellectual property laws, the contractor is automatically presumed to be the original creator and owner of copyright in the code he/she writes, unless there is something written to the contrary.

Opportunity should also be taken to seek contractual promises and compensation for losses under the agreement in respect of the quality of the work delivered, particularly against any third party intellectual property infringement.

Third Party Software

The reality is that the bulk of the game's executable code will consist of a compilation of licensed third party software, interwoven through bits of bespoke code (as above) and OSS (see below). A studio would therefore need to be very careful with reviewing a software vendor's terms.

We set out some things to consider in the second part of this article here.

Open-Source Software (OSS)

It is widely accepted that the use of OSS shortens development phase, allowing expensive development resources that might be spent 're-inventing the wheel' for basic routine tasks, in favour of higher value custom work. However, the complexities behind the licensing structures of OSS are such that studios should be careful with the use of any OSS within its code.

There are currently hundreds of OSS licences in use, and these can very briefly be categorised in one of two distinct groups: permissive or restrictive licences. The important difference between both categories lies in how derivatives of the OSS are licensed onwards. What is considered a 'derivative' is still a contentious area, but this is generally understood to be any amendments, adaptations, or combinations of the OSS into the studio's proprietary software:

  • A restrictive licence or 'copyleft' would require that derivatives are licensed on the same terms as the OSS. A restrictive licence generally requires that the modified or derivative code be disclosed and distributed for the public. What is considered a 'derivative' will be subject to how an OSS is linked or combined with the game's code. What is certain is that if this involves static linking, i.e where OSS and code are permanently combined to make up the executable, the entire code base would be considered a derivative. In such a case, studio would need to distribute and disclose its entire code base under the same restrictive licence which can be a concern where considerable work has been put into proprietary software.
  • A permissive licence is slightly less prescriptive as to how derivatives are distributed. However, such licences often provide certain obligations to attribute and credit the original copyright owners (which can be achieved by way of a notice in the EULA, for example), or to take certain steps to redistribute the OSS with the original licence.

Suffice it to say, the complexity of OSS are such that a studio should not be so quick to integrate these without further consideration. Furthermore, if a studio is looking for support through a publisher, it should expect that a publisher may expressly request that OSS (in particular those subject to a restrictive licence) not form part of the code used for the game, or that their consent be obtained prior to its use.


The 'nitty gritty' technicalities of video game development can be easily overlooked in favour of the front-facing creative assets that players interact with.

However, let us not forget that a good few years of development and upfront financial investment (and very many tears) are dedicated to developing the technical framework that carries the storylines, music, and digital universe that keeps many a player up all night. The consequences of breaching a licence agreement can lead to extended development cycles, blocked pipelines and incurred costs on replacing technology/code. Conducting a tech 'health check' prior to use of any software and every so often thereafter is crucial to mitigating those risks.

We hope that this two-part piece helps those embarking on game development to feel a little less apprehensive towards software licence agreements as well as empowered to review their licence agreements as a way to keep a software provider in check.

"Checking, checking, checking" – Kadi 55-30, Destiny 2's loot hoarding Postmaster

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions