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Bovine13

Copyrighted material in a freeware game

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Original post by Bovine13
Is it illegal to use copyrighted names, (i.e. Star Wars, LOTR, Harry Potter), etc. in a freeware game?
Those are trademarks and their use isn't permitted without permission.
Quote:
As in, if I wanted to make a Star Wars game that was free, would that be illegal?
Use of the story, character, imagery and sounds would be breach of copyright.

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Really? I thought use of a trademark that you give due credit for and gain no profit from was perfectly legal. I mean, how many fansites, online role-players (chats, message boards, et cetera), and fanfics would be liable to be sued?

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Original post by orionx103
Really? I thought use of a trademark that you give due credit for and gain no profit from was perfectly legal. I mean, how many fansites, online role-players (chats, message boards, et cetera), and fanfics would be liable to be sued?

Trademark law gives the trademark owner the exclusive right to use that trademark for the purpose of business or to grant rights to others to use it (terms and conditions apply, your trademark may be at risk if you don't keep up payments on the ... etc etc).

Copyright give the owner the right to control how their creations are used and to grant to others a license to make creative or commercial workls based on the copyright material.

If you use them without the owners permission you deny them those rights and breach copyright/trademark law.

As johnhattan said. Just because others haven't been caught doesn't mean it is allowed. Many fan/hobby projects have been closed down by companies like Fox and Lucasarts.

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Guest Anonymous Poster
All of them. It just doesn't make business sense (yet) to sue every website out there.

Quote:
Original post by orionx103
Really? I thought use of a trademark that you give due credit for and gain no profit from was perfectly legal. I mean, how many fansites, online role-players (chats, message boards, et cetera), and fanfics would be liable to be sued?

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So what happens if you already released a product, thousands of people have downloaded it, and then they catch you? Do you get fined, or are you forced to stop distrbuting it, or what?

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Guest Anonymous Poster
Sometimes it starts with nifty "cease-and-desist" letter with a delay to comply; if you don't comply then the publisher gets nastier. If the publisher really feels like it, you can get into a criminal suit fairly quickly: you should get the visit of law officials who will give you a seizure notice and take away all your computers, backup CDs, etc. You will then be summed up to appear before a judge for a summary where the publisher will exhibit its case for breach of copyright along with its claim for damages. It usually goes downhill after that.

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Most companies wont bother to go as far as court because they know you don't have any money they can take from you. However they will go far enough that you incur nice big legal bills from your lawyer responding to all their letters etc.

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Let's check the law (Title 17, ch. 1, section 107):
Quote:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.


The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.


It's a tossup as to whether you have to meet all qualifications or just one. "The nature of the copyrighted work": well, for Star Wars and LotR, there are movies, books, and video games, so you'd probably fail on that count--it's almost a replacement product. "The amount and substantiality" is a twofold qualification: if you use a two-second clip from Star Wars, it's probably not infringing (though there are extreme mixed CDs that have been sued for using 2-second clips from hundreds of copyrighted works without licenses; US copyright law is implemented badly, in the same way that someone who's missing four limbs and a lung is doing rather badly). And if you're taking a number of characters from the original, copyrighted work, that would probably be infringement. (Unless, of course, you used only the most minor characters and took them away from the main storyline far enough. But you'd still be using the same world...that's illegal.)

As for the effect on the market value for the copyrighted work...if you're not selling it, it can still have an effect. If I made a freeware game that was similar in many regards to Doom III and had equivalent graphics and features, that would impact Doom III's market share. On the other hand, so would Unreal III. So if id could show that your product takes content from the Doom series AND that it's losing market share to you, then it has a powerful case and can seek damages.

So what if you have a game that doesn't even compete but takes content? It's probably still illegal--you'd want to talk to a lawyer--but you probably won't get sued over it. You might receive a cease-and-desist order eventually, or perhaps the copyright holder will see your game as a marketing scheme and perhaps try to take it over for a pittance, threatening lawsuits if you don't comply. Or, since your work is illegal (for distribution; you could make a thousand Star Wars games legally if you don't distribute them), they can simply steal the content, put a multimillion dollar budget behind it, and make something that leaves your game in the dust.

If, on the other hand, you don't squat on someone's trademark and only borrow a few world details--the Force and lightsabers, perhaps with different names--you should get out without trouble.

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Quote:
Original post by Bovine13
Is it illegal to use copyrighted names, (i.e. Star Wars, LOTR, Harry Potter), etc. in a freeware game? As in, if I wanted to make a Star Wars game that was free, would that be illegal?

To summarise:

Those names aren't copyrighted -- names, unless they are very very long names, can't be copyrighted. They can, however, be the subject of a trademark.

In the US, it is unlawful to use somebody else's trademark if (1) your use is "likely to cause confusion, or to cause mistake, or to deceive" and if (2) it is "in connection with the sale, offering for sale, distribution, or advertising of any goods or services". This applies even for trademark dilution -- you must use the mark for commercial purposes.

This means it's perfectly legal to use a trademark in a game that you don't use for commercial ends.

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