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Lately I've been working on my first 3D shooter game and I've been discussing it with some friends online. Some like the idea, others just thought it was funny. The game idea is actually taken from 2 other games, Aliens versus Predator and Quake. The name of the game is called "Aliens versus Quake". One of my friends said that I might run into some legal issues with creating a game such as this. I didn't think it would be a big deal since I plan to give proper credit to the respectful owners of each franchise and keep the game free and open source. There was a person out there who did a similar project with Streets of Rage, called the Streets of Rage Remake. I personally don't think that it would create legal problems with id Software and Fox Interactive as long as I give credit where credit is due, but to be on the safe side, I would like to ask the experts on gamedev.net. Basically I wanted this to be a nice little portfolio project, but would it be possible to submit such a game to fileplanet? Thanks.

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It's a bad idea. Don't do it.

Even if you escape notice for a time, what you would be doing would indeed infringe upon the IP of big companies. Fox in particular is not known for it's magnanimous attitude toward small projects, two words: Alien Quake.

... ok, Alien Quake (if I've got that right) was an Aliens-themed mod for Quake that got totally shut down by Fox - 10 years ago. The precedent is thoroughly set.

If you get anywhere at all with this, it's not a matter of if, it's a matter of when. The whole time working on it you'd have this sword of lawyer-smackdown hanging over your head, and when it drops you've got no portfolio work to show, just a lot of wasted time.


Use an original idea. They're really more fun anyway.

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It's so much easier to use your own IP anyways. Because nothing you do will be seen as inauthentic.

Get the quake2 or 3 source, make your own levels, and then ask for help on polycount.com to get the alien and soldier models you'll need. By Alien, I mean generic aliens, or ones of your own design. People around there are always looking to help on on stuff like that, as a lot of their models end up just being rendered and posted as a jpeg, and never going to any real use.

Then throw it up and let people play it.

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Original post by blueshogun96
One of my friends said that I might run into some legal issues with creating a game such as this. I didn't think it would be a big deal since I plan to give proper credit to the respectful owners of each franchise and keep the game free and open source.

Listen to your friend. It's a common mistake to think that you won't have problems if you don't make money of it and if you credit the IP owners. This is wrong. It doesn't change anything, it's still IP violation. The original IP holders can - and in the case of id and Fox will ! - sue you over something like this. The litigation and possible damage fees can be astronomical.

So don't do it. Be creative and do something on your own.

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Plagiarism in games can be hilariously obvious but the consequences aren't as amusing.

I know that you aren't going to these extremes, but be careful about infringing copyright.

If you're submitting your work as part of a portfolio, don't claim it as your own unless it actually is; this is common sense, legal issues yay or nay.

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Original post by blueshogun96
I didn't think it would be a big deal since I plan to give proper credit to the respectful owners of each franchise and keep the game free and open source. There was a person out there who did a similar project with Streets of Rage, called the Streets of Rage Remake. I personally don't think that it would create legal problems with id Software and Fox Interactive as long as I give credit where credit is due, but to be on the safe side, I would like to ask the experts on gamedev.net. Basically I wanted this to be a nice little portfolio project, but would it be possible to submit such a game to fileplanet? Thanks.

As everyone else has already said this is a bad idea. Fox are one of the meanest companies there are when it comes to defending their IP.

It makes no difference if the game is free or not. It is still infringement of their IP and if your game is in any way successful there would be a good chance they will come after you. Giving credit would just make things worse. All that does is admit that you know you are infringing someone else's IP.

As for a portfolio piece? Probably not good to be sending game developers a portfolio which shows you're happy to knock off other game developers IP.

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Well, since everyone agrees, I will semi-sorta-partly disagree to provide an alternate viewpoint.

BTW, my suggestion only works/applies because those three names are common words (alien, predator and quake). If you want to make a game called "Kleenex versus Ford" the following does not apply.

You see where I am going? As long as your "alien" doesn't look exactly like the alien in "the Alien movies", you have no problems whatsoever. And as long as your "predator" is simply some kind of actual predator (alien or otherwise), you have no problems whatsoever. And similarly, if you have earth/planet quakes or characters "quake in their boots" or the game has some content that has something to do with "quake", you are safe.

