Trademarks and Characters - Legal Question

[8bitN8]

A few years ago I started making a game that uses characters from a popular movie series (Indiana Jones). The main character of my game is actually a side character from the series. My original intention wasn't to make money off of it or even to share it, but now I'm considering finishing the game up and using it as a resume piece.
Keep in mind, I'm a beginner at best.

So my vague question is this - how does trademark law apply to fictional characters? Any help would be greatly appreciated.

[Snarky]

Not a lawyer or expert, but my layman's understanding:

Trademarks are "marks" that identify a product for sale. They can be pretty much anything: a name, a logo, a character, a jingle. They need to be registered, and they are only protected within the scope of a certain business. So for example "Apple" is a trademark name in the computer market, but you would still be able to use it for something completely different, e.g. as a clothing brand, since there's no risk of confusion. Trademarks do not expire as long as they are used. Companies MUST defend their trademarks, or risk losing them, so you cannot rely on them turning a blind eye even to non-commercial fan creations.

Some fictional characters are trademarked because they serve as mascots for products (e.g. Tony the Tiger, Mickey Mouse), or just because they are important to the company and it offers additional legal protection, but most are not. Indiana Jones may very well be trademarked, but I wouldn't expect a side-character from the series to be. You might want to check that.

What's probably much more relevant is copyright, which is an entirely different thing. Every creative expression these days is automatically copyrighted, without any need for registration. Copyright is not limited to a particular context, medium or business: if you take a character from a book under copyright and use it without permission in a game, or to sell cookies, that is still copyright infringement. However, copyright is subject to fair use limitations, which means that others are allowed to use it in certain ways (most notably parody, but other things as well) without that infringing on the copyright. Copyright eventually expires (at least in theory), but companies do not risk losing copyright if they don't aggressively protect it, so they can choose to look the other way (and often do so for non-commercial fan-created work).

Basically, your use of a copyrighted character (any character from Indiana Jones who is not an historical character, like Hitler, or from some earlier piece of fiction that is out of copyright) is most likely a copyright infringement, unless what you create falls under fair use â€" and I wouldn't think what you describe does. However, LucasFilm has mostly been fairly tolerant of fan works of this kind as long as it is non-commercial and doesn't compete with official products. A resumé piece would probably be fine. If you acknowledge LucasFilm's ownership of the character in the game, use a title that is clearly separate from any official LucasFilm product (film, game or other), and make it clear that this is a fan-created, non-official work, you should probably be fine.

As a practical point, the legal situation doesn't really matter: if Disney don't like what you're doing, they'll send you a Cease and Desist notice, and since they have unlimited lawyers it will be impossibly expensive for you to fight them, even if what you're doing is legal. Vice versa, it doesn't matter if you're infringing on the copyright if they don't care about it. So the question is really, is this the kind of thing Disney/LucasFilm try to stop?

[8bitN8]

Very helpful, thanks. That is roughly what I suspected (and feared). So if Lucasfilm decides they care, they can find a legal reason to shut me down.
I wish I had thought ahead with all of this and not wasted time with existing characters.

Any insight into what constitutes parody? This game takes a very lighthearted approach to the whole Indiana Jones adventure dynamic.

Thanks again for your advice there, very helpful.

[Danvzare]

Any insight into what constitutes parody? This game takes a very lighthearted approach to the whole Indiana Jones adventure dynamic.

Why go for a parody?
Just change the names of all of the characters and any locations that were used in Indiana Jones.
Change the way characters and locations look, just enough so they seem different (they can still look similar).
And then slap on a sticker saying "Inspired by Indiana Jones".

I can name a few games which actually did this. War for the Overworld is an obvious one that comes to mind. That literally started as a Dungeon Keeper 3 fan game.

