Legal Question regarding Freeware & Fan Games

[watermark]

After reading all these scary rules concerning copyright posted in forums, I have a question regarding the legality of making fan games using ripped graphics, music, and other resources. Sometimes devs like me just want to make a fan game for the fun of it and not for commercial profit using existing graphics. After all, that was always part of the charm of RPG Maker: it's like a fanfic program for games. Maybe I would like to make a Chrono Trigger sequel or an alternate Super Mario RPG or Final Fantasy or what have you. But since I can't draw, I will choose to use existing graphics on the internet.

Say I download the ripped graphics from a Pokemon game and then use them to make a completely different game called Pokemon: Rainbow Bubblegum Green. It will be a fan game with a mishmash of monsters from other versions with new maps and a new story. It will be forever free and will never go commercial.

Is this legal?

Do I have to put in there "These Pokemon graphics owned by Nintendo and ripped by Mr. XXX" somewhere in the credits?

Will I be allowed to post this kind of game in these forums?

Thanks for the advice!

 

[Sailerius]

No, it's not legal. Even if it is noncommercial. Even if you say you don't have the rights to it. It is 100%, unambiguously, completely and utterly illegal.

There's no way around it. If you are using the assets or intellectual property of someone who hasn't given you the rights to use them, you are violating their IP rights.

 

[Andar]

As said, all fangames are automatically illegal for trademark violation if they only use the name on completely new resources.


If they use ripped resources, then they are automatically illegal for both trademark and copyright violations.


The fact that in the past a lot of companies either didn't know (or pretended not to know) about fangames explains that you hadn't had to face a judge, fines and/or imprisonment in the past, but that does not prevent you from being fined (or the fangame deleted from the internet) if the company suddenly discovers your fangame.


The ONLY difference between commercial and non-commercial is that with commercial, you're guaranteed to get a fine and will have to face higher charges while non-commercial you have a chance to get away with "minor" fines (which usually still add up to several thousand dollars because they include the costs for your lawyer and so on).

 

[watermark]

Thanks for the advice! I also read up on this topic, and it seems there are cases where fan games can be legal if it is satirical or "transformative" and falls under "fair use". A lot of clearly intentionally ambiguous legal terms. There was this guy that actually wrote Nintendo about doing a Pokemon fan game and Nintendo replied with a totally open answer: "Well we're not saying you can't do this, and we can't stop you from doing this, but if you insist on doing it, we may or may not sue you."

But if you get right down to it, it seems like this mostly depends on the copyright owner. There are authors who will outright sue you to those who might even encourage you. I read that Capcom once purchased a megaman fangame even. But you guys are right, the odds against fan games are too great. It's just not worth it.

Oh well. It's good to get that cleared up.

 

[bgillisp]

I'd say the best thing is to ask for permission. Some of the older PC games have been remade or had fan games made with the copyright holders permission (see Quest for Glory 2...they got the permission of the owners to remake that game I heard). Otherwise, probably the only 'legal' way to make a fan game is to make it just for your own playing and practice, and never release it to anyone else.

 

[Andar]

and falls under "fair use".

Don't forget: "fair use" is a defense AFTER you have been sued, dependend on what the judge considers fair in that special case.
And to even get to use that defense in court, you first need to pay your own lawyer to get heard - and only if you win will you be refunded those costs.


And it isn't only up to the owner alone - sometimes the laws require the owner to sue the fan, even if he don't want that, just to protect the copyright and prevent it from being voided forever.


In the following link, check the answer to the fourth question about fanfiction from Jan2011, that will show how many problems there are with fangames and fanfiction:


http://www.davidweber.net/faqs/index/series:0

 

[bgillisp]

Adding on to my post and what Ander said, the example I gave was from a game series that was done, and the owner and copyright holder had no intent to make more games based on it, so they didn't care if the copyright was voided now, and gave their permission to make the remade game for that reason. But those cases are rare, so don't count on running into that.

 

[Sailerius]

Thanks for the advice! I also read up on this topic, and it seems there are cases where fan games can be legal if it is satirical or "transformative" and falls under "fair use". A lot of clearly intentionally ambiguous legal terms. There was this guy that actually wrote Nintendo about doing a Pokemon fan game and Nintendo replied with a totally open answer: "Well we're not saying you can't do this, and we can't stop you from doing this, but if you insist on doing it, we may or may not sue you."

But if you get right down to it, it seems like this mostly depends on the copyright owner. There are authors who will outright sue you to those who might even encourage you. I read that Capcom once purchased a megaman fangame even. But you guys are right, the odds against fan games are too great. It's just not worth it.

Oh well. It's good to get that cleared up.

As was previously stated, "fair use" is a defense you use to try to defend yourself after you have been sued. There are (intentionally) no clear-cut guidelines about what constitutes fair use, but the key philosophical point behind it is that when you claim fair use, it's because you were trying to accomplish something legitimate (such as education, news coverage, etc) and that in doing that, it required you to cite a piece of the original work. The important part here is "a piece," which means that you're only allowed to use as much of the original work as was necessary for what you were doing. In other words, you can't copy and paste the entire contents of a book into your review of the book, but you can cite quotations from it to back up your points.

A fangame is not a legitimate exercise of fair use. The only possible avenue you could imaginably squeeze yourself through to try to justify it would be parody, except parody has been inconsistently upheld in court and even still, you're required to use as little of the original material as possible in order to convey your point.

Otherwise, probably the only 'legal' way to make a fan game is to make it just for your own playing and practice, and never release it to anyone else.

No, that's still illegal.

The bottom line is that you can't do it. It is illegal (at least in the US). There's an infinitesimal chance you could succeed in getting permission to do it but you're several times more likely to just get sued instead. Many people much more talented than you have tried and been shut down.

