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Re-making an old game

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This is the email I have sent to gamelaw@gamedev.net. I haven't yet got a reply, I am posting here for other people with the same questions (NOTE: Cheese and Nucheese are two fictional names). -- I am a lone programmer and I am successfully developing the re-make of an old game, let's say it is called Cheese. The trademark for the game has elapsed but the name Cheese is still copyrighted and one day maybe the original authors will release Cheese II or something similar. 1) My game is going to be called Nucheese. Is this already a trouble? 2) The game will resemble the original game, even if it will have some differences and the original game graphics will not be shipped with any of its packages. I think this is ok. 3) The Nucheese game site does not contain explicit references to Nucheese as being a clone of Cheese. It does not contain direct links to the Cheese website but it contains links to other Cheese related stuff. There is a disclaimer in a Disclaimer page that says "All names and other trademarks referred to within this website are the property of their respective trademark holders. These trademark holders are not affiliated with this website or the authors". However I do use the Cheese trademark only for the 'Cheese' links section and for the 'Planned MODs' list item called 'Cheese' Am I safe? 4) Since the game is fully customizable through user MODs, it will be possible to re-create any game style, even the old one of Cheese using the old game graphics. The site will promote such modding activity (and of course for other MODs too) and offer the MODs for download. Will this be legal? Will this be legal with any other game graphics? I think no. Thank you [Edited by - legolas558 on March 29, 2006 9:52:13 AM]

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Quote:
Original post by legolas558
... The patent for the game has elapsed but the name Cheese is still a trademark since they will one day release Cheese II or something similar.


Games are not patented, they are copyrighted, and being that Consoles and PCs have only been around for ~30 years, I could almost guarantee no video game copyright has expired.

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Games are not patented, they are copyrighted, and being that Concoles and PCs have only been around for ~30 years, I could almost guarantee no video game copyright has expired.


Sorry, I meant to say that the trademark is in "dead" status, copyright about the name is active. I have edited the post. The questions are still unanswered however...

[Edited by - legolas558 on March 29, 2006 10:47:01 AM]

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Leg. wrote:

>1) My game is going to be called Nucheese. Is this already a trouble?

Yes, obviously.

>2) The game will resemble the original game, even if it will have some differences and the original game graphics will not be shipped with any of its packages. I think this is ok.

Your thinking can get you in trouble. "He who acts as his own lawyer has a fool for a client."

>3) The Nucheese game site does not contain explicit references to Nucheese as being a clone of Cheese.

It's obvious to everyone that that is exactly what it is, nonetheless.

>It does not contain direct links to the Cheese website but it contains links to other Cheese related stuff. There is a disclaimer in a Disclaimer page that says "All names and other trademarks referred to within this website are the property of their respective trademark holders. These trademark holders are not affiliated with this website or the authors". However I do use the Cheese trademark only for the 'Cheese' links section and for the 'Planned MODs' list item called 'Cheese'
Am I safe?

Absolutely not.

>4) Since the game is fully customizable through user MODs, it will be possible to re-create any game style, even the old one of Cheese using the old game graphics. The site will promote such modding activity (and of course for other MODs too) and offer the MODs for download. Will this be legal? Will this be legal with any other game graphics? I think no.

That one is a trickier question. Get a lawyer who isn't you. After you buy a good book on copyright and trademark. I've listed a couple good ones in FAQ 8 on my site.

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The important thing is to not use any of the "Copyrighted" material.

If you've written the code from the ground up yourself, and all of the artwork, sound, etc... is original, then you should be fine.

Gameplay itself is NOT copyrightable (as evidenced by the million and a half Pac-Man clones out there) but you have to be very careful not to use any of their original material. The example name you've provided, Nucheese, is probably no good. I'd go with "The Great Lemberger Hunt" or "Butter" instead.

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Quote:
Original post by tsloper
Leg. wrote:

>1) My game is going to be called Nucheese. Is this already a trouble?

Yes, obviously.

Yeah, I got it, "unfair competition"

Quote:

>2) The game will resemble the original game, even if it will have some differences and the original game graphics will not be shipped with any of its packages. I think this is ok.

Your thinking can get you in trouble. "He who acts as his own lawyer has a fool for a client."
Ok, but this is not an answer to the question. Thanks for the critics however.
Quote:

>3) The Nucheese game site does not contain explicit references to Nucheese as being a clone of Cheese.

It's obvious to everyone that that is exactly what it is, nonetheless.

But I am not explictly advertising it! I think there is a great difference.
Quote:

>It does not contain direct links to the Cheese website but it contains links to other Cheese related stuff. There is a disclaimer in a Disclaimer page that says "All names and other trademarks referred to within this website are the property of their respective trademark holders. These trademark holders are not affiliated with this website or the authors". However I do use the Cheese trademark only for the 'Cheese' links section and for the 'Planned MODs' list item called 'Cheese'
Am I safe?

