Should fanfic games be legal?

Personally, I don't think that literally cloning or remaking or creating a sequel to an established property is illegal or should be illegal. Assuming it's for private use and not for public consumption. And putting up a YouTube video of your efforts, IMO, shouldn't be illegal as well. But when you are distributing the actual game to the public, even for free (ie. no profit), there should be limits to that. Some here would say an outright ban to distributing. And I think that's fair. Companies put a lot of time, effort, and money into those IPs. So for anyone to come over and pretty much copy or derive, then distribute, something off their hard work without proper compensation is wrong.

We all at one time wanted to make a fan-based derivative of some game, book, cartoon, tv show, or movie. That's what being a fan and aspiring programmer will do to you :) But we have to respect the property of those companies as well.

Personally, my own game is already on the extreme side - I'm making a direct, storywise sequel to the original game, using some of the characters, the same gameplay-mechanism (with extentions), and due to lack of artistic talent and for nostalgica purposes the original graphics (with edits) and sounds.

I know that it is technically a grey area with a trend towards illegality

Well, no, not quite. Some of this (gameplay) is a grey area, depending on how "telltale" or "corporate identity" it is, or depending on whether the original implementor may even have it patented (think "Crazy Taxi").

Everything else is not at all a grey area or a trend towards illegality, but very definitively breaking the law (knowingly and willfully, according to your description, which results in higher penalties in most countries) and putting you at risk of being pulled to a civil court and being sentenced to pay damages. You really, really shouldn't do that unless you are a homeless who has absolutely nothing to lose.

I'm not making any profit off of their work

Irrelevant, even if that is the case. You can still "damage" them without making profit yourself. For real, or alleged (which, when it comes to it, is the same to you, either way you're going to pay).

Now, for the broader question "Should fanfic games be legal" (not should yours, which reuses assets from the original, be legal), I am a tiny bit in favour of fan fiction, but overall I guess that the original author's rights are (and should be considered) the supreme value.

Yes, fan fiction can be helpful and important and can indeed be big profit for the original authors without really doing much or anything. If the original authors think that it could be beneficial, they might officially allow your fanfic, though. Why wouldn't they, you basically work for them for free.

But fan fiction can also interfere with plans that they may have (which you cannot possibly know) and it can directly cause damage (in unforeseeable ways). The authors might, and are likely to, simply not want that. In the most extreme case, a notable part of the community could consider your fanfic as sufficiently canon, and compel the original authors to do something they didn't want when they decide to write a sequel (or a movie picture, or sell t-shirts, or whatever), possibly 10 or 15 years later.

All in all, the question is a bit like "Shouldn't I be allowed to use your car, or anyone's car that I find on the street? I will refuel it after use, too".

It's your car, and without having your explicit permission, I really shouldn't be using it, even if I don't have any obvious bad motives and even if I intend to refuel it. It doesn't matter whether I only use your car while you're asleep or at work, either.

You may not be making a profit, but that doesnt mean you arent potentially damaging the IP's universe by making something of your creation, and labeling it as a fan sequel. This might not really be much of a problem with such an old IP, but it's still something to think about.

Depending on the owner of the IP, have you considered contacting them about using their IP in a non-profit way? Since there sounds to be little interest from the original developers, they may or may not be fine with you doing this.

Like alpha says, there are plenty of worlds we would like to use as a basis for our own creation, and it's really a tough question about if this should be considered ok or not. Personally i think so long as you do nothing to harm the brand, and make no profits from there work it should be ok, but always be ready(and prepared to accept) to stop if they say something.

if it's completely free, write who is the original author and clearly state that is not a cannon story..why should i care about it? if it was me I would allow a non canonical sequel for one of my games, I would be flattered in fact!

I don't know if it's legal or illegal, I think it isn't... but the companies should be more open-minded with these things

Hi, I didn't read all the posts. Sorry about that.

I just want to say what's the problem with it: The fanfic may promote an image of the work the author does not want.

Just look at the Power Rangers Fan Film (warning: NSFW) and the response of Jason David Frank (which is basically the response of the producers since he was having a contract getting signed with them): It does not suit and may even damage the public image producers want to keep about the franchise.

