"The Hobbit" Fangame - Legal?

Nightblade50

Developer of "Delta Origins"
Veteran
Joined
Nov 10, 2016
Messages
2,141
Reaction score
4,258
First Language
English, French
Primarily Uses
RMVXA
I have no idea where this thread would go so I'll stick it here.

I am thinking about making a game based on The Hobbit by J. R. R. Tolkien in RPG Maker.
However, I am concerned as to legality thereof. Can someone with some legal knowledge tell me if it is legal to make a non-commercial game based off of it?
I am assuming that a commercial game would not be legal.

Thanks.
 

Karbonic

Off Brand OFF
Veteran
Joined
Dec 24, 2015
Messages
57
Reaction score
20
First Language
English
Primarily Uses
RMMV
The Hobbit as an IP is currently not in the public domain. The original book was written in 1937, which means you'd have to wait until the original copyright expires in 2032 to make any sort of commercial thing from it without receiving a license.

However, since you are saying that this will be a non-commercial venture, I'd say go for it. Just keep in mind that there are people who still hold the rights to the Hobbit as an IP, and that they do have the right to C&D your project if they wanted to. At that point you'd have to drop the project, or change it enough that it didn't resemble the Hobbit to a certain extent.

That being said, I feel you are a bit safer in the fact that you're specifically planning an adaptation of the original book, and not, say, the movies from a few years ago. That would be a much more complex situation which would almost definitely get a C&D.

At this point, there have been so many adaptations of J.R.R. Tolkien's work that I feel like yours would probably fly under the legal radar fairly safely.
 

bgillisp

Global Moderators
Global Mod
Joined
Jul 2, 2014
Messages
12,955
Reaction score
13,314
First Language
English
Primarily Uses
RMVXA
Unless you get permission from the copywrite holder, it is NOT legal, even if non-commercial. All making it non-commercial does is reduce the likelihood they will sue you for $$$, and even then it is not guaranteed.
 

Andar

Veteran
Veteran
Joined
Mar 5, 2013
Messages
30,014
Reaction score
7,025
First Language
German
Primarily Uses
RMMV
Just keep in mind that there are people who still hold the rights to the Hobbit as an IP, and that they do have the right to C&D your project if they wanted to.
@Nightblade50 That is the key here - and contrary to that poster it has nothing to do with "want".
Allowing anyone to use your IP without a licence has a high chance of voiding your copyright if a third party uses that example of allowed use as an argument to allow their use as well - that has happened before.

As a result the IP holder is basically required to go after you as soon as he gets informed of an infringement. And for something big like the hobbit, that is guaranteed to happen sooner or later, so you will get into trouble for making a fangame.

Just for your info: The D&D games had to rename hobbits to halflings because the use of the name hobbit would have caused them legal problems. And that would be just using the name in mostly unrelated stories instead of trying to make a fangame in the same world.
 

Restart

Veteran
Veteran
Joined
Mar 15, 2019
Messages
408
Reaction score
263
First Language
English
Primarily Uses
RMMV
@Nightblade50 That is the key here - and contrary to that poster it has nothing to do with "want".
Allowing anyone to use your IP without a licence has a high chance of voiding your copyright if a third party uses that example of allowed use as an argument to allow their use as well - that has happened before.
That isn't how copyright works. You're thinking of a trademark.
 

Andar

Veteran
Veteran
Joined
Mar 5, 2013
Messages
30,014
Reaction score
7,025
First Language
German
Primarily Uses
RMMV
That isn't how copyright works. You're thinking of a trademark.
No, it's about copyright - but around a few additional edges and not voiding in so far as it would not exist, but voiding its exclusivity and the IP-Holders control about it.

I don't have links but I've heard from a different community (professional writers, not game developers) that this happened a few times before:
An Author had a "setting/universe" developed with his books. Then several fans wrote fanfiction in it, and the author allowed that without going against them because they didn't make any money from their fanfiction. And then a third party came and did sell other work in his setting.
The author tried to stop them, only for that third party to point out to those other fanfictions saying "the author knowingly allowed those others to use his work without them having a licence or even asking for clearance, so we should also be allowed to use his work without asking and without him suing us".
And the judge agreed with them, basically voiding the copyright's control by allowing anyone to use the setting without compensation, just because the author had allowed that for others before.

As a result, a lot of professional writers adopted a silent policy of "I don't want to know about fanfiction of my work", only going against it if it is brought to their specific attention. Because only then they could claim to a judge "I send a C&D to every case I know of" without alienating those fans that really liked their work enough to write those non-com fanfictions.
 

bgillisp

Global Moderators
Global Mod
Joined
Jul 2, 2014
Messages
12,955
Reaction score
13,314
First Language
English
Primarily Uses
RMVXA
The other thing to note is copywrite law is different in different countries. What is true for it in one country may not be true in another. But I'm not aware of any country where a fan game is allowed without permission from the holder of the IP, even US fair use law doesn't cover it despite what many try to claim (and oddly enough, none of those who try to claim it is covered by fair use have won a court case with that argument that I know of).
 