First rule... do not capitalize Alien or Predator or Quake unless they begin a sentence or are a title. Be smart and make your text style largely or exclusively lower-case to help avoid any "confusion".

And be smart; don't lift logos or other trademark items from those games, or any games.

Now listen up. The terms "alien" and "predator" and "quake" have been around for thousands of years, as have the referents. Just because some big company makes a movie about an alien and a predator does NOT prohibit you or anyone else from making additional media about such - as long as your alien/predator/etc are not exact copies.

Think about it. If the rules you fear existed at all, THEY could never have made the Alien and Predator movies, right? They have zero rights to anything but their EXACT artwork, logos and implementation - or a BLATANT copy/rip-off. Also, they do not gain any special rights just because they are big companies.

So I agree with everyone else about making a literal rip-off, but you might be very surprised how close you can adopt similar elements. Yours can easily be so similar that people totally notice the similarity to their Alien and Predator creatures without violating any laws or regulations. The fact is, if you were to do some thorough research, you would find many aliens and predators created by others years before those movies were made, yet the people making the special effects for those movies did not bother to do any special research to avoid making their aliens "too similar". In fact, they probably looked at plenty of alien creatures made by others in the past, and lifted the elements they most liked, and combined them into their unique creatures. Believe me, they only own their exact implementations, and since they were stupid enough to choose totally generic words, they cannot even stop others from making movies and games called "alien" or "predator" or "quake". You will find dozens of books with the same titles, and no law suit has a chance unless the content is stolen exactly (or so close to exactly that you need to squint to see the difference). BTW, ever hear the term "parody"? The entire point of that entire genre is to make near-enough rip-offs that "everyone can tell", yet the slight differences are entirely sufficient to keep them out of legal trouble.

Do what you wish, but no need to quake in your boots in fear of those alien predator lawyers!

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Original post by iceware
Well, since everyone agrees, I will semi-sorta-partly disagree to provide an alternate viewpoint.

There's no "alternate viewpoint". There's people who understand IP law and people who do not. Your brief aside about "parody" is sufficient to demonstrate that you're in the latter category. Which is fine, of course; most people, even most content creators, don't need to know IP law. But don't pretend you do.

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Original post by Sneftel
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Original post by iceware
Well, since everyone agrees, I will semi-sorta-partly disagree to provide an alternate viewpoint.
There's no "alternate viewpoint". There's people who understand IP law and people who do not. Your brief aside about "parody" is sufficient to demonstrate that you're in the latter category. Which is fine, of course; most people, even most content creators, don't need to know IP law. But don't pretend you do.
Some people understand IP law, and some people do not. Which are you? You do not say. If you are knowledgeable, we would enjoy hearing any clear, coherent information you can provide about this topic. But snide comments provide no information.

I am capable of drawing reasonable inferences from large numbers of cases, which is what I did. As co-lead developer of two commerically released games, I was also "in the room" when IP lawyers discussed these issues. Those meetings did not produce any contradictions from the inferences I expressed, but being in meetings with IP lawyers does not make me an "expert" either. If I am wrong about something, and you know it, I certainly will enjoy being set straight, as I always do.

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Original post by iceware
BTW, my suggestion only works/applies because those three names are common words (alien, predator and quake).

You see where I am going? As long as your "alien" doesn't look exactly like the alien in "the Alien movies", you have no problems whatsoever. And as long as your "predator" is simply some kind of actual predator (alien or otherwise), you have no problems whatsoever.

This is incorrect and dangerous on a multitude of levels.
First the use of Alien, Quake or Predator in the title of a video game will draw the attention of companies like Fox. It doesn't even matter if they are right or wrong - even if the OP would win a court case he isn't going to have the hundreds of thousands of dollars necessary to fight so all a company will need to do is send a cease and desist letter and his game will end up in the dustbin.
Second - ANY likeness to an Alien(tm) used in conjunction with the word Alien in the title of a game could result in a suit for "passing off". The only answer to the question "how different do I have to make my character from Mario to avoid being sued?" is "100% different". Again it doesn't matter if the film company will win such a suit or not because the OP will almost certainly go bust if they choose to try and fight it.
Thirdly - ignoring all the legal issues its a dumb idea because you don't get respect for doing knock offs. If the game is bad people will dismiss it as a cheap clone and if it is good that will just encourage the film companies to come after you. If you are going to invest the effort necessary to make a game then at least do something worthwhile.
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Also, they do not gain any special rights just because they are big companies.
They don't need rights, they have money.

