monalaw

I'm wondering if it's legal to give away remakes of old games?

To answer this overly broad question simply, "No." Any work produced during or after the 1930s is more or less still protected under the copyright act, which includes every single video game produced in this century. The only way to legally remake a game from an existing franchise is through a valid license.

An additional note-- once you have something fixed in a tangible form, whether it be a script or prototype, you will be running the risk of being joint authors/owners of the work. If that happens there's little you can do to prevent them from exploiting the work, since joint ownership in IP is tantamount to being tenants-in-common. In other words, you'll each own an undivided interest in the work. At that point either party can, with the exception of assignment or exclusive licensing of the entire work, do whatever they want with it. This includes selling off their interest in the work.

   To avoid this you'll want to ensure that any agreement you enter into has an IP control provision. This could be a work for hire, assignment, or rights management provision that limits how the other party can exploit the work both prior to or after the release.

You'll need to be careful with non-compete provisions, as excessively broad non-competes are invalid in most jurisdictions. In fact non-competes in general are invalid in many states, so it's important that your contract is governed under a jurisdiction that recognizes this constraint.

  Finally, it's important to specify in detail what constitutes confidential information. The most problematic aspect of upholding an NDA is the fact that the other party may be unaware of what is confidential versus what isn't, so you need to make it clear in the agreement itself that correspondences relating to ideas concerning the game's production, both oral and written, are confidential and the disclosure of those ideas will lead to economic harm.

Because I've gone into this topic ad nauseum in the past I'm just going to let what I've written earlier stand.

http://www.gamasutra.com/php-bin/news_index.php?story=26290

The thing about licenses, EULAs, ToS statements, and other legal agreements is that they are purely fuctional. They are generally not considered creative works as far as copyright law and other IP rights are concerned.  

They still have some protections.  You cannot claim original ownership or various other rights that are protected by copyright, but as purely functional text you can generally copy it and incorporate the terms into your own agreement.  You will absolutely need your lawyer to review it.  Your lawyer probably already has a collection of agreements.

Authoring an agreement is something you should leave to lawyers.  Seemingly simple phrases have very specific meaning in the law; if your contract says you will use your 'best efforts' to do something that is an extremely high effort standard.  Other words like 'may', 'might', 'should', and so on will be interpreted at face value, which is to say, they are entirely optional.  Anything that was omited is generally interpreted to be intentionally omitted.  If you listed out 7 specific rights to be transferred but omitted one that is frequently mentioned, that omitted value is assumed to be expressly left out.  

Omitting just one tiny detail can make the entire contract void or reduce its value to the point of uselessness.  Accidently including a tiny extra item can bind you in ways that are unexpected and even fatal to the business.  Don't write contracts; tell a lawyer what you want and have the lawyer write the contract.

The argument that because a contract is "functional" it is not protected by copyright law isn't true, and it's actually really troublesome that people think it is. While a lot of "traditional" contract language may not be sufficiently original to warrant protection, contracts that employ different writing styles to make a contract easier to understand are almost certainly worthy of copyright protection (and yes, there's case law to back this up). How a contract is worded, arranged, and the type of language used to bind the parties is actually part of a (sometimes exhausting) creative process unless the drafter is relying entirely on a prior form, and even then that prior form may be protected. Many lawyers, including myself, put time and effort into drafting original contract content and a body of form agreements for the precise reason that we don't want to be sued for copyright infringement by our colleagues. A lot of lawyers spend time developing styles that are more personal/in plain English to make agreements easier to understand. I know a lot of lawyers who take those rights and their efforts very seriously. We may also copyright our materials and make a statement to that effect in our engagement letters.  

Some licenses, like GPL, are free for use under a creative commons license. However, those licenses serve a very specific function that you may be loathe to adhere to unless you're selling an open source product. You may also find some other contracts out there that under a creative commons license, but don't expect every contract on the internet to be free for your use.

In short, it's best to contact a lawyer to prepare an EULA for you.

The license that content creators must grant under the TOS is straightforward. Both Google and end users have a non-exclusive, perpetual, worldwide license to use any content uploaded under the terms of the TOS. If you upload content, in other words, you are granting a perpetual, royalty-free, worldwide non-exclusive license to both Google and those who use the Google 3D warehouse. While the content creator can make the content available under a different license, said license can't interfere with the license granted under the TOS unless the content creator removes their content from the 3D warehouse subject to the termination requirements. Even so, any use of the content by google or end users PRIOR to termination will remain protected under the license.

If you are an end user (which you would be in this case) you can use that content in any manner described in the ToS, including:


to reproduce the Content;
to create and reproduce derivative works of the Content;
to display publicly and distribute copies of the Content;
to display publicly and distribute copies of derivative works of the content.

There is no limitation on commercial use. The enumerated rights are those provided in Sec. 102 and 103 of the Copyright Act, and the act anticipates commercial use.

Because EACH content creator grants this license for any works uploaded to 3D warehouse, this applies to every piece of content uploaded by content creators. Because the license to the end user is substantially similar to Google's license in the content uploaded, the "one model" argument makes little sense-- the license applies to all Content (all information, data, text, photographs, graphics, messages or other materials posted or displayed on Google Warehouse) generated by content creators.

However-- bear in mind that you're relying on the integrity of the person who uploaded the content. If THEY infringed on someone's copyright in creating the work and you later use that work, you may also be brought into an infringement action. Google is protected under the DMCA safe harbor for service providers that create access to user generated content. You are not. As is always the case, it's usually smarter to come up with your own content to avoid most IP problems.