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Yet another copyright question

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So, what exactly do you violate when you make free fan made games about a certain character/franchise? I mean for example the super mario and sonic flash games that you can find over the internet. Should their authors be sued if they aren't selling their product but giving it for free, and also they don't harm the image of the franchise in any way ... Also, another example is the somewhat famous free PC game super mario forever, i don't think its author got sued. Any ideas?

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what exactly do you violate when you make free fan made games about a certain character/franchise?

Intellectual Property Law. Depends on what exactly is duplicated, how much, and how.
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Should their authors be sued if they aren't selling their product but giving it for free

That's up to the Copyright owner to decide.
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they don't harm the image of the franchise in any way

That appreciation is not yours to make but the Copyright owner's.
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i don't think its author got sued

Doesn't mean that he never will.

-cb

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IANAL, but if you use artwork, music and/or sounds from a pre-existing game, you violate copyright law, the music part is a bit tricky because if you make an interpretation of the song with your own band, you may own the copyright of that interpretation, but you don't own the authorship for the song which is also copyrighted.

If you implement a patented mechanism such as MP3 decoding, you violate patent law, usually this one is the least you have to be concerned about, but you should be aware of nevertheless.

Finally, and the one that applies to your question, if you use recognizable characters of which you don't own a copyright for but create all of your assets yourself (sort of fan art), you'll be violating trademark law.

In all cases, you're breaking the law even if you're not making money out of it and could get in trouble, though usually you'll get a polite cease and desist letter before a lawsuit. You may get nothing, but that may just mean you have not reached a level of attention that guarantees the legitimate owner of the copyright/patent/trademark taking notice rather than turning a blind eye.

In short: never assume what the reaction from the legitimate owner will be, the fact is, you'll be breaking the law.

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