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Original post by Obscure
The only answer to the question "how different do I have to make my character from Mario to avoid being sued?" is "100% different".


Define "100% different". Mario is a human, I can't make another human character? There is no such thing as 100% different. There are always going to be similarities. The best you can hope for is different enough that no sane person will see a similarity. And yet you're still going to be surprised at how many people will see one with things you never even heard of.

Be creative and original, but don't be paranoid either.

[Edited by - Codexus on December 8, 2008 10:52:14 AM]

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Original post by iceware
Some people understand IP law, and some people do not. Which are you? You do not say. If you are knowledgeable, we would enjoy hearing any clear, coherent information you can provide about this topic. But snide comments provide no information.
Hey, I didn't say that those groups encompassed everything. I'm in the middle: I understand a small amount of IP law, and more importantly, I know where the gaps in my knowledge are. Knowledge of the gaps, I think, is the more important part.

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I am capable of drawing reasonable inferences from large numbers of cases, which is what I did.

That's what I figured. But you drew them incorrectly. The "slight differences" you mentioned, for instance, are neither necessary nor sufficient for a work to be considered parody; see the text of the fair use exemption.

There's this surprisingly common thing computer geeks do where they assume that common law is riddled with loopholes, that it's possible to do whatever you want as long as you say the proper mumbo-jumbo (which must involve the words "whereby" and "aforementioned"). I guess this comes from working with machines that are deterministic and straightforward. Judges are not. They think for themselves. They understand and apply the spirit of the law.

Which means that the big problem is not so much spouting off about something you don't really know, as doing so convincingly. Someone who knows even less than you about the law, someone casting about for loopholes with phrases like "I didn't think it would be a big deal since I plan to give proper credit to the respectful owners of each franchise and keep the game free and open source" is going to latch on to anything real-sounding you toss at him, and believe in it through the weeks or months of development, right down to the day where he gets that certified letter in the mail and all that time he spent goes down the shitter.

This is not a helpful or a kind thing to do to someone.

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One thing that's important to bear in mind-- unless you can afford to pay an attorney's hourly rate for any possible legal repercussions that may come about, it is ALWAYS better to err on the side of caution. That is what Obscure, Sneftel, et al are getting at, and it's why typically any suggestions given by frob, sloper or myself are extremely paranoid. The suggestions are given under the presumption that most independent game developers putting out small pet projects for their portfolios cannot afford legal fees and don't know enough about IP law to make wise judgment calls on IP issues. Otherwise they wouldn't come here for help.

I understand wanting to play devil's advocate, iceware. But please bear in mind that your IP lawyers want their fees. Creating any kind of game or product even loosely based on someone else's IP creates the risk of litigation, which is good for your attorneys, but typically bad for you. Your situation was probably different, and they may have been speaking in the hypothetical, or they may have been making these assertions based on the standards set by your E&O Insurance provider. Whatever the case, the context was probably very different than what we're seeing here, not the least because you were obviously willing and able to hire an attorney to handle these matters.

Your analysis of trademark law misses the boat. The term "Quake", when used to refer to a computer game, is understood by most consumers of game products to mean the popular game series. That's the basis of a trademark-- a mark that identifies a particular good in commerce. "Alien", "Predator", and "Quake" all identify specific goods in commerce, namely entertainment products. I should also mention that a quick search at the USPTO shows an active registered mark for Alien v. Predator. You're trying to make an argument that the terms are descriptive as opposed to distinctive, and therefore not entitled to trademark protection, but that's a) usually wrong; and b)something that's only affirmatively determined at trial. Same with whether or not a parody constitutes fair use. Yeah, you may win at the end of the day, but at what cost?

You always create a risk when you put out a product that closely resembles or directly uses IP from another popular product. What a lawyers tells you in confidence once they know all facets of the situation and have taken the time to do a risk analysis is not the same advice that you'll get from a forum where lots of people go to get help.

