#163995 - DiscoStew - Fri Oct 17, 2008 11:17 pm
When I first began working on my DS project, I had the goal of making a game that was more of less an extension of an existing commercial game, complete with having mechanics and gameplay just like it, but adding my own touches. Over time, as I began working on a basic editor to help speed up the process, I pretty much turned my focus from making the game, and making more of a game engine and an editor that would still replicate the mechanics of this game I wanted to extend from, but allow other people to create their own games using them. Just like the RPG and other game creators, this would resemble that for the specific game genre.
Reviewing projects by other people, especially Chrono Trigger Resurrection, the reason for the Cease and Desist orders on those were to protect the IPs related to those games (did I get that right?). Basically, my original goal would probably end up the same way had I continued down that road. But what about this new goal with the engine/editor? It's copying the mechanics (from a visual referencing, not actually copying/converting code), but I'm also adding new things to it. Some time down the road, I'd want to continue with my original idea, but using my engine/editor combo instead of making it from scratch, or make it purely a game of it's own than part of a collection through my combo.
Would I be violating anything if I were to go down this route?
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#163996 - bean_xp - Fri Oct 17, 2008 11:53 pm
Sounds fine to me, but it's difficult to know for certain without knowing the genre/specific mechanics in question?
#164004 - sgeos - Sat Oct 18, 2008 4:03 am
The short answer is no. Barring patented game systems, you are free to make clones and there is nothing the maker of the original can do so long as the clone does not use their IP.
On the otherhand, you could be C&Ded for doing something like making a Disney puzzle game without their permission. The puzzle game is not the problem, the IP is.
#164008 - DiscoStew - Sat Oct 18, 2008 9:22 am
I planned not to include any familiar assets or references of an existing IP in the engine/editor itself (would mentioning that it's more or less a clone of an existing IP be crossing that thin line?), but what about the games created with it? I don't have any control over what people would make with them, but I do have control over what 'I' make with it.
If I were to make something with it that was related to an IP while still having nothing of that nature as part of the core engine/editor, would I be crossing the line?
That was the question I meant to ask. I understand a stand-alone game using references to an existing IP without permission is punishable, but what about the engine/editor (which won't have IP-relations in it) and the custom data made with it and running on it (which might have IP-relations)? As long as the engine/editor doesn't link to anything of that sort to function properly, would I be in the clear no matter what is made with them?
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#164015 - sgeos - Sat Oct 18, 2008 5:01 pm
The short answer is no, you will be alright. The real answer starts off with, "you have not provided enough background information about what you are doing..."
People go to court over this kind of stuff. If the IP holders feel you are trying to play games with them, they could take you to court over it. I don't know if they would have a case, but it might be enough pressure to close your project. The real question is, will you be threatening their business? If they feel you are, rational or not, they will come after your project.
I suspect your editor will be in the clear even if the game you make with it gets C&Ded. If you feel the need to be careful, get someone else to say "it looks like you are making a clone of ...". You don't have any control over what other people say, although, again people could argue over it.
If this is a small project that never become especially popular, it probably won't be important enough for the IP holder to pay any attention to, especially if you are being careful.
#164027 - tepples - Sat Oct 18, 2008 11:11 pm
| DiscoStew wrote: |
| I planned not to include any familiar assets or references of an existing IP in the engine/editor itself (would mentioning that it's more or less a clone of an existing IP be crossing that thin line?) |
Linux is more or less a clone of an existing UNIX IP, but SCO lost that lawsuit, as did IBM when Compaq cloned the IBM PC BIOS. Free Software Foundation even advertises that its GNU operating system is "not UNIX".
| Quote: |
| but what about the games created with it? |
Does Colgate-Palmolive sue Microsoft when people use Windows Movie Maker to remix Dr. Rabbit's World Tour? No, because Windows Movie Maker has substantial non-infringing uses. Instead, Colgate-Palmolive targets the YouTube accounts of remixers such as walrusguy.
| Quote: |
| I don't have any control over what people would make with them, but I do have control over what 'I' make with it. |
Which is why I make sure that the skin that I bundle with the PC version of Lockjaw Tetromino Game doesn't look like any Tetris Company product.
| Quote: |
| If I were to make something with it that was related to an IP while still having nothing of that nature as part of the core engine/editor, would I be crossing the line? |
The blanket term "intellectual property" clouds thought. You should analyze the individual exclusive rights separately: - Patent: Very few video games' rules are patented. I can think of three examples: Dr. Mario, the 3D mode of Pokemon Puzzle League, and Dance Dance Revolution. Of these three, only DDR's patent has ever been taken to court.
- Copyright: Include original sample assets, not derived from the original game.
- Trademark: Don't make your clone's name confusingly similar to the original game's name (for example, don't put "tris" into a falling block puzzle game's title). And in the documentation, don't do anything that might suggest that your clone is sponsored or endorsed by the original game's publisher.
| Quote: |
| I understand a stand-alone game using references to an existing IP without permission is punishable, but what about the engine/editor (which won't have IP-relations in it) and the custom data made with it and running on it (which might have IP-relations)? As long as the engine/editor doesn't link to anything of that sort to function properly, would I be in the clear no matter what is made with them? |
As long as you distribute a complete copyright-original game that demonstrates the engine, and you do not distribute any game using infringing custom data, this should establish a substantial non-infringing use of the engine.
