Common Misconceptions About Trademarks And Copyrights

[SimReality]

1) If I don't sell the game, can I get in trouble for copyright/trademark infringement if I remake game XYZ?

Yes.

A common misconception in the indie and hobbyist areas of game development is this strange notion that freeware games are exempt from having to respect copyright and trademarks. This simply is not true. You can tell yourself over and over that they won't care because it's freeware, but it isn't true.

As a primary example, take a look at http://plasmapong.com/. Plasma Pong was a freeware clone of Pong using fluid dynamics in the gameplay (really pretty looking too). Atari, Inc forced the author not only to cease distribution of the game, but also to take down the site and screenshots and post up that notice.

2) Obviously I won't get in trouble. Look at website XYZ: they have tons of clones and they aren't getting sued.

Another misconception. This is the same as saying "It's not illegal for me to speed because that guy is speeding and isn't getting a ticket right now." Big companies can only catch so much. Whether it's the time/human aspect of finding all the cloners or the legal aspect of having to draft and send out the cease and desist letters, obviously not all people will get caught. So while yes it means you are a face in the crowd to a degree, it doesn't make things any less illegal. And at that point if your game becomes more popular, you'll start to stick out, gain attention, and quickly move up in importance to the original creators.

Again, see Plasma Pong. How many clones of Pong are online? Hundreds of thousands probably. But once you have a game that sticks out, you run a big risk of getting shut down.

3) It's a fan game. Company XYZ won't mind since I'm just showing how much I love game ABC.

As much as we'd all like to think that companies would be flattered by this, they just aren't. Let's take Nintendo for an example. If you navigate to Nintendo's official contact page (| Nintendo - Contact) you will notice they actually have a phone number and email address specifically to address "ROM sites, emulators, Game Copiers, Counterfeit manufacturing, or other illegal activities". Some companies have this information public; others don't. But I assure you that every company cares. By law they have to.

Trademark law, in the United States anyway, states that if you do not regularly enforce your trademark you will lose rights to it. This is the reason why Apple had to shut down some bar's "iPod Monday" because iPod is Apple's trademark []Engadget. And even though the bar was only showing support (and probably helping to sell more iPods) for Apple, it was still put to an end because of the law.


So feel free to clone and copy games. But please don't use any of the above excuses when trying to justify your illegal actions. The only legal course to clone or copy a game is to either get written and signed (and probably notarized) permission from the official trademark and/or copyright holder or be able to prove that there are no copyrights or trademarks over what you are remaking.

[SilentWalrus]

Well said.
All the people who are ignorant on this topic annoy me.

[Tiptup300]

Heh, should have probably went into ROM and emulator info, but I may post on that later.

Good reading, too bad it's true. I would love to play that one fangame that square enix shut down.

[Netrix]

So SIR TET is illegal?

[Tiptup300]

Not at all, Tetris Inc. only owns "Tetris" the name.

[Netrix]

Originally Posted by Tiptup300

Not at all, Tetris Inc. only owns "Tetris" the name.

Actually, it's The Tetris Company, LLC. They own the trademark for Tetris, however a little research on my part came across this:

It's widely believed that the company has no valid legal basis to claim rights to any tetromino game that does not infringe on the Tetris name trademark, since copyright "look-and-feel" suits have not stood up in court in the past, and as of 2006, a search at the United States Patent and Trademark Office revealed no U.S. patents related to Tetris assigned to Elorg, TTC, or Tetris Holding.

[SimReality]

Even then you should be careful with marketing. My favorite Mac clone of Tetris called Quinn (Simon Härtel — Quinn) actually got in a little heat over it. His site said something like "a popular clone of Tetris". He got to keep the game, but they made him call it a "tetromino game" instead of a "Tetris clone" and he also had to put this on his page: "Neither Quinn nor anything on this site is affiliated with or sponsored by The Tetris Company or part of their Tetris line of products."

So yeah, Sir Tet itself should be fine as long as he never put "Tetris" anywhere in the game or website. Even using the name promotionally can come back to bite you in the butt as shown in the Quinn situation.

[Netrix]

Originally Posted by SimReality

Even then you should be careful with marketing. My favorite Mac clone of Tetris called Quinn (Simon Härtel — Quinn) actually got in a little heat over it. His site said something like "a popular clone of Tetris". He got to keep the game, but they made him call it a "tetromino game" instead of a "Tetris clone" and he also had to put this on his page: "Neither Quinn nor anything on this site is affiliated with or sponsored by The Tetris Company or part of their Tetris line of products."

So yeah, Sir Tet itself should be fine as long as he never put "Tetris" anywhere in the game or website. Even using the name promotionally can come back to bite you in the butt as shown in the Quinn situation.

