I've seen this topic crop up at the forums from time to time. I'm also dealing with it on a regular basis myself due to my main project being a sequel to a SNES (Terranigma). However, I've never really had any larger discussion on the topic with other game devs. So...
Should fanfiction games be legal?
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, currently. I've never heard of anyone being sued for making a private, non-profit fanfic, but I've heard and experienced the practice of Cease & Desists letters, which request you to remove such a project, while threatening legal actions if not followed.
Then there is the argument of fair use. Technically from what I understand, though I'm not a legal expert, fan-fiction most likely would not fall under fair use. Since the ruling of this seems to be fairley subjective/specific, it would be interesting to see the result of such a court case, but I belive no private fanfiction write/programmer is willing to let it go that far. I also don't want this to turn into a mere legal discussion, so nevermind that...
Now I see that there is a general desire to protect one's work, and I agree that not anyone should be able to use your own intellectual property to enrich themselves. However, what I don't really see is why that is a problem with private (= developed by individuals and not a company), non-profit, fan-fiction games, which fully states the original source of its material (= doesn't claim ownership for stuff that they didn't make themselve), which are put online.
By producing such a game, I'm not making any profit off of their work. Also, in my case, I'm making a sequel to a game whose franchise has never been used for the last 19 years (not even in the Wiis retro store). So I'm also not taking any market-share or generating profit-loss due to a free alternative to nintendos/enix charged products of this franchise. I can see this being a problem with currently active franchices like Zelda, Mario... howerver, I also belive that this is not a real issue. First off, most/all the fanfic-games are on the PC anyways, so its not even the same platform/target audience (at least for console only games). Second of all, most fanfics eigther suck, or are at least wastly inferior to their original counterparts (1 person cannot possibly achieve the same quality of a game like the current mario titles in a feasable timeframe). Thus, I belive that fanfiction (in the frame I gave) does not possibly inflict any damage to the original games copyright holder. Or am I missing something?
So what this leaves me personally with is just the attitude of "Its our trademark, we control what we do with it", despise any considerations about if it actually affects them at all. Which again is understandable in its core, but doesn't make much sense to me in the context of like what I am doing. I also understand that legally copyright/trademark holders somewhat have to enforce their copyright for it to keep validity, and that with there being no real legal regulation towards this kind of non-profit fanfic, they can't just be like "yeah, do whatever". Some studios seem not so strict about it, but others bring down fan-made games on a regular basis. Other studios even endorse or promote fanmade games, which I belive is great - though what I'm suggestion is that there should be some sort of legal regulation towards non-profit fan made games, so that there can't just be someone to hack the ROM of the newest Zelda game, replace a few textures, resell it and claim its "fan-fiction" and get through with it. But us people who are just making a fan-game due to general admiration of the games of our childhood - it saddens me personally that I basically always have to live in the fear that one day I will be shut down.
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.
- 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
- It does not actively offer a free, full alternative to a game that is currently being sold.
- 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).
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? If so, why/why not? I know I'm probably strongly positivly biased towards the idea of legal fan-fiction due to what I'm doing, so I'd really like to hear other devs ideas towards this - like, what would you say/do if someone made a fan-fiction game based on one of your games (in the context I've given)?