[Edited by - madelelaw on December 8, 2008 2:02:58 PM]

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Original post by Codexus
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Original post by Obscure
The only answer to the question "how different do I have to make my character from Mario to avoid being sued?" is "100% different".


Define "100% different". Mario is a human, I can't make another human character? There is no such thing as 100% different. There are always going to be similarities. The best you can hope for is different enough that no sane person will see a similarity. And yet you're still going to be surprised at how many people will see one with things you never even heard of.

Be creative and original, but don't be paranoid either.
The point these guys are trying to make is what will you do if you try to make it "different enough" and then get a threatening letter from Fox? Will you really risk a court case where you will be forced to hire a lawyer and pay thousands or tens of thousands of dollars? Or would you be scared off by their letter?

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Many people are far too afraid of the "big bad wolf" - which is precisely what the big bad wolf wants. Why? So he can get *far* more than he deserves (both ethically and legally)! This phenomenon is so far out of hand in the world today, people have literally become afraid of big fat zeros. Then others repeat common wisdom like "when in doubt, play it safe". Wow, what brilliant wisdom. The problem is, wisdom like that just makes people feel they might be taking a risk to create ANY [male] [pudgy] cartoon-style human character for their video game, because somebody might think it is "the" mario!

Sheesh! But why do I care? My entire life is an endless series of creative endeavors, so I care about creative endeavors (and not just mine). I do not want anyone to "get in trouble". But I don't want potentially creative folks to be afraid to express their creative ideas and expressions either. Sadly, I see advice that reasonable people could actually take to mean "I better not make any game that contains an alien or carries a title that contains the word alien within it". That is simply absurd. I hope posters did not intend their advice to be taken that narrowly and literally, but it appears some did.

There is a massive difference between "get the law straight" and "be terrified of big fat rich bullies (like Fox) and therefore stay light-years away from anything that even the most paranoid person might imagine is an issue". These are approximately opposite appeals. One says "understand what is legal", while the other says "do not understand what is legal" (because "no need to know, since you limit your options so extremely that no person could even imagine any issue existed").

My point of view is this. I do not want creative people to allow bullies (or sincere people who have been intimidated by vague BS from bullies) to thwart their creativity. I do not advise people to break the law, and I did not. If my comments were not clear enough, the poster could (and should) ask me to state the basis for my comments (each comment might have a different basis), and we can continue from there. I assume anyone who gets advice or information from anyone on these forums, understands what they read are honest replies (which mine are), not supreme court decisions. Fortunately the forum format lets people grill repliers and judge the plausibility of their answers. But nobody believes they get legally binding statements here. OTOH, in my few encounters with lawyers over the years, *they* have been wrong and I have been right, so I trust them NOT. Some of these errors came from lawyers working on the same side as me, so I cringe when I hear people repeat self-serving soundbites that imply we can trust and depend upon opinions attorneys utter.

To be somewhat more specific. I will guarantee everyone here they can make a game about aliens from outer space attacking Brooklyn, and title your game "Alien Predators Attack Brooklyn" (even with the first letter of each word capitalized), and you will not get in trouble --- unless your "aliens" and "predators" look very similar to those in those movies (and your work contains other overt/obvious/suspicious similarities to boot) And I do NOT need to be a lawyer to figure that out! A large number of first hand observations of reality is perfectly sufficient to infer this is legal. What observations? Thousands of observations of thousands of games, books and films that that contain alien creatures and contain the word "alien" in the title. I can say this confidently because I am capable of first-hand observations and rational thought, and because the rational basis of IP law is obvious.

The following are some observations about being afraid of lawyers, and about the expense of legal battles and law suits. You need not copy my approach, obviously, but I have practiced what I preach here 3 or 4 times, and never regretted it. First, do nothing unethical or illegal (they are sometimes very different, sadly), but then, if some bully/lawyer/predator threatens you --- and they are famous for doing that --- I suggest you totally ignore them. Most important, do not spend a penny, do not hire a lawyer, do not write a letter, just ignore them. And whatever you do, spend *zero* seconds worrying about them and their threats. They are absolute *masters* at getting you to do what they *cannot* make you do legally, but *can* fake you into doing to yourself simply by threatening you. If you take the advice others have given here, you will immediately spend yourself into the poorhouse while your lawyer gets rich (and their lawyer gets a mere $250~$500 for writing the threatening letter to you). See how that works? They are wrong, you are right. But they spend $0 to $500, and you spend yourself into the poorhouse or worry yourself into an early grave. They are running a classic "protection racket" - nothing more, nothing less.