Another technique you could try is making your engine general enough to clone games published by two different publishers. For example, it wouldn't be hard to turn Lockjaw's engine into a clone of Columns or Puyo; I'd only need to add color-per-block and swap out the line clear detection.
I am an armchair paralegal, not a lawyer; as such, this post contains no legal advice. If you are still unsure, talk to your copyright lawyer.
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#164059 - sgeos - Sun Oct 19, 2008 9:10 pm
| tepples wrote: |
| As long as you distribute a complete copyright-original game that demonstrates the engine, and you do not distribute any game using infringing custom data, this should establish a substantial non-infringing use of the engine. |
But, they can still take you to court even if they don't have a case. Depending on who you are dealing with, they might do just that in an attempt to get you to back down.
You could worry about exactly what to do when they send you a cease and desist order? I do not think it will get to that as long as you are discreet and careful. The courts in the USA actually make a surprising amount of sense. Things like ill will and intent are taken into account, although there are incompetant judges just like there are incompetant people everywhere.
| tepples wrote: |
| I am an armchair paralegal, not a lawyer; as such, this post contains no legal advice. If you are still unsure, talk to your copyright lawyer. |
I'm not a lawyer either. If you want real advice, go talk to a copyright who charges $100+ an hour. =P
#164113 - tepples - Mon Oct 20, 2008 10:13 pm
Today, I discovered another U.S. case to consider: Incredible Technologies v. Virtual Technologies. Incredible publishes Golden Tee but doesn't patent the control method. Virtual publishes a clone of that game called PGA Tour Golf. No program code was copied, and all the assets in PGA Tour Golf were either original or licensed from PGA Tour Inc. As for non-literal copying, the 7th Circuit court found that anything Virtual copied from Incredible's product is not subject to copyright under the sc?nes ? faire doctrine.
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#164130 - Lynx - Tue Oct 21, 2008 4:54 pm
| Quote: |
| But, they can still take you to court even if they don't have a case |
Anyone can sue anyone else for any reason. You only have to pay a filing fee and fill out the paperwork.
Case or not, the defendant is going to need to hire a lawyer just to ask the judge to throw it out. It's one of the many problems with the US court system.
If you do everything with a fear of being sued, you can't do anything.
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#164178 - sgeos - Thu Oct 23, 2008 7:56 am
| Lynx wrote: |
Anyone can sue anyone else for any reason. You only have to pay a filing fee and fill out the paperwork.
Case or not, the defendant is going to need to hire a lawyer just to ask the judge to throw it out. It's one of the many problems with the US court system. |
And, if you can not afford to do this, it is a good idea to cease and desist if they request, even if you don't think they have a case.
| Lynx wrote: |
| If you do everything with a fear of being sued, you can't do anything. |
Sure, but you can give anything a shot if you are prepared to stop if they ask you cease and desist.
#164220 - Lynx - Thu Oct 23, 2008 8:20 pm
That's my point.
You just have to go for it and hope they send a C&D prior to filing, keeping in mind that it cost them money to sue you as well. And it's not in their best interest (financially) to sue a lone homebrewer. So, you have a better chance of receiving a C&D prior to them filing. As long as you don't blatantly infringe on trademarks (which require the owner to enforce, or they lose them) you should be ok.
Also, I am not a lawyer (my friend is) and I worked for a company that lost their trademark for lack of enforcement..
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#169623 - Karatorian - Mon Jul 27, 2009 9:36 am
Game mechanics aren't copyrightable. The can be patented, but usually aren't (and any but the most original probably have prior art). Therefore, your game engine and editor will be in the clear. Heck, most commercial games are simply a rehash of what's been done before (sometimes better, often worse).
However, once you finish the engine, things get more complicated. Generally, you can't be held liable for what your users do. (However, you could be, if you encourage them to violate copyrights or host their creations.) But when you yourself return to your original idea of building off the game that inspired this whole thing, then you could get into trouble.
Just because you've split the project into an engine and a dataset for that engine won't protect you if that dataset is infringing on someone else's rights. It would offer some insulation in protecting the engine itself from being the target of an injunction, but you'll still be opening yourself up legally.
Basically, it comes down to how high profile the project becomes and how much the original developer cares. Even companies that are relatively relaxed when it comes to fan art and stuff will go after you if they feel you're hurting thier profits or reputation. Furthermore, if you infrindge thier trademarks, they really have no choice. Unlike copyright and patents, you must defend trademarks or risk loosing your protected status.
That said, the spit does offer another advanage. If you decide it's worth the risk to carry on with the project, you could take some steps to protect your identity. For instance, you could release the engine and editor in your own name (or preferred nick) and get the rep you deserve for the technical end, while releaseing the questionable content anonymously (or psudo-anonymously). However, there's still a risk you'll get caught.
IANAL, but I'd say, if you want to do it, do it. However, if a cease and desist shows up, comply. Chances are, you won't get sued if you don't piss them off too much.
#178359 - juttt45 - Mon Mar 30, 2015 10:19 am
I do not think it will get to that as long as you are discreet and careful. The courts in the USA actually make a surprising amount of sense. Things like ill will and intent are taken into account, although there are incompetant judges just like there are incompetant people everywhere. ???
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