[m0ds]

Alternatively, before taking advice from a single post, take note of the myriad of IJ fan games that have been alive for years (decades in some cases) and have not faced a "shut down", which let's be honest, really was a sort of one off phase in the life of indie adventure games back in 2001, mostly orchestrated by LucasArts who were at the time still using point and click tech for Monkey Island sequels but are nowadays, well not a lot anymore, merely a distribution arm of Disney or sth. Disney has a seemingly friendlier approach to fan works across all its IP's, films and games. They also have a fascination with aliens and ufos...

The thing is if any of the other IJ fan games were an issue they probably would have been shut down long ago, it's naive to think they've existed under the radar, they don't - much like robots.txt or whatnot there are firms out there working on LucasFilm/Disney's behalf keeping track of their trademarks, copyrights etc..search "DMCA" for example. But as Snarky said

If you acknowledge LucasFilm's ownership of the character in the game, use a title that is clearly separate from any official LucasFilm product (film, game or other), and make it clear that this is a fan-created, non-official work, you should probably be fine.

...is an honest and what seems generally accepted approach to this sort of thing. But don't be put off by a couple of forum posts, like I said, check what others are doing, as mentioned there are a good 3 or 4 Indy fan games and the cease and desist of point n click adventures can really be bunched up into a small period in 2001 period. If you attempted a 3D action Indy adventure then there could be problems because that might be interfering with future plans (similar technology etc) but point & clicks really aren't what companies like Disney or the IJ franchise produce anymore, so they do not typically view them as a "threat" to the IP. Keep it all freeware and it's very unlikely they'll come calling. If anything, it promotes their franchise for free and they gain from it elsewhere...

Bottom line, if you're making a game with a secondary character for a free/resume output, there's really nothing to worry about. Try and sell it, or do things that could tarnish the main IP (ie have Indy as a swearing, semi-naked douchebag) and you're going to give the rights holders reasons to shut you down.

There's also plenty of info on this, the aforementioned fair-use stuff and parody clause on Wikipedia. Worth a read. Probably some public data or articles on which projects have been shut down by lucasfilm, arts and disney over the years out there too. As others here mentioned, there are some other alternate ideas to keep the project in tact but lose any overbearing resemblence to the trademark(s). Whilst some may not want to be seen or heard actively encouraging doing such things, for me I simply can't ignore when I'm a fan of something I make some fan stuff, lol, so can't complain nor respond in a discouraging manner on this subject Whatever you choose to do, good luck!

[Dave Gilbert]

While the subject of copy-write is murky when it comes to freeware projects (it's really up to the IP holder to decide whether or not to shut you down. LucasArts has been pretty cool about it, generally) I would be wary of using your fangame as a "resume piece." Speaking only for myself, if someone sent me an Indiana Jones fangame to demonstrate what they could do, I would probably not even bother to check it out. When I hire someone, I want to know what they are capable of doing on their own. A fangame just says to me "this person can't come up with an original idea." Again, I am speaking ONLY for myself. Your mileage may vary, of course. But that said, if your long-term plan is to use your fangame as a springboard to something more substantial, you are better off making an original product.

[8bitN8]

Thanks again for all of the advice - all is very helpful. Going off topic just a touch... As for the resume conversation - I want to show that I have a little creative/writing/animating skill and the followthrough/interest to carry a project to completion even on my own. I've been a fan of this genre of games since KQ6 and Indiana Jones and the Fate of Atlantis, so the IJ franchise was a fun first real try at this. But tell me this (if any of you are still with me here), would it be more impressive to you as a potential employer (say, indie game company with an interest in adventure games)if I presented a very short but completely original game/story than a longer more developed one? I considered going that route as well. Anyway, as I've said, your advice has been top notch and very enlightening.

[Dave Gilbert]

Speaking as an employer/producer of indie adventure games, original work is ALWAYS more impressive. Even if it's shorter. ESPECIALLY if it's shorter. If I am going through a list of potential candidates, I am not going to spend an hour playing through someone's sample piece. So shorter & snappier is better.

[Mandle]

Can we play the game?