Yes, I did nothing. And what happened? Nothing. What do I say when their lawyer calls after I ignore endless letters? Depends, though after seeing how well "nothing" worked the first time, I decided to answer with some variation of the following: "I am right and you are wrong. But I know your game; you want me to waste my time, effort and attention on your stupid threat, and waste money on lawyers. Well, I'm not spending one second on your foolish game after I hang up this phone, and I will not waste one penny on lawyers either. Goodbye. Click". Every time, that was been the end of the story. But I will repeat again; start out by being ethical and legal. Then utterly ignore the bullies - or you *are* their prey. It is *they* who are the predators. But they are just special effects, not real. They convince you to harm yourself! Don't fall for their silly Jedi mind tricks! What would I do if they were ever stupid enough to push their luck all the way to court? I would appear without a lawyer and let them have it right between the eyes - with simple facts BTW, not fancy talk or tricks or expensive suits. I refuse to let them own me.

When I read advice like, "it doesn't matter whether they are right or wrong, it only matters whether they might say !boo!", I know my concerns are justified. That advice also proves how far out of hand the modern world has gotten in favor of bully-predators. Listen to what people in this forum are saying! They are (unknowingly, I hope) repeating the predators self-serving sounbites!

Yes, it really *does* annoy me when good people are harmed and held back by jerks and bullies. Many honest people have been faked into supporting the rotten people in this world, some by convincing creative folks to "give in". That makes me sad. But each of you knows yourself better than I do. If you are (you must be honest with yourself) the kind of "weak minded fool that falls prey to Jedi mind tricks", then go ahead and play it super-duper-ultra-hyper-crazy safe. I refuse to play life safe when it helps those bullies thwart the dreams and productive juices of creative folks. I am no weak minded fool.

None of the above addresses what to do if - after significant observation of similar situations and sufficient reflection - you cannot "figure it out". Then I'd suggest you spend a couple days in the library (not on this forum). If you have significant wealth, you might want to follow up with real IP lawyers if you must, though I would not trust them myself. If I couldn't resolve the issue from my own research, then I would back off and find something different. If you are worrying about crossing a line that you see other [major] books/games/movies/media have crossed many times - you can be fairly certain you are safe AFTER you check to make sure those examples did not get special permission from the owners to "step over the line" (which makes it okay). The granting of permission is almost always stated in fine print somewhere or other (read all credits carefully in slow motion).

I do not give legal advice, whatever that means. That should be obvious. But here is my personal advice, from personal experience, about legal advice. My advice is, "legal advice is not worth much". If lawyers and judges give such clear, reliable opinions, then why are endless legal battles waged in this country? For that matter, why do lawyers always give "opinions", not advice? One answer is, many lawyers are lazy, many lawyers are corrupt, many lawyers are careless, many lawyers are incompetent, and many lawyers are self-serving money grubbers who prey on the misfortunes of others (starting with their own clients). And as I pointed out above, many of them spend most of their time creating misfortunes for innocent folks, because your misfortune (created by them or not) is what generates their fortunes.

To those who disagree with me, you are welcome to your opinions. I feel sorry for you, because the predators of the world convinced many of you to live a smaller, less rich life than you might otherwise have enjoyed. You know the predators have held people down when the most common advice to questions like these is, "stay a million miles away from *anything* that might make them wonder whether they should bother to say !boo! to you". So yes, I AM saying that I personally I do not "ALWAYS err on the side of caution" (as was advised), and I do not advise anyone else live their life "always on the side of caution".

I do not suggest doing "knock offs" either. Fact is, everything I do is extremely original, and I enjoy it that way. OTOH, I have watched a few parodies made me laugh, and were very enjoyable. So I refuse to advise someone who appreciates that form of expression (once or often in a career/lifetime) to "ignore your passion, do something else". The gap between an actual "unethical and/or illegal ripoff" and what some people here suggest (in the name of fear) is enormous. Exactly where is the dotted line between them? No discussion of that topic is possible while everyone screams "fire" in this theatre. Maybe the original poster actually wanted actual information, not third-hand soundbites from bully lawyers.

