Is making a fan made game illegal?

Discussion in 'General Discussion' started by FlameEX, Sep 25, 2015.

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  1. Andar

    Andar Veteran Veteran

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    What some people might forget is that there is a difference between being illegal and being sued.


    Making a fangame is by definition always illegal. But as long as you're unknown and not public (especially as the original licence holder doesn't know about you), then you can continue your work at your own risk.


    That risk comes into being when the original licence holder detects your work. And then he can choose what to do about it.


    SOME companies might like your work and give you the licence to use their property (with or without written contract, with or without payment or other agreements). And as soon as you get that licence, you're no longer a fangame but a licenced game and legal.


    SOME companies will prefer to ignore your work, still pretending it doesn't exist to avoid the hassle of legal contracts (usually only in countries where copyright is not voided by allowing illegal use).


    SOME companies will inform their lawyers and force you to remove and delete your fangame - sometimes even suing you with damages for illegal use of their trademark.


    And now think about this:


    A lot of people do fangames because they want to boast about them ("look what I have done"). But the more publically known you are, the higher the chances of your work being detected by the licence holder, resulting in higher chance of being sued for your work.


    So if you hope not to get caught, then this means you have to hope not to get known for your work through the internet. Which means you can't boast about your game anywhere....


    It's easier in the long run to come up with your own ideas if you want fame.
     
    #21
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  2. Rikifive

    Rikifive Bringer of Happiness Veteran

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    Totally agree with Andar.

    As for me, I don't want fame, nor anything like this. I just want to bring fun to the others and *something silly here, that I'm not going to say out loud*, but still I have that risk on mind and nothing justifies me from that.
     
    #22
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  3. Sennie

    Sennie Demon Slayer Veteran

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    I agree with @Andar

    I don't want fame, but he's right when saying that coming up with your own ideas and stories is the best way to go :) I'm currently creating my own and first game and it is 100% original which really makes me feel proud :)

    I hope whoever is creating fan games can get permission to release them as that would be amazing to make your own version of a famous already released game! :) But like Andar says, it is better come be original with your own ideas.

    Matthew.
     
    Last edited by a moderator: Sep 30, 2015
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  4. Aoi Ninami

    Aoi Ninami Veteran Veteran

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    I can't agree with this (and Andar did not actually say that). Sure, you can feel proud of a good original creation; but fanworks can also be great works of art. Sometimes the way you experience an existing game or story can give you the inspiration to create a work of art that just wouldn't have existed otherwise. Whether or not it's "better" to spend time on such works is a subjective judgement. Of course, it's good to be aware of the current legal situation, which the posts in this topic have helpfully clarified.
     
    #24
  5. TheOriginalFive

    TheOriginalFive Veteran Veteran

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    I did actually consider the legal aspects before starting work on the Mechanical Armageddon. Since the current developers have no interest in continuing HeroSmash, I tried to get their permission to continue its story.

    The gist of their replies was that I can only publish the result for non-commercial purposes. Thus, no ads, donations, or sales. As for the assets, I am using as little as possible from the original game.

    Future works of mine will not be based on existing properties as fanworks, though.
     
    #25
  6. Chiakscare

    Chiakscare Resident Tifaholic Veteran

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    You know it's gotten real when Yanfly's post count goes +1.
     
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  7. bgillisp

    bgillisp Global Moderators Global Mod

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    @The Original Five: You can actually stil run into trouble if the IP ever gets sold. The current holder of the IP might not care, but the new holder might. That's what happened with some of the adventure game remakes and fan games, the original IP holder didn't care, but then someone else bought them out and the new holders did care, so they got a cease and desist.

    In short, it's just risky.
     
    #27
  8. TheOriginalFive

    TheOriginalFive Veteran Veteran

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    I admit that's still a possibility, but the current developers have no interest in letting go of HeroSmash. Unless you meant in a bankruptcy situation.
     
    #28
  9. Spearnear

    Spearnear Villager Member

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    The real question is- Has anyone ACTUALLY (meaning, a documented case) been ordered a C&D or lawsuit for making and releasing a non profit RPG Maker game with someone else's assets?  It's actually kind of hard to find solid info on this.  Doesn't seem like it ever happened. All it would take is one example of someone suing over a non profit RPG Maker game. 

    (EDIT: Removed my useless banter)
     
    Last edited by a moderator: Oct 5, 2015
    #29
  10. Andar

    Andar Veteran Veteran

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    Enforcing a copyright infringment is not always possible, and a lot of the sites that post rips are hosted in countries where the government doesn't care about them.


    And when it comes to individual games, it depends on the copyright owner knowing the existence of the game with the ripped resources.


    However, some statements are safe to give as absolute:


    - you WILL BE BANNED from this site if we catch you distributing rips. Sometimes it might require the original copyright holder to inform us to identify the infringment (if we aren't sure, we won't take action), but you will be banned if that happens.


    - use any of Disney's property, and you'll get a C&D from them as soon as they find you. Other companies might decide that the cost of a C&D or a lawsuit isn't worth going after you, but Disney has proven they will.


    And in your last example: those games weren't sued because of being too popular - the popularity was the reason why the IP holder found it and moved against it.


    As always stated, copyright law requires that the IP holder moves against you, it is not a criminal law where the government can move on its own. And to move agains you, the IP holder has first to find you.