Just don't bother.

Use your creative energy on something original instead. Contribute something beautiful of your own conception to the world instead of using someone else's ideas as a crutch.

 

[Andar]

Otherwise, probably the only 'legal' way to make a fan game is to make it just for your own playing and practice, and never release it to anyone else.

No, that's still illegal.

That depends on the specific laws of the country, it is not automatically illegal.
For example here in Germany, all copy machines (including scanners) are required to pay a fee (or rather, their buyers have to pay that fee in addition to production cost), and that fee is distributed amoung all printing companies (and similiar institutions) as compensation to allow "private copies" as part of the fair use/copyright laws. Those private copies are legal as long as they are not distributed to more than half a dozen people (anything like public display would violate that part).


That is another reason why there is no fixed definition of "fair use" - after all there are international laws making copyright extremely similiar for most countries, but the fair use part is still defined differently depending which country you live in.


Other than that, I agree that personal ideas are usually better than fancopies - all ideas have been used before, and if you can come up with a good implementation of an old idea you shouldn't limit that by forcing it into another story's structure.

 

[bgillisp]

That depends on the specific laws of the country, it is not automatically illegal.
 

Exactly. For example, in the US we are allowed to reprint or recopy one chapter or less of a book without buying the book if it is for a classroom use. However, if it is more than one chapter, then it becomes illegal. So the laws differ, and are even vague at times.

However, I think Ander summed it up best here:

Other than that, I agree that personal ideas are usually better than fancopies - all ideas have been used before, and if you can come up with a good implementation of an old idea you shouldn't limit that by forcing it into another story's structure.

 

[Ksi]

Just a heads-up, Capcom doesn't mind you using Breath of Fire non-commercially, as long as you ask them about it. They're quite open to fangames and fan projects, so... there's that. Maybe asking the company in question could net you a positive result.

 

[whitesphere]

Basically, if the content creator and holder of the copyright gives permission, it's legal.

Yes, technically, parody is protected speech BUT you can still get into a heap of trouble.  Also, if I make a parody of a game using the game's own ripped resources, that's probably illegal in the US under the DMCA.  Now, if I loved a specific fictional universe, I might make a game which is inspired by that.  If I'm not using any of the source material's resources or names and make my game different "enough" then I may not be in trouble.

See the TVTropes entry called "Lawyer Friendly Cameo" for examples.

Keep in mind Weird Al makes his living on songs which are parodies of well known pop tunes, and even HE asks permission before releasing the parody.    He says it is out of politeness, and I'm sure that's true, but it also minimizes any backlash or chance of legal crap.  Sure, a judge might rule his parody Fair Use, but his parodies often use the exact melodies and phrasing of the source material, so a cranky pop star might have Weird Al dragged before a judge which would make his life as a performer difficult.  Sure it'd be legal but would cause him a lot of hassles.

I'd say play it cautious when dealing with other people's copyrights.  Making a game strictly for your own use is no defense.  It makes your being found out less likely, it doesn't make the game any more legal.

 

[amerk]

Just a heads-up, Capcom doesn't mind you using Breath of Fire non-commercially, as long as you ask them about it. They're quite open to fangames and fan projects, so... there's that. Maybe asking the company in question could net you a positive result.

And the same appears to be with the Dragon Quest series, or at least it did when it was just Enix. There was a discussion sometime back about how the fan games encouraged more popularity amongst the actual titles, and Enix didn't mind them; they probably viewed it as free advertisement for the commercial games as a way to increase sales, while keeping the fans happy at the same time. I'm not sure how if the same holds true after the merge with Square, though.

Considering that there was a lack of love for the Western audience until the past 10 years or so for the DQ games, I often speculate that fan games did have a hand in bringing attention and support for the real games.

 

[bgillisp]

You know, I heard once there was a Japanese game that encouraged the fan games, and even let you sell them, as it brought them in more revenue in the end to the original product. However, they refused to bring them to the US as that is not allowed in the US (something about US copyright and trademark laws vs Japanese laws). Can anyone confirm or deny this?

 

[Sharm]

I don't know about that particular case, but I do know that some IP laws are less strict in Japan than they are in the US. For example, in Street Fighter the boxer's name was Mike Bison but because it was just too close to Mike Tyson it had to be changed when ported to the US.

 

[Sailerius]

On top of that, in the US, it's actually possible to lose your copyright if you allow other people to use it freely, which is part of why most companies are so averse to fanwork.

 

[bgillisp]

@Salierius: Yep, that's exactly why I heard that company wouldn't bring the game over from Japan.

 

[Kaelan]

Just a heads-up, Capcom doesn't mind you using Breath of Fire non-commercially, as long as you ask them about it. They're quite open to fangames and fan projects, so... there's that. Maybe asking the company in question could net you a positive result.

Capcom's a bit better about this than most other companies. Megaman X Street Fighter began as a fan game which ended up actually getting official support from Capcom. He got the support after showing the game to some Capcom employees during a convention.

 

[whitesphere]

It sounds like fangames are a murky legal mess.  Sometimes they are even elevated to "official" status like Mega Man vs Street Fighter, sometimes they are encouraged, sometimes the IP holder merely turns a blind eye to it UNLESS the game is sold for profit, sometimes the IP holder cracks down on any fangame the instant it's found.

I remember one fangame I enjoyed ("Super Mario Bros. Crossover") --- it was a platform game which used re-creations of a variety of Nintendo characters, each with their own unique abilities.   But even the authors there said the game was unofficial, and they are now trying to create a game, with that engine, which is actually legal for them to sell.  So they were going to swap out all of the Nintendo characters and put in custom sprites/names/behaviors.   Basically, they were making their own game universe to make it legal.