Absolutely not.

Because of the links to Cheese related stuff?
Quote:

>4) Since the game is fully customizable through user MODs, it will be possible to re-create any game style, even the old one of Cheese using the old game graphics. The site will promote such modding activity (and of course for other MODs too) and offer the MODs for download. Will this be legal? Will this be legal with any other game graphics? I think no.

That one is a trickier question. Get a lawyer who isn't you. After you buy a good book on copyright and trademark. I've listed a couple good ones in FAQ 8 on my site.


Oh, now I realized WHO you are!

Thank you for your advices!

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Quote:
Original post by benfinkel
The important thing is to not use any of the "Copyrighted" material.

If you've written the code from the ground up yourself, and all of the artwork, sound, etc... is original, then you should be fine.

Gameplay itself is NOT copyrightable (as evidenced by the million and a half Pac-Man clones out there) but you have to be very careful not to use any of their original material. The example name you've provided, Nucheese, is probably no good. I'd go with "The Great Lemberger Hunt" or "Butter" instead.


I have written everything from scratch, and actually I am reviving a game more tan 10 years old using my custom graphics.

I think I will remove any reference to the original Cheese

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Leg. wrote:

>>>3) The Nucheese game site does not contain explicit references to Nucheese as being a clone of Cheese.
>>It's obvious to everyone that that is exactly what it is, nonetheless.
>But I am not explictly advertising it! I think there is a great difference.

I forget - where exactly did you say you got your law degree? And how many books on copyright and trademark did you say you've read? (^_^) See, I'm sticking with my original statement that you have a fool for a lawyer. Or whatever I said. Same thing. My point being that what you think is not relevant. If you had concrete knowledge in this regard, you wouldn't have asked our advice in the first place. My answer was explicitly in regards to your cited explicitness, as stated in the original explicit question. I DID understand the original explicit question. So argument is futile.

>>>... There is a disclaimer in a Disclaimer page that says "All names and other trademarks referred to within this website are the property of their respective trademark holders. These trademark holders are not affiliated with this website or the authors". ... Am I safe?
>>Absolutely not.
>Because of the links to Cheese related stuff?

No, because just saying "I respect the trademarks of others" isn't equivalent to putting on a bulletproof vest.

>I think I will remove any reference to the original Cheese

Very good thinking.

I have only been answering the exact questions you asked. I haven't been commenting on the general safety quotient of remaking an old game. Lots of people have cloned Shanghai, Pac-Man, and Tetris and never suffered any legal consequences. But numerous lawsuits have occurred over game cloning. Every case is different - every IP owner, every game, every cloner, every environment. There's no way anybody can give you a clear checklist of things to do to clone this "Cheese" game and remain safe. You're venturing into a swamp, and you need a friendly alligator to guide you. Get a lawyer who is not yourself.

[Edited by - tsloper on March 29, 2006 3:18:17 PM]

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Quote:
Original post by tsloper
Leg. wrote:

>>>3) The Nucheese game site does not contain explicit references to Nucheese as being a clone of Cheese.
>>It's obvious to everyone that that is exactly what it is, nonetheless.
>But I am not explictly advertising it! I think there is a great difference.

I forget - where exactly did you say you got your law degree? And how many books on copyright and trademark did you say you've read? (^_^) See, I'm sticking with my original statement that you have a fool for a lawyer. Or whatever I said. Same thing. My point being that what you think is not relevant. If you had concrete knowledge in this regard, you wouldn't have asked our advice in the first place. My answer was explicitly in regards to your cited explicitness, as stated in the original explicit question. I DID understand the original explicit question. So argument is futile.

Thank you for flaming. However my supposition was: since I am not using their dead trademark and their original copyrighted material, I cannot be sued.

Quote:
I have only been answering the exact questions you asked. I haven't been commenting on the general safety quotient of remaking an old game.
I am not, too. I don't believe in safety quotients.
Quote:
Lots of people have cloned Shanghai, Pac-Man, and Tetris and never suffered any legal consequences. But numerous lawsuits have occurred over game cloning. Every case is different - every IP owner, every game, every cloner, every environment.

Indeed. But the point that I am still missing - behind the post I submitted - is: what does me guarantee the fact that the trademark is 'dead'? I know that the IP is copyrighted but...
Quote:
There's no way anybody can give you a clear checklist of things to do to clone this "Cheese" game and remain safe. You're venturing into a swamp, and you need a friendly alligator to guide you. Get a lawyer who is not yourself.

I submitted this post to get some guidelines and your contribute has been decisive. Your advices about getting a real lawyear are also very good, but considering that I am going to release a freeware game...I do not have a huge budget. I don't have a budget at all, to tell the truth.

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