All right. I was just wondering if someone creates a game that looks similar to a copyrighted game, but not using any of the content from the game or the name of the game, if they could still get in trouble.

[Tiptup300]

The main thing that companies think about before Ceasing-and-desisting is whether they are getting hurt in the wallets. Let us talk about

Chrono Resurrection - Wikipedia, the free encyclopedia

Which was going to be an amazing recreation of Chrono Trigger. If this would have released it would have been great and any remake from Square Enix would have to compete with this free game. So people would think "Hey what should I get, a free clone that is awesome, or a 60$ game that's just a tiny bit better?"

That's when companies step in. Other companies will be more leniant, but you get the picture.

[SimReality]

"Looks similar" gets into a lot of gray areas. Some people like to argue that if they reproduce the sprites by hand and change a few pixels, that makes it legal. I honestly don't know how close is too close for copyright law. For something like Tetris, it's hard to enforce since everything is just made of squares. Once you get to something more complex like, say Mario, it becomes harder and harder to guess how close you can get to the original content (even if you created it all by hand) before it's considering copyright infringement. For those cases, I'd recommend asking a trained lawyer for advice.

[MarcusMaximus]

Originally Posted by SimReality

"Looks similar" gets into a lot of gray areas. Some people like to argue that if they reproduce the sprites by hand and change a few pixels, that makes it legal. I honestly don't know how close is too close for copyright law. For something like Tetris, it's hard to enforce since everything is just made of squares. Once you get to something more complex like, say Mario, it becomes harder and harder to guess how close you can get to the original content (even if you created it all by hand) before it's considering copyright infringement. For those cases, I'd recommend asking a trained lawyer for advice.

ya, for copyright law it's if the overall content is the same, doesn't matter if you recreate it by hand or whatever, it'd be like selling/giving out a copy of a book in a different font and claiming it doesn't violate copyright... or just look at mp3s.

[Moth]

by the same reasoning that ibar and advertisement copywright stuff, couldn't it be considered illegal to ever post the word without permission?--> if so could this be filed as freedom of speech impedence and have copywright removed(*hopefully) even though it's more trouble than worth in this example, but as more and more people start doing similar remakes could it become a worthwhile project?


couldn't you also get away easy/ completely by claiming ignorance due to livbing under a rock?

[EndUnknown]

Originally Posted by Moth

by the same reasoning that ibar and advertisement copywright stuff, couldn't it be considered illegal to ever post the word without permission?--> if so could this be filed as freedom of speech impedence and have copywright removed(*hopefully) even though it's more trouble than worth in this example, but as more and more people start doing similar remakes could it become a worthwhile project?


couldn't you also get away easy/ completely by claiming ignorance due to livbing under a rock?

posting the word could not be a crime. using it to promote your product can tho. ignorance is not an excuse for the law.

[Fries]

this will come in handy before suggesting different games

[xeatmyshorts]

im thinking about what you said about nintendos rom thingy.. you think they really wont get mad at us for like downloading emulators or roms that are like for the NES would you?? i mean, they probably aint really making much money on the nes cartiges (since barely any store sells them anymore lol).

[Kiimir]

NES games can be purchased from the Wii console, so those NES games would be illegal to have unless you own a copy of the licensed editions (the original NES version or the Wii version).

[Tiptup300]

Originally Posted by Kiimir

NES games can be purchased from the Wii console, so those NES games would be illegal to have unless you own a copy of the licensed editions (the original NES version or the Wii version).

Wrong.

[Kiimir]

Originally Posted by Tiptup300

Wrong.

Originally Posted by http://www.nintendo.com/corp/legal.jsp

Can I Download a Nintendo ROM from the Internet if I Already Own the Authentic Game?

There is a good deal of misinformation on the Internet regarding the backup/archival copy exception. It is not a "second copy" rule and is often mistakenly cited for the proposition that if you have one lawful copy of a copyrighted work, you are entitled to have a second copy of the copyrighted work even if that second copy is an infringing copy. The backup/archival copy exception is a very narrow limitation relating to a copy being made by the rightful owner of an authentic game to ensure he or she has one in the event of damage or destruction of the authentic. Therefore, whether you have an authentic game or not, or whether you have possession of a Nintendo ROM for a limited amount of time, i.e. 24 hours, it is illegal to download and play a Nintendo ROM from the Internet.

| Nintendo - Corporate Information | Legal Information (Copyrights, Emulators, ROMs, etc.) for more.

[LedZepp]

Originally Posted by Kiimir

| Nintendo - Corporate Information | Legal Information (Copyrights, Emulators, ROMs, etc.) for more.

Yes, but who owns the Wii? Nintendo!! Who owns NES? Nintendo!!

See the logic there?