Restart

Veteran
Veteran
Joined
Mar 15, 2019
Messages
408
Reaction score
263
First Language
English
Primarily Uses
RMMV
No, it's about copyright - but around a few additional edges and not voiding in so far as it would not exist, but voiding its exclusivity and the IP-Holders control about it.

I don't have links but I've heard from a different community (professional writers, not game developers) that this happened a few times before:
An Author had a "setting/universe" developed with his books. Then several fans wrote fanfiction in it, and the author allowed that without going against them because they didn't make any money from their fanfiction. And then a third party came and did sell other work in his setting.
The author tried to stop them, only for that third party to point out to those other fanfictions saying "the author knowingly allowed those others to use his work without them having a licence or even asking for clearance, so we should also be allowed to use his work without asking and without him suing us".
And the judge agreed with them, basically voiding the copyright's control by allowing anyone to use the setting without compensation, just because the author had allowed that for others before.

As a result, a lot of professional writers adopted a silent policy of "I don't want to know about fanfiction of my work", only going against it if it is brought to their specific attention. Because only then they could claim to a judge "I send a C&D to every case I know of" without alienating those fans that really liked their work enough to write those non-com fanfictions.
You're thinking of Marion Zimmer Bradley, where she read a fanfic, wanted to make it canon, offered the fanfic writer a coauthor credit (EDIT: whoops, a 'dedication' but not a coauthor credit) in exchange for using the fanfic, then threated to sued the fanfic writer when they said 'no'. Bradley then made up a story about how the fanfic was 'too similar' to her book and the fanfic writer sued or threatened to sue her and now she couldn't publish it.

Bradley was an awful person for reasons other than that, but in a gross way so I'll let you decide if you want to read the details on her wikipedia page.
 
Last edited:

TWings

The Dragon Whisperer
Veteran
Joined
Jul 26, 2017
Messages
385
Reaction score
646
First Language
French
Primarily Uses
RMMV
I'm not aware of any country where a fan game is allowed without permission from the holder of the IP
I believe China is pretty good at ignoring copyrights. They'd have to close a lot of buisnesses if they didn't.
 

Hollow 1977

Rpg MV Game Creator
Veteran
Joined
Jan 5, 2013
Messages
1,737
Reaction score
1,274
First Language
English
Primarily Uses
N/A
If that's the case what about doujinshi? How do they fall in line with copyrights? And I know I have seen a ton of fan games involving Nintendo characters. Not saying its right though. I used to want to make a fan game myself but I am unsure of how the fair use works.
 

Andar

Veteran
Veteran
Joined
Mar 5, 2013
Messages
30,014
Reaction score
7,025
First Language
German
Primarily Uses
RMMV
If that's the case what about doujinshi? How do they fall in line with copyrights? And I know I have seen a ton of fan games involving Nintendo characters.
all of that breaks copyright. But copyright is a civil law, not criminal law, and because of that only the copyright holder himself/herself can initiate the lawsuit, and he/she needs to know of an infringement to start that.
As soon as the IP holder knows of something, it usually gets taken down. Best example is the Pokemon essentials for RMXP that have been around for ten to fifteen years before the IP-Holder learned of them and took them down everywhere.

I am unsure of how the fair use works.
The key to allow fair use is that it requires the work you do to have one of a specific and limited number of uses. If your work does not have one of these uses, then you cannot claim "fair use" - and "having fun" is not an allowed purpose.
For a game, there are only two possible purposes that could be claimed: Education or Parody. Everything else of "fair use" cannot fit.
And since it is difficult to explain why someone needs to (for example) learn the history of a fictive world of Pokemon, the only real option for a fangame to claim fair use is a parody.

So if you want to make a parody of a fandom, a game that makes the player laugh at it, then you can claim fair use. But very few fangames do that, because most of those developers don't want their players to laugh at their beloved fandom.

For details, you can better read up fair use in wikipedia

But you should keep another thing in mind:
The fair use law is a defense, nothing else. Which means to claim it you already have to be sued against it, and then a judge has to decide if you can claim fair use. And if that fails, you've got to pay all those lawyers, which is why you should not plan on using it without understanding it.
 

Karbonic

Off Brand OFF
Veteran
Joined
Dec 24, 2015
Messages
57
Reaction score
20
First Language
English
Primarily Uses
RMMV
Allowing anyone to use your IP without a licence has a high chance of voiding your copyright if a third party uses that example of allowed use as an argument to allow their use as well - that has happened before.
Good to know, and certainly troubling.
Specifically in the case of the Hobbit, I find it odd that a work can be put into public domain, but then be pulled out of it if a company wishes to take control of the work as a brand. Someone more law literate probably could explain why this would be, because from the outside to me it just seems like a blatantly pro-corporation ability to exist.
 

bgillisp

Global Moderators
Global Mod
Joined
Jul 2, 2014
Messages
12,955
Reaction score
13,314
First Language
English
Primarily Uses
RMVXA
If that's the case what about doujinshi? How do they fall in line with copyrights? And I know I have seen a ton of fan games involving Nintendo characters. Not saying its right though. I used to want to make a fan game myself but I am unsure of how the fair use works.
In the US fair, use covers use for reporting (like doing a review of a game on youtube and using scenes from the game), education (and even then in limited capacity), or parody. That's it. None of those cover making a fan game except MAYBE parody, and that would have to be decided by a judge after you've already been sued by the copyright holder.