By all means, lock yourself in a cage for life to humor dirty rotten bullies who hate you and play with you like a puppet --- if that is your choice. Only you can decide that for yourself. Unlike many others here, I will not make those choices for you. I made my choice long ago, I never regretted it, and none of those bullies or lawyers bothered to take me to court, or follow through on any of their bogus threats. Why? Because they knew that I knew they were liars playing a dishonest game of intimidation (and "get away with whatever they can"). I think it helped when I made it perfectly clear I understood the game they were playing, and dispassionately but firmly refused to play. I refuse to help them enslave me, or sanction their malicious evil.


[Edited by - iceware on December 9, 2008 3:00:40 AM]

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Now listen up. The terms "alien" and "predator" and "quake" have been around for thousands of years, as have the referents. Just because some big company makes a movie about an alien and a predator does NOT prohibit you or anyone else from making additional media about such - as long as your alien/predator/etc are not exact copies.

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Some people understand IP law, and some people do not.

The latter is right, the former is dangerous misinformation. Reality is much more severe, you can be sued for 7-figure compensations even if you do not use a registered trade mark, but only produce something that looks vaguely similar or has vaguely a similar plot. Dreamworks and Warner Bros. learned this lession. Do you think you understand IP law better than them?

Regarding intellectual rights on common words, make yourself familiar with the middle english word "hobbit" which existed for centuries before a man named Tolkien was born. Then look up Tolkien vs. TSR and ask yourself why TSR had to change all references to "halfling".

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Original post by iceware
Sadly, I see advice that reasonable people could actually take to mean "I better not make any game that contains an alien or carries a title that contains the word alien within it".


Are you reading the same OP as everyone else? The question was, "can I combine Aliens vs. Predator and Quake?" Your whole rant has nothing to do with the OP - you're talking about being afraid to use your own IP in your own games. The OP is about using the IP of AvP and Quake. The former is fine, the latter is not.

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Sayeth iceware:
Now listen up. The terms "alien" and "predator" and "quake" have been around for thousands of years, as have the referents. Just because some big company makes a movie about an alien and a predator does NOT prohibit you or anyone else from making additional media about such - as long as your alien/predator/etc are not exact copies.

IOW, as long as your alien, predator, or quake don't run afoul of copyright law (that's what you're saying).
But it's also important that you don't make a movie, game, or comic book whose title uses the words alien, predator, or quake in a manner that could run afoul of trademark law.
Certainly you can use the words alien, predator, and quake in the title of a work in such a way as not to cause a lawsuit. And certainly you can portray aliens, predators, and quakes in such a way as well. The fine distinctions that can help one determine where to draw the line are best learned through an in-depth consultation with a legal professional.

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Further proclaimeth iceware:
My advice is, "legal advice is not worth much".

Legal advice from a legal professional is worth a lot more than legal advice from you. You should refrain from giving further legal advice to hapless newbs.

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Original post by iceware
"I am right and you are wrong. But I know your game; you want me to waste my time, effort and attention on your stupid threat, and waste money on lawyers. Well, I'm not spending one second on your foolish game after I hang up this phone, and I will not waste one penny on lawyers either. Goodbye. Click".

Ask A Guy Who Knows A Little Bit About Dealing With These Lawyer Types

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> If lawyers and judges give such clear, reliable opinions,
> then why are endless legal battles waged in this country?

Same as engineering. You can't be certain of a result / outcome until it has been tried.

> To those who disagree with me, you are welcome to your opinions.

You are treating the topic as a "Can I" issue where it all boils down to a risk / reward calculation. If the calculation fails, then a big pile of money needs be payed. Odds are, it won't - or so this is what I read from your posts.

It should instead be regarded as a "Should I" issue, where risk / reward calculations are replaced by ethics. This industry's bread and butter is IP. Once people start believing there are no victims in copying / distributing someone else's IP (or parts thereof) - or worse, stop believing in the value of IP altogether - then the industry slips into oblivion. I don't believe this avenue restricts your creativity; it merely vectors it into uncharted territory where the odds of making something really outstanding are much better.

-cb


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Original post by cbenoi1
> If lawyers and judges give such clear, reliable opinions,
> then why are endless legal battles waged in this country?