    All fan games are automatically illegal of trademark infringment, but if the trademark holder doesn't know of your existance (and they have better things to do than search the web every day), then you might get away with your illegal activity.


    Until you become popular enough that your game is detected by the copyright holder of course...
     
    #30
  11. Kes

    Kes Global Moderators Global Mod

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    I think there is a deeper question here, which needs to be kept in mind.

    The question sort of implies that someone can do something illegal and immoral as long as they don't get caught.  Is the rightness or wrongness of the action to be determined by whether you can get away with it?  Does something (theft of someone else's property) become immoral only when found out?
     
    #31
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  12. Spearnear

    Spearnear Villager Member

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    If something is illegal there should be documented consequences, to further deter wrongdoers.  A great example is post #30.  A very strong threat and a proven history of disciplinary action.  Only a fool would challenge that.

    Back to game resources- I can't see it as true morality myself, when no profit is being made at all.  It's purely law to me.  Another form of fan fiction, but with visual representations.  Morality issues for me is something like this - http://kotaku.com/stop-making-porn-with-my-characters-bioshock-creator-p-1442945516

    It seems there is no popular examples or any examples at all of RPG Maker game authors getting sued and as usual it's left as a grey area.  Seems the only people worried are forums or Steam since evidence can be traced back and get THEM in trouble.

    Disney makes sense, not that I play any Disney games.  Sounds like mostly the American companies are petty.  Maybe someone thought I was talking about Disney?  Japanese all the way!

    I'll take my leave now and resume lurker status, seems kind of hostile (protecting one's forum integrity is a good thing, so I understand) in this topic.  Would of loved to stay though, but Andar is making me nervous to be honest, lol.

    (Never said I was distributing anything here, by the way.  Never plan to submit a single thing nor make a game.  Was but a question of interest to further educate myself.)
     
    Last edited by a moderator: Oct 5, 2015
    #32
  13. mlogan

    mlogan Global Moderators Global Mod

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    But again - if we are looking at the question of "is it illegal" - the answer is yes, no matter who gets caught making what with what engine. It is still illegal. And at that point it becomes a moral issue - are you okay doing something illegal as long as you don't caught? And that is a question only you can answer, we cannot answer for you.
     
    #33
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  14. Andar

    Andar Veteran Veteran

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    Just for your info: several well-known japanese companies entered a partnership with Disney to get help in publishing their work outside Japan, and those properties are now included in that "Disney will go against any infringment".
    And that fact was probably one reason for choosing Disney as a cooperation partner.


    And there have been other japanese companies with similiar reactions, for example one who C&D'ed all fangames they found of a game series whose IP they ignored for ten years but wanted to restart and wanted all searches for the name should only link to their own pages during that relaunch.


    (no, I don't remember the name of that company)


    A lot of japanese companies have tolerated copyright infringment in the past, but not all - and it's not that all american companies are petty either.


    Read the question about "fanfiction" in the following FAQ-list (sorry, no direct link possible, you need to click on it yourself, should be the fourth question) to understand more:


    http://www.davidweber.net/faqs/index/series:0
     
    #34
  15. captainproton

    captainproton Dangerously Nifty Veteran

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    Nintendo and Game Freak are both pretty well known for dropping the hammer on fan works which get too big for their britches.
     
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  16. jwideman

    jwideman Veteran Veteran

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    There's a guy on the hook for $4000 with The Pokemon Company for advertising a "Pokemon party," near where PAX is being held. They skipped the C&D and went straight for damages, despite the guy losing money (he claims) doing it. He got away with it for years, and now he's in big trouble.

    The lesson here is, just because someone's getting away with it now doesn't mean it's a good idea. On the other hand, you might be pleasantly surprised if you ask for permission first. But if you don't, a C&D is NOT the worst possible outcome.
     
    #36
  17. captainproton

    captainproton Dangerously Nifty Veteran

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    I just read that article and am flabbergasted by the Pokemon Company's attitude here. Would it really have been that hard to just send a notice saying "Use a different flyer"? Would it have made a difference if he used store-bought stationary? This seems like a really bullsh*t move which could actually cost them money by turning people off their product.
     
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  18. Galenmereth

    Galenmereth I thought what I'd do was Veteran

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    @captainproton: The guy made money off their IP for years without asking for permission. That is by itself entirely illegal and he knows it; no warning is required. He also sold alcoholic drinks at these parties / gatherings, and was also making up alcoholic drinks with Pokèmon themes. $4000 is nothing for this kind of illegal activity, and the reason action has to be taken is because this can directly or indirectly hurt the company's reputation and characters.

    It is illegal to use other people's IP without permission. You break the law and get caught, you get a fine. It's really, really simple.
     
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  19. Rukiri

    Rukiri I like to make Action-RPGs Veteran

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    It's always going to be "it depends" as a lot of companies are pretty chill on the matter, but others are not!  Square-Enix for example throws the ban hammer on pretty much every popular Chrono Trigger project! It's been ten years since resurrection and I'm still mad about it, but hey it's their property and they can do whatever they want!   

    Look at all the Zelda fan games, you rarely here any of them being stopped by Nintendo but when Mario comes into play the ban hammer is thrown...  
     
    Last edited by a moderator: Oct 5, 2015
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  20. captainproton

    captainproton Dangerously Nifty Veteran

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    In that case, I amend my statement. The few articles I read said nothing about the kind of profits he made. That is a different situation entirely.
     
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