Are free fan games illegal??

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Master100000

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Ok so... I've had a finished game sitting in my storage drive for about 2 years now. It was never released because it was meant to be a learning experience back in 2011. However over the years i updated the game and it now looks like one of the professional projects. Here lies my problem. This project has several Final Fantasy characters and skills. Cloud Strife, Squall, Sora. Omnislash, Renzokuken. Etc. I do not have permission from square enix to use these characters but i have seen Several fan games over the years that were available for download for free. "FOR FREE". Can i release my fan game on this website for free or do we have a privacy policy? Because i also have a Megaman game which is completely finished which was also never released when the rpgmakervx.net website still existed lol. Any advice is greatly appreciate.
 

Trihan

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The bottom line is that any project containing copyrighted material without permission from the original creator is illegal; whether you want to release your game is up to you, but if Square Enix decides to send you a cease and desist order you would have to remove it.
 

TheTitan99

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Generally speaking, you cannot use other people's/company's IPs without their consent. Like, you could not make a Mario game unless Nintendo said okay. There is SOME wiggle room here, getting into vague fair use laws. Typically, parodies are the most exempt (you'll see characters from shows and games appear on Robot Chicken for instance, and they clearly have not bought the rights to use Mario or The Doctor). But even then, it's a murky, grey area.

So, rule of thumb, avoid using IPs that you didn't make. While there are instances where it's okay to use, the criteria is confusing, and you're better off avoiding the whole thing.
 

Kyuukon

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firststef

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What if i find a picture of an artist on the net and create a story based on that.

For example my profile pic. if it,s from an artist and it says ,,Xero,, down the bottom and i do a story about a guy named xero with almost identical appearence does that make it illegal?
 

Kes

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Why not ask the artist if you can use the image?
 

firststef

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Well... Let's say he somehow started a series with that art. And told a story of that character. But now he abandoned it halfway trough. If i were to make a game based on the art i would want to have the same name for the main character and some of the story, but also change it a bit. Right now he is the canon version. But if i were to actually finish the game i would be the canon one. I want to do this because i want to finish this very story. For all his fans that never got the ending. He will never end it. But the community at leaast diserves some ending to that.
 

Trihan

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If you only use the character name/concept and that isn't copyrighted (it's harder to copyright ideas than tangible assets) that would probably be okay. As long as you didn't use any of the artist's original artwork at all.
 

firststef

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Yeah it's harder to copyright ideas than assets. Like street fighter and fighting warriors- the game that look med the same. But just to be sure... Where can you see if a character is being copyrighted or not?
 

Trihan

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If the series is available online, the footer of the website will likely list the copyright information.

Note that as well as copyright, you can have registered trademarks, which is when a company DOES reserve the exclusive right to use a particular name, word or phrase. It's unlikely that the artist did this with Xero as it's a fairly generic name, but be on the lookout for it regardless.
 

Andar

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and as usual, one aspect gets completely ignored - trademark violations are not the same as copyright violations.

"fangames" are usually automatically in trademark violations as soon as they use the name of the game they're a fan of - because it's very rare that a gamename isn't a registered trademark and the laws concerning trademark violations are a lot more strict than those about copyright violations.
Most takedown notices people get are based on trademark violations, not copyright infringment, because it is easier to proof a trademark violation than a copyright infringment (the fangame just has to use the original game's trademarked name, no need to search for copied resources or the like).

So yes, as soon as you say "this is a fangame of" instead of "this is an independent game inspired by", the fangame becomes illegal.

Edit - addon:
That there are so many fangames still on the internet is because not every IP holder searches for them to take them down - but they are illegal and could be taken down as soon as the IP holder hears about them.
And since in some countries the law requires the IP holder to take action or risk the entire copyright on it, it usually means that you get taken down as soon as your fame on the internet rises to get you detected. Only obscure and bad fangames stay online for a long time...
 
