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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    No, profits don't make a difference in illegal activities.

    Even if he didn't make any profit, according to Galenmereths source he sold pokemon-named alcoholic drinks - and pokemon is targeted at minors mostly.

    And even if that wasn't the case - the activity might still be something you don't want to be associated with your own IP.

    And even if someone does not make profit and does not break the spirit of your property: Have you ever thought of what the people are talking about when they say they can't risk voiding the copyright?

    If you allow even a few people getting away with abusing the IP for non-profit reasons because you have absolutely no problem with what they're doing, then suddenly there comes a competing company selling a fangame they did.

    And if you try to stop them from profiting that, they go to court and claim "X allowed everyone else to make fangames - so he now has to allow us to make a fangame. And he can't claim any of the money we're making, because it's only compensation for our own work - he never charged anyone for the use of his IP"

    That is what all those C&D's against even small hobby projects are about - not neccessarily that the hobby project would harm the company directly, they only set up precedents that can be used to void the copyright if a competing company tries to do that simply to destroy your main source of income, so that they can dominate the market instead of sharing it with you.
     
    Last edited by a moderator: Oct 5, 2015
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  2. jwideman

    jwideman Veteran Veteran

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    A lot of people have this misconception that "not making a profit" makes it legal. But US law (and the law of all Berne Convention member countries, even if rights owners don't always pursue action in such situations) doesn't support this. As in the Pokemon example, the guy so much as says he thinks they only went after him because they got the idea he was making a profit.

    As for non-enforcement leading to being unable to enforce, that's only trademark. There's no such thing as copyright dilution. The choice to pursue action or tolerate is up to the rights owner, and rarely does anybody else discover the reasons for doing one or the other. As a rule of thumb, owners with more resources have lower thresholds. 
     
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  3. captainproton

    captainproton Dangerously Nifty Veteran

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    I should have been more clear. When I mentioned not knowing about the profits, I also meant that I didn't know about the alcohol or anything like that. The articles I read only talked about the flyer, and that it was a pokemon-themed party. That was it. Which is why I thought it was crap that the PC would sue the guy.
     
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  4. jwideman

    jwideman Veteran Veteran

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    It may have been crap, but they'd still have been in the right legally. The point I've been trying to make with this example is that if you infringe upon someone's copyright, however seemingly inoffensive, you risk serious penalties.
     
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  5. Nagasaki

    Nagasaki Phoenix Veteran

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    After reading this thread, it made me think on making an RPG fan-game from a now-defunct online game made by a Korean company. No profit pr whatsoever, just making an RPG in memory of that game. I might consider asking for permission first once it's done before letting others play it.
     
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  6. bgillisp

    bgillisp Global Moderators Global Mod

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    @Nagaski: I would still get permission. If they ever sell the IP you oculd get a C and D from the new holders of the IP. It's hapened before with this trend for remakes.
     
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  7. Nagasaki

    Nagasaki Phoenix Veteran

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    Yeah. Better be safe than sorry.

    BTW, for those who are wondering what game it is, it's KOG's creation, Grand Chase.
     
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  8. jwideman

    jwideman Veteran Veteran

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    Getting permission should be the very first step, always. Otherwise you may invest a lot of time - time you could be spending on a different project - only to be ultimately disappointed.
     
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  9. skipsandwich

    skipsandwich Villager Member

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    I'd like to point out that a parody or ironic imitation of a game would fall under fair use.

    https://en.wikipedia.org/wiki/Fair_use

    Generally, if your work is transformative, comments on the original, won't be mixed up with the original, and doesn't damage the original's ability to make money, you're good.

    So make your fan game sufficiently satirical, like the "Battlecreatures" concept mentioned earlier if you're going for a Pokemon-type thing.
     
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  10. Andar

    Andar Veteran Veteran

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    Yes, but there are two limits with that:

    1) Fair Use is a defense, not a right - which means to use that defense, you already have to be in court before a judge, with all the stress about that - and then the judge has to decide if your game was really a parody or if you pretended to be a parody to escape a fine.

    And let's admit it, there are some companies who do this to their small competitors simply because the process of judging (while sales are stopped) throws them out of business, even if theaccusing company knows up front that they will be defeated by that.

    2) A parody still can't use the logo and names of the original. That's why that defense won't work for a fangame - it's a defense against copyright infringment, but NOT against trademark violations.
     
    Last edited by a moderator: Oct 15, 2015
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  11. skipsandwich

    skipsandwich Villager Member

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    I think your clarifications are spot on.
     
    Last edited by a moderator: Oct 15, 2015
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  12. jwideman

    jwideman Veteran Veteran

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    Actually, trademark law also recognizes fair use, in the same way. But trademark infringement is more expensive to defend against, since you automatically lose if you don't get a lawyer.

    You could still make a Pokemon-like game that doesn't infringe either copyright or trademark, of course, but then you couldn't bank on the popularity of the existing IP.
     
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  13. ConkerMich

    ConkerMich Veteran Veteran

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    If you make profit you will be taken down.

    If you make a fan game for fun, you may be taken down. 

    If you make a game LIKE it, you are okay! 

    Be creative and make your own stuff!
     
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  14. jwideman

    jwideman Veteran Veteran

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    This can never be emphasized enough. 
     
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  15. sabao

    sabao Veteran Veteran

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    Grand Chase as a game has ceased, but technically the franchise does still live on in Elsword. Whether or not an IP is active however may be irrelevant. Yes, better safe than sorry.
     
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  16. Oddball

    Oddball Veteran Veteran

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    This discussion has got me curious about something. What about satires?
     
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  17. ssunlimited

    ssunlimited Veteran Veteran

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    GUYS, what if you get permission from the copyright holders to create a fan game, is it still illegal? I'm thinking not...
     
    Last edited by a moderator: Oct 17, 2015
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  18. Nagasaki

    Nagasaki Phoenix Veteran

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    I agree. As long as it existed, it's from someone. Getting something from someone without permission is stealing, so yeah.
     
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  19. ConkerMich

    ConkerMich Veteran Veteran

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    If you have permission then you can make a game using whatever they allowed.

    Good luck though, most people will not share their characters. 
     
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  20. FlameEX

    FlameEX The Volcanic Member Veteran

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    So I can make my harvest moon inspired game?
     
    Last edited by a moderator: Oct 17, 2015
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