Same as engineering. You can't be certain of a result / outcome until it has been tried.

> To those who disagree with me, you are welcome to your opinions.

You are treating the topic as a "Can I" issue where it all boils down to a risk / reward calculation. If the calculation fails, then a big pile of money needs be payed. Odds are, it won't - or so this is what I read from your posts.

It should instead be regarded as a "Should I" issue, where risk / reward calculations are replaced by ethics. This industry's bread and butter is IP. Once people start believing there are no victims in copying / distributing someone else's IP (or parts thereof) - or worse, stop believing in the value of IP altogether - then the industry slips into oblivion. I don't believe this avenue restricts your creativity; it merely vectors it into uncharted territory where the odds of making something really outstanding are much better.
-cb


Your reply is one of the more reasonable, even though I would say it is somewhat over-simplified. I am not sure why you ignored my repeated, repeated, repeated statements that my first rule is "do not violate ethics or legalities". Once you recognize I said that (repeatedly), the next question becomes "does my art/work gain enough by containing some degree of similarity to previous works". If not, obviously all of us would say "why bother?".

However, if someone has an idea that *does* greatly benefit from pushing the limits further than "super-duper-hyper-crazy safe sort of advice", a person could then try to become clearer about "where actually is the legal limit". Once the artist understands what is the legal limit to a modest degree of clarity (and makes sure he is on the safe side, or near it), his next question (according to me) is "how do I decide whether this will be worth it". That *is* a risk/reward calculation, like it or not. Notice that I always put that risk/reward calculation *after* estimates of "legal or not". Did you notice that? I understand it may be easy to ignore I say that, because "legal or not" consumes one sentence, and discussions of risk/reward can run into pages (and many hours (and/or many lawyer dollars) if you are serious).

So yes, what I discuss mostly in my posts is how to estimate risk/reward once you considered the necessary first elements, including "be legal". Even so, I was not flippant. I did not suggest everyone be as self-confident in their own analysis and judgement as me. In fact, I explicitly advised people they should not mess with bullies trying to indimidate them from doing legal work *unless* they are comfortable in that situation. I am today. It was not as easy the first time, even though I was certain I was right.

Since you seem like a reasonable person, I scratch my head when I read you attach certain ideas to me, including "there are no vicims in copying/distributing someones IP". Where did I imply that? In every case, the point *is* to attempt to identify where is the ethical and legal limit of their IP. That is my point, BTW, except the way I talk about it might be confusing because I am fighting against massively out-of-whack "common wisdom" about what do the owners actually own, really and legally. That is a difficult conversation for someone like me to have, because the vast majority of people do in fact parrot the propaganda sound-bites those lawyers paid by big fat bullies repeat endlessly. Most people are easily manipulated by Jedi mind tricks like this (the notion that propaganda and sound-bites issued by lawyers have some legal standing). Though in retrospect *everyone* knows that lawyers issue PR-lies-propaganda-soundbites on behalf of their selves/clients/positions (with no legal content whatsoever), many people do not slow down and reflect long enough to identify every Jedi mind trick and reject or discount them accordingly.

I suspect you and I pretty much agree about everything, if you bother to read carefully and consider what is my intent. Gads! My entire life has been one of creation! I have been a scientist, engineer and product developer since I was a kid, and have invented and developed literally hundreds of what you people would consider IP. To imagine that I advocate cheating myself is laughable! Sorry if I gave that impression, I certainly did not intend to. However, I will admit that I have spent vastly more time and effort on philosophical study and reflection than most people, which most certainly includes ethics (the basis for honest law). And my conclusions are not identical to "conventional wisdom" in some ways with regards to IP ethics. Interestingly, however, the IP in question here is on the "copyright" side of IP law, which I agree has a legitimate ethical basis. On the other hand, patent law is utterly unethical at root. Please understand that I say that even though the vast majority (and by far most valuable) of my IP falls on the patent side. Which is why I do not patent what I can, and when I sell designs to companies I explicitly include my refusal to patent (or back up their patents), which killed a few lucrative deals for me. I only say this to reveal that I take these issues seriously, even to the point of willingly refusing gains of hundreds of thousands of dollars (and potentially millions depending upon how those inventions played out).

