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A company makes a great game called "AwesomeGame" that costs 20€.

They sell thousands of copies of the game, but ultimately go bankrupt.

What is the status of the game at that point? Do any intellection-property rights or protections of it still exist?

feetwet
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Fortune
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2 Answers2

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A bankrupt company's assets are transferred to its creditors. This includes intangible assets such as trademarks, copyrights, and other intellectual property.

Whoever ends up with the rights to the game can continue to market and distribute it, or use legal means to prevent others from doing so.

phoog
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    This is correct. However, I guess the actual question should have been "what if the creditor doesn't care, and stops selling the game?", and this is where the gray area of abandonware comes in… – o0'. Jul 01 '15 at 17:38
  • @Lohoris, abandonware and other forms of orphaned works is a question (or a whole family of questions) in its own right. – Mark Jul 01 '15 at 19:17
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    @lohoris Note that your point is not peculiar to intellectual property or to bankruptcy. A creditor could acquire any sort of property through a bankruptcy and not particularly care about it. Like the creditor might acquire a factory with old machines that are obsolete and virtually worthless, etc. Or someone could inherit property -- intellectual, personal, or real -- that they don't care about. Or someone could own a piece of property for decades and lose interest in it. Etc. – Jay Jul 01 '15 at 20:15
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    Also note, just because someone is not actively using their intellectual property does not mean that they have abandoned their rights to it and that others may then freely appropriate it. It's not normally up to someone else to decide that you are not using your property and so they can take it. Like, if someone broke into your house and carried off, say, a chair, a court would be unlikely to accept as a defense that "he hasn't sat in that chair for five years, I figured he didn't care about it any more". There are specific laws about when physical property is considered abandoned. I'm not ... – Jay Jul 01 '15 at 20:21
  • ... sure about abandonment of intellectual property, and if there are laws they likely vary from place to place. If you're thinking that you want to start producing and marketing a game or whatever to which someone else has the legal rights, I'd contact them and ask them how much they want for the rights. If they really don't care about it, maybe they'll sell it cheap. I definitely would not just assume they don't care. How do you know what plans they have? And even if you know they don't have any plans, they could still prosecute. – Jay Jul 01 '15 at 20:23
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    @Jay I'm not sure about France (as the question is tagged,) but, at least here in the U.S., it works as you described. Just because you're not actively using your IP rights to something doesn't mean you in any way forfeit those rights nor does it grant anyone else any rights to use it. – reirab Jul 01 '15 at 20:45
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    Basically seemingly abandoned work is still subject to copyright law, and copying/deriving from that work is gambling that nobody is going to enforce it. – jamesdlin Jul 02 '15 at 18:54
  • @Jay: Real property like a factory would typically be registered, and would thus be discovered in bankruptcy proceedings and negotiations. Ownership of tangible artifacts located within the factory would generally transfer to whoever acquired the factory, even if those artifacts were e.g. hidden in a secret room and were unknown at the time of the negotiations. The unique problem with intellectual property is that there may be no definable owner. If there were a requirement that whenever an estate or bankruptcy is settled someone must be recorded as owner of any as-yet-undiscovered IP... – supercat Jul 06 '15 at 22:56
  • ...and in the event of the owner's bankruptcy or death the right to any and all such materials would fall to whoever acquired the intermediate owner, that would create a clear chain of ownership. Without that, though, there will be a lot of material for which nobody could ever be identifiable as an owner. – supercat Jul 06 '15 at 23:00
  • @supercat I can see a scenario where company A goes bankrupt, assets are divided between creditors B and C, and in that process everyone forgets about A's copyright in a video game so no one writes down anywhere whether B or C acquires that copyright. Then a few years later B liquidates and sells all its assets to D and E, again no one considering the copyright. Now someone is interested in that copyright. Who owns it? I presume a court would decide, but they might have a hard time coming up with a rational basis for a decision. I'd readily agree that is more likely to be an issue with ... – Jay Jul 08 '15 at 16:33
  • ... intellectual property than with real property. I'd think people are far less likely to just forget a piece of land or a factory when dividing up assets. But it could certainly happen, especially if the real property is of minor value compared to other assets. If a company owned 100 factories, 200 stores, and 1 vacant lot that they bought 100 years ago and never used, it's not impossible that it would be forgotten. U.S. states all have laws to deal with ownership of real property that has been abandoned, so it happens. And one could certainly imagine other non-tangible assets being ... – Jay Jul 08 '15 at 16:37
  • ... forgotten as easily as IP, like stocks, contracts, easements, etc. – Jay Jul 08 '15 at 16:38
  • @Jay: Your point regarding things like investments is a good one, though in most such situations someone will know of the asset's existence and to whom it used to belong. If someone finds the code for an apparently-unpublished game in a file cabinet bought from a warehouse during a company's liquidation and there is no other evidence anywhere of the code's ever having existed, it would seem reasonable to say that whoever sold the cabinet abandoned any claim to the materials therein, but if the company had sold the rights prior to its dissolution, the purchase should retain its rights. – supercat Jul 08 '15 at 17:00
  • @Jay: Personally, I think the copyright law should have provided only a brief period of protection for unregistered materials, in which case someone who found such materials would be entitled to make use of them once that period expired of nobody else registered them first. As it is, ownership ends up being defined by a lack of competing claims of ownership, but without any required means of registration there can be no means of proving a lack of claims. Further, if someone publishes such material and someone else appears with what is claimed to be a contract signed by the former... – supercat Jul 08 '15 at 17:09
  • ...company at a time when records no longer exist of who had signature authority or what the signature should look like, by what means could such a contract be evaluated? – supercat Jul 08 '15 at 17:10
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My understanding (IANAL, but was told some of this by a lawyer) is that (at least in England) unclaimed assets after a liquidation vest in the state as bona vacantia and intellectual property that the liquidator can't sell (not unusual) is included in this.

I see the UK government now has a department that deals with this and will consider offers for such property: https://www.gov.uk/buy-intellectual-property-bvc8

No idea if France takes a similar approach.

Rich
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