The fan film was great. It was awesome. It appealed to older audiences (such as myself) that grew up with the show when we were kids. The problem: It's still an ongoing series aimed at ~7-12 year-old kids. So... rebooting it as dark, adult themed version with drugs, realistic violence, derailed main characters and nudity is understandably not a sensible thing to do while the official show is still being watched by kids.

This is the logic of why C&D exists. Of course then there's completely harmless fan fic that does help the original material to get promoted and yet the company is extremely closed minded about it (though sometimes it's just their legal dept trying to look cool, look for a raise, or justify their big annual paychecks). It is in their right to send C&D. Should they? That's a different question (ironically see in fact that this PR fan film didn't get a C&D as far as I know).

Cheers

I believe you'd still be infringing on the brand. There's more to a brand than profits. It's the image it shows to people (with or without disclaimers).

Case in point, the "Alpha footage" sentence has never ever prevented critics to say a game looked bad (though arguably, alpha is not art-complete, it's not even content complete, it's just feature complete).

So showing your game, which, given you don't have the same resources (financially, and human-resources-wise) might end up with a sub-standard quality to what they were hoping to achieve, or touch a message they didn't want to convey. This hurts the brand, whether you profit from it or not.

I think the only legal use of fanfic material should be in your basement, and remain there.

Why don't you turn it into an IP instead?

Should fanfiction games be legal?

So, your question is "should we try to change the intellectual property laws"? Is that what you mean to discuss here?

There is a wide range between what is acceptable and what is not. It varies from person to person, from place to place.

The difficulty is that it is hard to pin down a bright-line rule, so in most places the rule is placed very strict and it is the burden of litigation that causes people to wait until infractions are severe before taking legal action.

It is often easy enough to show that the original content creator owns the worlds they imagine and publish. Copyright law protects the rights of authors to create derivative works, and in the case of fan fiction, it only takes a small number of unique items for something to be considered derivative. If you start talking about "Coruscant", "The Force", and "Light Sabers", you're derivative from Star Wars no questions asked. If you start writing about Legolas and Gimli, you're derivative of LOTR. If you start writing about Harry, Ron, and Hermione, you're derivative of Harry Potter. If you've got a starships visiting the pleasure planet Risa, have some aliens like Vulcans and Klingons and Borg, you're derivative of Star Trek.

There are also potentially trademark concerns as well. Licenses usually require strict review by the trademark owner to ensure the products, including books and movies, meet the requirements of the brand. When there are some who pay to license the brand names and logos and follow the rules, it can harm them when fans use the names and devices and don't follow the rules. Poor quality work can harm the brands and dilute the value of the brands.

The bigger questions for the owners of the content, whether they are single individuals or giant corporations, is what to do about those unauthorized works.

The law in most places preserves the rights for ALL derivative works. The content owners could sue ANYONE for ANY fan fiction. Similarly the misuse of their trademarks allows for lawsuits against any potential infringement.

However, lawsuits are expensive and time consuming. It costs time and money to defend the rights of the original content creator. Consequently most don't take action unless the fan fiction crosses boundaries that the content creator feels are importnat.

Some brands historically have chosen to send legal nastygrams to all fan fiction, no matter how small. This is usually the case when the brand is still growing and creating new stuff.

Babylon 5 was very strict when the series was running, going after anyone who published material on the Internet, but they softened up when the series was finished. When Star Trek had multiple products running concurrently in the early 1990s they were extremely strict against unlicensed fan fiction, stating a major reason is they didn't want fan-created content to redirect the stories and plots that were being developed. Even so, they tacitly permitted a few fan fiction products, and once the main products were finished with production they became more supportive of limited fan fictions since they encouraged the longevity of the products.

Others have chosen to allow limited fan fiction, but only as long as it doesn't harm the brand, and as long as it doesn't compete against planned products.

Star Wars fits that one, Lucasfilm pursued legal action against anyone they found using the characters in pornography and against anyone the felt were using the characters in ways they felt were offensive. Fans were asked to stay away from certain time years because they would be covered by additional movies. As long as fan fiction was kept as small products, unoffensive, and outside the proscribed dates, they approved of fan-created magazines and publications. Bigger names were invited to create official books for the series, and some of the fan stories were adopted as official canon for the series.

Right now i think the line is in a pretty good place. The bright-line rule is for any derivative work. Enforcement of the rule is under the control of the original content creator, they can decide how much or how little of their content the fans use before enforcing their rights.

