Legal question about game making.

[sirbgb]

I am rather new to AGS, so I was wondering if someone could help me answer a few legal questions I have, and explain their answer a bit:

1. Let's say I like a published game/movie/book/etc. and want to make a remake, a game involving characters and/or locations from the game, a tribute game, or a parody. (Whew, I think I covered everythingÃ, ).

So can I....

1. Do any of #1?
2. Use characters?
3. Use names of areas or items?
4. Use sounds or music (even if it is fan made or remixes of the original)?
5. Use graphics from the game?
6. Make my own graphics that is similar?

I'll stop there, as I would go on forever. Any help on this topic would be great, as I don't want to step on any designer's toes... or their lawyer's.Ã,  :o

[MrColossal]

Really you can do whatever you want, no one will really stop you.

If you make a big fuss about the game and post it everywhere and email the creator you'll draw attention to yourself, just stay low key and make what you want to make.

If you're really really worried about lawyers, search the ags gen forum and there's a thread [or two] that talks about it somewhere in there...

But really, don't worry about it and just have fun doing whatever you want to do.

Unless it's a sequel to Grim Fandango.

[IM NOT TEH SPAM]

It depends weather or not you decide to sell it... and weather or not all those random companies give a damn about what you're doing.

[Wellington]

The theoretical answer:

The owner of the game's copyright owns not only the right to distribute the original game, but also the right to all "derivative works." Therefore, if you write a fangame and distribute it, even if it is not for profit, you are infringing. However, the defense of "fair use" may help you out, in that some of the factors considered are whether or not profit was made, whether or not the derivative work was a substantial change to the original, and whether or not the new game acted as a substitute for the old one.

The fair use defense would probably not QUITE turn the lawsuit in your favor if it happened, but would likely prevent the damages from being too bad. It would be a PR nightmare for a company to ask for heavy punitive damages from a fangame maker, and the fact that the fangame did little harm would probable make compensatory damages low.

But you'd still be breaking the rules, and could be sued, and would likely lose if you were sued.

The practical answer:

Most companies allow fangames, though they have to be careful not to explicitly license them because then they might lose the ability to enforce their copyright. However, it is their right to stop you. Usually this means a cease-and-desist letter, which should be complied with promptly and without complaint. It's their game.

If you don't get a cease-and-desist, you can probably go ahead. But bear in mind that your game should not be a substitute for the original, especially if the original is still on the market in any form, including collections.

The key test for a substitute: Is anybody ever likely to say, "Well, I could buy the original, or I could download the fangame for free, so I might as well not pay?"

The KQ1 and KQ2 remakes were definitely substitutes, but got away with it because Vivendi apparently doesn't want to annoy the remaining Sierra fans. Or maybe they just don't really care. Or maybe their lawyers are all looking forward to QFG2+.

But I would suggest avoiding making your game a substitute. So, if you use graphics, music, characters, names, and everything else, your game should probably be original in other respects.

SUMMARY:

Do it. But all your work will be for naught if the company decides to stop you.

[jetxl]

Side question.
Is fan fiction illegal too? Or only if it's really, really bad.

[scotch]

http://en.wikipedia.org/wiki/Fan_fiction#Legal_aspects As with a lot of things like this, it is a grey area.

[magintz]

I'm sure if everything is your own work as with Fountain of Youth, and you just use the character basis etc... they can't really do much if you are doing it as a fan project for no money.

Obviously all they can do is ask you to stop. but if you think about it a game is no different than a website in this respect, just a different form of media. So if they would shut you down, legally they would have to shut down every fan site in the world.

Best thing to do, is if you are still paranoid take one of these options:

1) Ask the creator of the said licence if you can use it for a fan project
2) Make it annonymously
3) Make your own project
4) Make a parody on the subject that is different enough not to cause a stir
5) Just simply don't make a game (but please don't choose this option)

[Nikolas]

As far as I'm aware about copyright laws copyright does not cover an idea, but rather the realisation of the idea. Example:

We have Micky Mouse. You can't copy his icon, but noone can stop you from making a waking mouse living in a city with other humanoid animals.

So I think you can probably find a way around things. And of course since it is a Fangame I don't think that anyone will really mind...

[LucasFan]

The KQ1 and KQ2 remakes were definitely substitutes, but got away with it because Vivendi apparently doesn't want to annoy the remaining Sierra fans. Or maybe they just don't really care. Or maybe their lawyers are all looking forward to QFG2+.

http://www.agdinteractive.com/legal.php

AGD INTERACTIVE'S COMPLETE LEGAL STATEMENT

AGD Interactive claims no ownership interest in any of the characters, places, names, themes, situations or events in any of our currently released or upcoming titles - all such properties are owned by Sierra Entertainment, Inc. Sierra, King's Quest, and Quest for Glory are trademarks or registered trademarks of Sierra Entertainment, Inc. King's Quest, Quest for Glory and all related material are copyrighted by Sierra Entertainment, Inc. and are used with permission.

[Scummbuddy]

Universal Press, the comic strip distributors, shut down every calvin and hobbes fan-site, just because they could. It was so lame. I hate that syndicate. They weren't doing anything wrong. They were just a hub for fan art and such. One was in the process of putting up strips, which, I would be okay if the syndicate said "Do Not" and then they were taken down. I would understand that, even though all the strips were also available through searching on their C and H site.
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nikolasideris - you could still end up with getting a letter from Disney. It would be up to a court to decide how alike they are, but you would still have to be careful and just enough apart, or parody the character, to get away with it.

magintz - they could still shut down the FOY project, or LucasFans' new one, because it is using their characters and some story elements that are theirs. Thank God LucasArts isn't on a rampage anymore. Just because FOY's Indy is an original sprite, it still is Indy and its now LucasArts... in a way.
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And anyone should be able to sue or at least punish people who have really bad fan fiction. Stick up for the creators... 

[Wellington]

Lucasfan: Aha.

Okay, so they asked permission. Wise when you're doing a remake that basically replaces the original game...

[rharpe]

1. Do any of #1?

NO. You must ask permission.

2. Use characters?

NO. Copyrighted characters are retained by their rightful creators/owners.

3. Use names of areas or items?

NO. Copyrighted names are retained by their rightful creators/owners.

4. Use sounds or music (even if it is fan made or remixes of the original)?

NO. Only if the content is unrecognized.

5. Use graphics from the game?

NO. Copyrighted graphics are retained by their rightful creators/owners.

6. Make my own graphics that is similar?

NO. Only if the content is unrecognized.

Will you be selling this game? If so, all the above would be NO! If this is a fan game, you may need to seek permission...(which is more work than it's worth.) I think parodies are ok, but I've seen companies demand that games be taken down or they will sue. Getting permission would be the only answer. All companies are different.

Has anyone asked Disney, Vivendi Universal Games (used to be Sierra On-line,) EA, Blizzard, Capcom, SNK, etc.? If so, post their permissions here.

[Paper Carnival]

I think a parody of any story wouldn't be wrong at all if you use original graphics/sounds etc.

[Pumaman]

Has anyone asked Disney, Vivendi Universal Games (used to be Sierra On-line,) EA, Blizzard, Capcom, SNK, etc.? If so, post their permissions here.

Generally speaking, I don't think you'll find any of these companies will give you permission if you just say to them "I want to make a really cool sequel to XXX"; they won't know what sort of quality the resulting game is likely to be, and they won't want it to give their franchise a bad name.
As I recall, AGDI only got permission by actually making KQVGA, and then giving Vivendi a copy of the finished game and saying "would you give us permission to release this". That's quite a big gamble though, because if they say no then you've wasted a lot of time and effort.