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firststef

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So... Back at my question. If for example the artist names his story: Story of Boringness does that mean i can't name my game Story of boringness? Or that i can but if he wants at some point to sue me he can because he thought of the name first?
 

Andar

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Names cannot be copyrighted, they can only be trademarked - and while copyright is free, a trademark costs a registration fee and all trademarks can be checked in the online databases for them.
So unless that artist paid about 300$ (based on the trademark fees here in Germany) for registering "Story of Boringness" as his trademark, he has no claim on that name. And you can check that in the trademark database of your country.

However, if your story does not only share the name but the story concepts as well, then that does go above the copyright treshhold for content and it will be a copyright violation.
 

Gastin

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Sigh, easy fix. Take all the original art and remake it in photo shop, etc. As long as their is a small variation in the art (like a vouple of pixels and shadeing. This maes it "your interpretation " of their art. However this is a slimy trick. They cant sue you, doesnt mean they might not try though.
 

Andar

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@Gastin That is not only a "slimy trick", it also will not work - so better forget about this.

You need the original artists agreement to be allowed to edit any resource, otherwise that in itself is a violation of copyright.

It really needs to be redone instead of copied to count as "your interpretation" instead of "an edit" or "an edit solely done for copyright violations". And redoing it is usually more work (especially for someone who is not an artist) than making a new picture.

Even if you trace the original that might get you a problem and not accepted as an interpretation - and tracing will usually result in a worse quality than the original.
 

chungsie

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Names cannot be copyrighted, they can only be trademarked - and while copyright is free, a trademark costs a registration fee and all trademarks can be checked in the online databases for them.
So unless that artist paid about 300$ (based on the trademark fees here in Germany) for registering "Story of Boringness" as his trademark, he has no claim on that name. And you can check that in the trademark database of your country.

However, if your story does not only share the name but the story concepts as well, then that does go above the copyright treshhold for content and it will be a copyright violation.
In the USA, you can do copyright via postage, or you can pay the Library of Congress for a copyright. I know this because I was working on getting a copyright for a song I had been working on for several years, it's like 85$ for media such as manuscript for performance. Never looked into TMs to be honest, but if you want a company, it helps cover all things created under the name you choose, and logo even. But even then you still have to patent or copyright any goods made under the TM.
 

Gastin

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@Gastin That is not only a "slimy trick", it also will not work - so better forget about this.

You need the original artists agreement to be allowed to edit any resource, otherwise that in itself is a violation of copyright.

It really needs to be redone instead of copied to count as "your interpretation" instead of "an edit" or "an edit solely done for copyright violations". And redoing it is usually more work (especially for someone who is not an artist) than making a new picture.

Even if you trace the original that might get you a problem and not accepted as an interpretation - and tracing will usually result in a worse quality than the original.
Yeah, i either buy my stuff or get a hold of the artist to use stuff. You get better quality and theirs no fuss that way usually.
 

Andar

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@chungsie no, that is registering a copyright what you pay for. The copyright itself is always automatic and free, it's just that an unregistered work might result in someone else trying to claim it as their own. But there is no requirement to register for copyright.

But trademarks have to be registered, there is no "unregistered" TM like there can be "unregistered copyright"
 

TomatoKing

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I think you are a bit wrong there Andar, at least for the US.

How are trademark rights earned?

The key word in this question is “earned.” Trademarks are not born; rather, they must be earned. By using a mark in connection with a good or service, the user acquires some trademark rights. Interestingly, though trademarks are protected under both state and federal law, you do not have to register a trademark in order to have it protected (there are advantages to doing so which will be discussed below).

You can register a trademark as intent of use when you don't have a product, but to get a trademark all you have to do is to do business with the brand name (search for trademark by use), someone might try to trademark it via official channels but you can contest it and you have to prove that you have been using it for business prior to the TM registration.

The difference between a trademark and a copyright is that copyright is granted upon creation, while trademark is granted upon legitimate use, but neither have to be registered to be contestable.

Also, intent to use trademarks only last 6 months.
 
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