Thanks for all the responses so far, I appreciate seeing different points of views. I'm obviously not going to respond to everything, just some things that stood out for me:

So, your question is "should we try to change the intellectual property laws"? Is that what you mean to discuss here?

Yes, though I would not formulate it that proactive. I don't really expect anyone to change that law, nor would I try myself. I wanted to hear arguments pro/contra towards the loosening of copyright-laws towards fan-fiction, kind of like fair use already does for different aspects.

There is a wide range between what is acceptable and what is not. It varies from person to person, from place to place.

The difficulty is that it is hard to pin down a bright-line rule, so in most places the rule is placed very strict and it is the burden of litigation that causes people to wait until infractions are severe before taking legal action.

I guess you are right, it is extremely hard to find a common denominator, which probably means there is really not much to change. I see why it might be wanted for companies to not allow fan-fiction, I quess I'm just bummed out that some companies are just like "You no take IP!" without even considering whether it hurts them or not (if you contact them, that is - I can get behind the though that most companies have a good reason if they go out and actively C&D fanfiction work, due to your explanation).

Depending on the owner of the IP, have you considered contacting them about using their IP in a non-profit way? Since there sounds to be little interest from the original developers, they may or may not be fine with you doing this.

Yes, I thought about it, though as I mentioned the company in question is Square-Enix, which has a strict policy of eigther C&Ding fan-fiction, or in case of a contact will just send a auto-response of one of their lawyers saying that square-enix games can never ever be under any circumstance target of fanfiction. Actually, I'm not even sure whom the IP even belongs to - said game was originall developed by Quintet (which doesn't exist anymore), pushlibed by Enix (which is now Square-Enix), and licenced by nintendo. I think I'll go as long as I can without C&D, if I ever get one I'll sadly have to take it all down.

All in all, the question is a bit like "Shouldn't I be allowed to use your car, or anyone's car that I find on the street? I will refuel it after use, too".



It's your car, and without having your explicit permission, I really shouldn't be using it, even if I don't have any obvious bad motives and even if I intend to refuel it. It doesn't matter whether I only use your car while you're asleep or at work, either.

The thing I don't like about this kind of real-world analogies is that they don't really match. The reason I am not allowed to use your car in this example is that its a physical, unique objects, and by using it I physically take it away. This means that in the time I'm using it, you cannot use it yourself. There is a difference in IP, being that thoughts, ideas, stories, games etc... can coexist, so your example would rather be "Shouldn't I be allowed to clone your car, or anyone's car that I find on the street?". (Note: this is not an objection to the rest of your argumentation, just towards this example).

Everything else is not at all a grey area or a trend towards illegality, but very definitively breaking the law (knowingly and willfully, according to your description, which results in higher penalties in most countries) and putting you at risk of being pulled to a civil court and being sentenced to pay damages. You really, really shouldn't do that unless you are a homeless who has absolutely nothing to lose.

Well, I kind of included this into my definition of "fan fiction". In case of video game fan-fiction, some of the mentioned objects are likely to be used. Think about it - even if you were not to use the original assets, in order to make a "fan fiction", you will most likely be using familiar symbols, stories, characters... think about a mario fanfic, even with complely new graphics, in order to even be considered a mario fan-fic you will have a mario, mushrooms, stars, etc... (unless you go the plagiarist route âla Giana Sisters, and that didn't go well eigther). From what I understand in copy-right laws, even extremely familiar graphics can qualify as copyright violation (so if you have said items/characters, even if you made them yourself, this would be no different a violation then if you just ripped them out of the emulator like I did). So in order to have a fan-fiction game that doesn't violate those laws, it would probably already have to be so distinct from the IP you were targeting, that if you change a few character names you might have a complete independant game anyway. Thats why I included those parts in my question, too.

Also, I appreciate the legal concern - I've though informed myself enough to safely be able to assume that the worst thing to happen to me is a C&D-letter, which is the common practice in such cases.

Case in point, the "Alpha footage" sentence has never ever prevented critics to say a game looked bad (though arguably, alpha is not art-complete, it's not even content complete, it's just feature complete).



So showing your game, which, given you don't have the same resources (financially, and human-resources-wise) might end up with a sub-standard quality to what they were hoping to achieve, or touch a message they didn't want to convey. This hurts the brand, whether you profit from it or not.