@Karbonic : I remember when I was about to release my game I found a way to tell when what active trademarks there are for names, and what copywrites there were as well. I didn't save the links, but google can probably help you find it.
 
Last edited:

big_noob

Veteran
Veteran
Joined
Nov 26, 2017
Messages
31
Reaction score
16
First Language
English
Primarily Uses
RMMV
As another user said, it differs a lot from country to country, but I have a bit of a background in this matter so I thought I might step in a bit.

I'm a lawyer in another country and made my graduation thesis on copyright, but I'm not enterely familiar with copyright law in the USA. However, from what I've read, a lot of DMCAs and C&Ds are complied to just to AVOID a lawsuit, since it's ruinously expensive to get sued over there, even if you're not in the wrong and end up winning.

I recomend you google the copyright law of your country and give it a read, they're usually very self explanatory and not very long.

I've studied a few cases where the copyright owner sued unauthorized works derived of their copyright and ended up losing, because they couldn't demonstrate in court how the owner of the copyright was being harmed by the unauthorized work existing and being distributed (it was non-commercial). This was in a Civil Law country, so litigations are judged by the law, rather than precedents.

I'm saying all this because unauthorized work (such was fan games and fan fiction) are in a kind of gray area, but, in theory, ARE permitted as long as you follow the law (generally speaking they can't harm the author's ability to profit off their work or offend their honor). The burden of proof would be on the author to prove a specific work ir harming their rights.

I'd hate to see your passion for a project go to waste, so my advice would be to go for it and make your game, since frankly it's a sly chance something like this might happen.

Anyways, bye bye and good luck
 

Hollow 1977

Rpg MV Game Creator
Veteran
Joined
Jan 5, 2013
Messages
1,737
Reaction score
1,274
First Language
English
Primarily Uses
N/A
Thanks for describing it in more detail. I did a bleach fan-fiction ending the series differently caused I felt the author did not have enough time to finish it properly. I can see where that would not harm his work or his name. I can also see where the characters of a series are portrayed in a way different than the author intended that might cause the author to send out a cease and desist letter cause then it tarnishes the very characters he painstakingly created. But also to cover everything on the web would be difficult to do so I imagine he would only go after the ones that speak the loudest.

@Nightblade50 I agree with big_noob. Create your game. If you get a cease and desist letter just remove it or change it so that it does not resemble the author's true work. You may change the names of the characters so they don't match the ones in the book or movies.
 

Romanticist

Veteran
Veteran
Joined
Oct 8, 2015
Messages
215
Reaction score
83
First Language
English
Primarily Uses
RMMV
If you wanna make a fan game, don't ask on an official website forum if you can make the game, because the answer will always be that it is 'illegal' -- in quotes because 99.5% of the time, you won't get prosecuted for it... and no, doing something and not getting caught doesn't mean it's right, but, the question you really want to ask yourself is: is making a fan game actually immoral? Personally, I do not believe it is, under most circumstances. No more immoral than any other kind of fan work, like fan art. (I mean, I guess you could argue that games are more 'grand' in scale than a picture but even so, the concept of it being a copyrighted material is the same.)

Anyhow, if you do make a fan game based off of an IP owned by a company known for shutting down fan projects, then I'd keep quiet about it and work in the shadows until the game is done. Then when you release it, it'll be on the internet and won't have much of a chance to be taken down completely (unless your game is very obscure and no one downloads it -- but then it would be unlikely to get shut down to begin with!).

Just wanted to write this because this isn't the first time this kind of question has been asked on the forum and the same legal answers are always given. But I want to give another perspective! Perhaps a shady perspective if you hold the law as sacred, but a perspective to consider all the same.
 

Users Who Are Viewing This Thread (Users: 0, Guests: 1)

Latest Threads

Latest Profile Posts

There's another Humble Bundle available now for RPG developer assets, this time focused somewhat more towards pixel art style games.
Ive got a long lost half uncle. Thats real cool.
I forget what is bumping rule in this forum. Is anyone know? Thank you.
BCj
Ew, why does my blogpost on the rpgmaker.net site look like a garbled mess? Are html codes disabled or something?
I feel that I should cut down on my order queue so I can get some more time for my projects, its been quite a longggg while since I worked on them LOL

Forum statistics

Threads
97,900
Messages
947,725
Members
129,136
Latest member
ivanpuvko
Top