Hiring Artist for Licensed Content?

[marshzd]

Hey guys,


I want to do a spinoff of a popular game series, but have cameos from some of the main characters. I know that I can't sell the game, I have no problem with that. It would have to be distributed for free.


My question is, am I allowed to pay an artist to create sprites from the licensed characters? Does that break copyright?


I've commissioned fanart before and as long as it's limited release, they've been fine (they only sell 100 copies), but I haven't moved into the world of video games.


I also understand that many of you aren't lawyers, but I thought maybe you could get me pushed in the right direction.


Thanks so much!

 

[Archeia]

I know it's possible considering fangame releases in Japan but Im not sure about America. I mean artists still sell keychains and other merchandise with licensed characters, so I guess it depends?

 

[Sharm]

My understanding is that technically fan art isn't legal but no one cares unless the fan art starts competing with the interests of the person who actually owns the intellectual property rights.  If your game gets too popular it may get shut down but the likelyhood of getting a fine is low.

 

[Andar]

There are two different things to consider here - copyright and trademark.


And the trademark is the greater problem - if you check the products with easter eggs or cameos or whatever that exist, you'll see that the exact name is often slightly changed.


That is because names can be trademarked, but not copyrighted - as long as a name is different, you can always claim that that is only an accidental similiarity, especially if the rest of the game is not similiar.


So as long as the artist doesn't use a direct copy of existing material, but makes something similiar with all his own works, then the artist you hired holds the copyright on his work. Only if anyone names that work with a trademarked name, then you get into problems.


And that is also the difference between a fangame and a cameo: A fangame is illegal because it uses the name of the original and basically tries to be claimed as part of that work.


A completely different and orginal game that only uses unrelated cameos (best if they're from different series) and has its own name is not a fangame in the strict definition.

 

[marshzd]

So as long as the artist doesn't use a direct copy of existing material, but makes something similiar with all his own works, then the artist you hired holds the copyright on his work. Only if anyone names that work with a trademarked name, then you get into problems.


And that is also the difference between a fangame and a cameo: A fangame is illegal because it uses the name of the original and basically tries to be claimed as part of that work.


A completely different and orginal game that only uses unrelated cameos (best if they're from different series) and has its own name is not a fangame in the strict definition.

So if I wanted to do a Breath of Fire spin-off (it's not, but just a usable example), I should NOT call it "Breath of Fire: Blah blah blah", and that will allow some flexibility in terms of the copyright/trademark?


Just trying to clarify.

 

[Sharm]

It's more like if you want to make a Breath of Fire spinoff it's best to only lightly reference anything in the franchise.  If you call it Breath of Dragons and still have a blue haired boy who can change into a dragon named Ryu and a Blond haired winged princess named Nina and A Cat warrior and so on then you're going to be treated pretty much the same as if you'd called it Breath of Fire: Rebirth.

 

[bgillisp]

@marshzd: Honestly, the laws are weird. In some parts of the world they are required to sue you and get your game taken down (especially for fan games) else it is considered abandoning the IP. I'd honestly suggest you consult a lawyer for official legal advice if you are determined to make a fan game or a spinoff of a popular game just because we are not lawyers here and therefore we don't know the ins and outs of all the international laws affected.


Though, my honest suggestion is just make your own game with your own ideas and such. Then the problem is completely solved.