Well, you are already naming it - negative reviews can already damage the reputation of an IP, but those are excluded from copyright violation via fair use. Yet even I have to say that fan-fiction should not be able to exist inspite if it hurts the brand it is "copying". Even though my first results back in 2008 were really bad, I always try to do my best to represent the original game, by studying it, taking massive iterations to improve the quality, and staying as true to the original idea as I can. But since there can be people who just produce utter **** as fan-fiction, I quess thats another point why there cannot be a good regulation for this. I just wished there was some way for so called "harmless" fan-fiction to get an endorsement, and not be depending on the companies e-mail reviewer even handing any contact to responsible people instead of straigth to the "rejection-lawyers" :/ Will stay a wish though.

It's not a grey area, it's a clear cut black area, it's not your IP but someone elses, you don't get to pick wether you should have a right to it, you don't. If you're not competing with a game they're making you're still competing with the Monopoly they should have to make such a game.

Now if you're keeping it private it's no less a black area, it's just that no one cares, you can be in the wrong but not get sued because the person you're wronging doesn't care or know, it doesn't make it white, it just means no one cares it's black.

It's not a grey area, it's a clear cut black area, it's not your IP but someone elses, you don't get to pick wether you should have a right to it, you don't. If you're not competing with a game they're making you're still competing with the Monopoly they should have to make such a game.

Thats the kind of attitude/reasoning I really don't like. "Its my property, and you cannot use it" - "Why?" - "Because its my propery and you cannot use it!". While you are not even wrong about how it functions that way, thats IMHO not a good thing. Need I remind you that companies are using the exact same "reasoning" to shut down (negative) reviews, caricarture, persiflage and what not... even though we have fair use to technically protect that. See, I can get behind the reasoning of companies/IPs taking indirect damage due to fan-fiction, but there should be some reasoning - everything else is, in my opinion, not really desirable.

I'm just bummed out that some companies are just like "You no take IP!" without even considering whether it hurts them or not

The boring reason is probably that it is a lot cheaper and safer to just say "No", then to set some employee on figuring out if it is OK or not.... (and monitoring it during its lifetime to make sure it doesn't deviate)

I am not a lawyer here, so here's my penny.

Is it legal to copy someone else's works, up to the point of similar/identical characters and their names and plot lines? This is copyright infringement, and it's a clear boundary that it is NOT legal.

Now there's also the fair use law, which is what you can probably use in court, but the way I see it, it is for making references to existing games, kind of like writing a book about game design and using Legend of Zelda as a reference point. You are not making a whole new game based off it, but you merely use it as a reference.

So, it's not legal and probably not going to be legal anytime soon.

However, legal process only takes place if the rightful owner of the copyright decides to take legal action against you. The judges, random lawyers, the Supreme Court are not going to be actively scanning the interweb for copyright infringement. The copyright owners have to be made known of these other derivative works, and they have to file a claim against you. If they do, be prepared to lose, because all odds are stacked against you.

If the owner does not file a claim against you, then nothing is being argued, and everybody moves along. Nothing happens.

So, what can we do about this? You can call or email the copyright owners for a permission to write a derivative game. You cite all the stuff you said, not for profit, open source, etc, etc, or perhaps you can make a business deal and write an agreement that you have been authorized to make a derivative work. As a matter of fact, this is happening all the time. This is how game studios are able to make licensed games, where the owner of the license is typically another entity. Once the legal owner has granted an approval, within the context that you are both happy with, then you may proceed with the development.

Need I remind you that companies are using the exact same "reasoning" to shut down (negative) reviews, caricarture, persiflage and what not... even though we have fair use to technically protect that.

Do you have examples of this case? I would be surprised if caricatures are allowed to be taken down by the court, as that should falls under fair use. Perhaps the author of the caricature decides to take it down anyway rather than take it to court which could be expensive for both parties.

Copyright owners can contact you about it, write a cease and desist letter or whatever they think can scare you off. Nothing restricts them from doing this. What you decide between you two is up to you. If you can't come up with an agreement, then you have the court which shall decide what happens. But if you decide to take it down before taking it to court, then case is settled. However, it's not that it's illegal to draw caricatures, it's just you prefer to take it down rather than going to through the costly legal battle in court, which benefit nobody except the lawyers.

No, it's never been legal to create any derivative works unless there's an agreement for it, which I shall advice the OP to do if he's truly passionate about it. You can always publish your work without permissions, nothing is stopping you from doing that. Just don't be surprised if you receive a C&D or taken to court.

The boring reason is probably that it is a lot cheaper and safer to just say "No", then to set some employee on figuring out if it is OK or not.... (and monitoring it during its lifetime to make sure it doesn't deviate)

I quess thats true. I imagine it is much easier that way, specially taking into consideration that for popular franchises, there might be a ton of fan-fic games popping up all the time. I quess its not that easy, really.

So, what can we do about this? You can call or email the copyright owners for a permission to write a derivative game. You cite all the stuff you said, not for profit, open source, etc, etc, or perhaps you can make a business deal and write an agreement that you have been authorized to make a derivative work. As a matter of fact, this is happening all the time. This is how game studios are able to make licensed games, where the owner of the license is typically another entity. Once the legal owner has granted an approval, within the context that you are both happy with, then you may proceed with the development.

As I said, Square Enix is out of the option based on multiple reports from people who contacted them. Since the original developement studio ceased to be like 12 years ago, I might actually contact someone at eigther nintendo and/or enix to ask for who the actual current property holder is. Trust me, I much rather do this with endorsement from the developer, and I would have already asked if I didn't already pretty much knew Enix response. Isn't even just word-to-mouth - known someone personal who wanted to make a 3D remake of the same game, but got said unspecific response back from them.

As I said, Square Enix is out of the option based on multiple reports from people who contacted them. Since the original developement studio ceased to be like 12 years ago, I might actually contact someone at eigther nintendo and/or enix to ask for who the actual current property holder is. Trust me, I much rather do this with endorsement from the developer, and I would have already asked if I didn't already pretty much knew Enix response. Isn't even just word-to-mouth - known someone personal who wanted to make a 3D remake of the same game, but got said unspecific response back from them.

And that's their choice. You can call them 'jerk' or 'ass', but it's within their rights to be so. If you have an Aston Martin sitting in your garage, and your whole neighborhood knows about it and wants a test drive, how would you respond to each of their request? Should you grant all of them? No. You can deny all requests, and sit on your lawn with a shotgun, get called asshole, jerk, evil, and you certainly won't be popular in your neighborhood, but it's your right to do so, because it's YOUR car, not theirs.

This stuff is their property not yours, and they can do whatever they want with it, including trash it and never make a remake, and deny everyone who tries to make a remake.

So - do you agree on my stance toward fan-fiction games, or do you think copyright-owners should have the total control over the work anyways?

I think there needs to be a balance. The options aren't "Something that sounds nice because I'm presenting it in a favorable way" vs "Opposite extreme with Nazis added".

I don't like the current copyright system. I'm in favor of it being overhauled dramatically. However, here I'm just going to point out some things you may not have thought of.

I'm basically claiming that it should be legal to produce a fan-fiction game given those points:
- Its free of any charge and/or profit for the producer.

What about the distributor? If any game can be recreated and released for free by the producer, what's stopping some distributor from having a subscription service to gain access to a bunch of "free' games that he's funding directly or indirectly?

Also, you might be making the assumption that things released for free don't harm the profits made by the original developer. If Sonic the Hedgehog gets made, and Free Sonic the Hedgehog also gets made, people will play the free one instead of the costly one.

- It fully states and qualifies the original authors of the work, which parts of their work has been used and what has been contributed by the author of the new game

How? "Uses Art Object XYZ_foo_blah.png" multiplied by several thousand. That means nothing.

- The producer of the fan-fic game formally informs the owner of the original game about what he is producing, giving him the possibility to inspect what he is doing. This is the point I'm currently not applying to, because I know both from personal contacts and research that in case of a direct contact enix response is basically a 0815 C&D-letter. So this point really is only viable for people like me if there is a legal possibility to keep doing what we are doing (or the studio in question is known for having a positive attitute towards fan-ficton work).

What you're saying is, they can "inspect" but not deny. What's the point of inspecting then?
And then you say, they can give response if they are in favor, but they can't deny if they're not in favor.

That's a fake choice. "Choose 'Yes' if you want to praise me and give me permission. Choose 'No' if you want me to do it anyway, without your permission"

K, so suppose I make a fantastic game. You want it legally supported for people to take my characters, and make porn with them. What, so we have no moral rights? (in the USA, we don't explicitly have moral rights, but we implicitly do from other laws. And in other countries that do have moral rights, they can be taken too far, just like copyrights)
Sure, they'd do that anyway, but you want it legally permitted. Legal permission is almost equivalent to government-approved and encouraged.

Or suppose I release an amazing song. You want it legal for the Klu Klux Klan to use my song as part of their presidential campaign videos.

Copyright is designed to reward creators for their work, ultimately for the benefits of consumers long-term. If they are over-rewarded, and at the expense of consumer long-term benefits (which I believe it is), then we need to make serious adjustments from the ground up, not throw out entire chunks of copyright law without considering all the ramifications just so we (as consumers) can get our short-term desires met.

Do you have examples of this case? I would be surprised if caricatures are allowed to be taken down by the court, as that should falls under fair use. Perhaps the author of the caricature decides to take it down anyway rather than take it to court which could be expensive for both parties.

Of the top of my hat, I can give you two examples:

Nintendo recently decided to disallow Let's plays on the platform youtube. As early as 2013, it allegedly already wrote a warning to youtube channels showcasing nintendos content in those vidoes (for those who don't know: Let's play is a form of video format where a person plays through a video game, while giving eigther entertaining, educational, or funny comments), stating that it was infringing copyrights. Unless I am mistaken, legally Let's plays should fall under fair use as "review", since while the Let's player is showing the full game more or less, its his commentary/video feed that actually makes the Let's play. First, nintendo wanted to eigther take down all those videos, or take all the revenue those youtubers are making. Appearently they have now offered a deal for those people, taking "only" 40% of the revenue of all nintendo Let's plays. Now please correct me if Nintendos behaviour is legally correct, but as far as I am aware this should fall under fair use. See https://en.wikipedia.org/wiki/Let's_Play_%28video_gaming%29, under "Legal issues".

Second example that I am personally aware of would concern internet movie reviewers like the "Nostalgia Critic", who has received multiple copyright claims and had videos taken down, from big news company TMZ (which he parodied in one of his episodes), and from (relatively unknown) filmmaker "Tommy Wiseau" due to his review of the film "The room". This is the two examples I know of, but appearently those things happened more frequently. Again, correct me if I'm wrong, but aren't movie reviews/parodies supposed to be fair use?

So thats what I actually know of. Now while its true that nobody was being sued here (most videos where eigther taken down by youtube, or the claim of copyright-infringment was taken back, or the alleged offender took the videos down to avoid trouble), this was just my point: Companies are already making ridiculous copyright claims, this is not something that needs to be enforced by all means without exceptions.

Again, correct me if I'm wrong, but aren't movie reviews/parodies supposed to be fair use?

Reviews are free speech. Anyone can review anything and give their opinion about it.

However, when you mix "reviews" (your content), with the entire movie, or substantial portions of it, that's not a review. That's a review + massive copyright infringement.

Parodies are fair use, yes - under certain circumstances. Parodies also aren't mostly copying content directly.

An example of a parody is Spaceballs - virtually all the content is original content mocking the Star Wars content. Not copying the Starwars content wholesale and slapping new audio over it.

The internet loves to wave the flag of "fair use" without understanding what it means. "Fair use" on the internet means it's "fair" for me to "use" stuff that's not mine, however I see fit, and redistribute it to others. That's not what fair use actually means in our legal system.

I'm all for expanding fair use, I'm all for shortening copyright lengths (I actually think different forms of media ought to have different lengths instead of trying to give them all the same length, when they clearly have different economic life durations), but there needs to be a balance between creator rights and consumer rights, and we need to be careful not to tip from one extreme (all in favor of creators) to the opposite extreme (all in favor of consumers), because ultimately, copyright law in moderation, is beneficial to consumers long-term, by benefiting creators in the short-term.

In my ideal version of copyright laws (not fully fleshed out), things like Let's Plays would be protected, because they create more value than they destroy, on average. Making freeware versions of existing games without permission (before the much shortened copyright terms expire), on average, destroys more value than it creates. "value" here is both economic (for creators) and long-term benefits for consumers.