Also note the original poster was asking himself the right questions, and was taking some reasonable steps, even though he did make one huge mistake (he seems to assume "giving credit" somehow gives him "permission", which is wrong). I had hoped that everyone could throw in their real knowledge and experiences to provide a rich information-experience rich environment for him to consider his project further. Instead, just about everyone repeated what I consider information-free propagana that benefits only bullies and lawyers, but thwarts creative individuals and endeavors. Thanks for one of the more honest and thoughtful responses.

PS to another comment from someone else: Yes, I read the original post, and I do believe he could have modified his directly slightly to be well within legality but not destroy what he wanted to achieve (perhaps). See my comments just above for more about that.

PS to another comment from someone else: Please make the distinction between "what is legal" and "a specific decision by someone to change his work to appease the desires of others". Now, I suspect the example "hobbit" would have been perfectly okay, no law suit would ever have been carried to conclusion (thoug possibly threatened). Please note! A decision by someone to NOT call his creatures "hobbit" does NOT constitute any vague (much less specific or binding) legal judgement as to the legality of the word "hobbit" in a work of art. And really folks, do you believe it is *legal* to copy the substance of hobbits (which is 99% of the point) but not legal to copy the ancient word "hobbit"? Think about it seriously. This is just one more example of how far out of whack the conventional wisdom about this issue has gotten. And I do not mean that as a negative comment about the poster - just the opposite! It makes my point that conventional understanding of this topic has gone over the deep end, even for reasonable, intelligent people.

PS: one reason some of you misunderstand certain of my comments is that I respond to several comments by several posters in one message. Perhaps I shouldn't do that (or perhaps this kind of PS closing) will avoid that confusion. I will try to figure out ways to make that aspect of my replies more clear in the future. Not sure why, but I implicitly everyone knows my replies answer many opinions stated by many previous posters. I find writing one large post easier because then I can explicitly relate the relevant ideas raised by multiple folks.

[Edited by - iceware on December 13, 2008 2:06:48 AM]

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Original post by iceware
PS to another comment from someone else: Please make the distinction between "what is legal" and "a specific decision by someone to change his work to appease the desires of others". Now, I suspect the example "hobbit" would have been perfectly okay, no law suit would ever have been carried to conclusion (thoug possibly threatened). Please note! A decision by someone to NOT call his creatures "hobbit" does NOT constitute any vague (much less specific or binding) legal judgement as to the legality of the word "hobbit" in a work of art. And really folks, do you believe it is *legal* to copy the substance of hobbits (which is 99% of the point) but not legal to copy the ancient word "hobbit"? Think about it seriously. This is just one more example of how far out of whack the conventional wisdom about this issue has gotten. And I do not mean that as a negative comment about the poster - just the opposite! It makes my point that conventional understanding of this topic has gone over the deep end, even for reasonable, intelligent people.


You're still talking about somthing totally different to what the OP is asking. The OP is not asking "can I make a game about aliens, with the word "alien" in the title?" the question is "can I take the Alien vs Predator IP, the Quake IP, and combine them, giving credit to the original owners?"

And on the topic of Hobbits, the word Hobbit is generally taken to be an invention of Tolkien. Though the topic is up for debate, it's certainly not the "ancient word" in common use as you seem to suggest - certainly the owner's of Tolkien's estate have a trademark on the word.

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Sayeth iceware:
The terms "alien" and "predator" and "quake" have been around for thousands of years, as have the referents. Just because some big company makes a movie about an alien and a predator does NOT prohibit you or anyone else from making additional media about such - as long as your alien/predator/etc are not exact copies.
IOW, as long as your alien, predator, or quake don't run afoul of copyright law (that's what you're saying). But it's also important that you don't make a movie, game, or comic book whose title uses the words alien, predator, or quake in a manner that could run afoul of trademark law.
Certainly you can use the words alien, predator, and quake in the title of a work in such a way as not to cause a lawsuit. And certainly you can portray aliens, predators, and quakes in such a way as well. The fine distinctions that can help one determine where to draw the line are best learned through an in-depth consultation with a legal professional.
Exactly, but many people were giving advice that "hapless newbs" might interpret in a way that sends them down totally boring paths/careers. Is that what you want? Are you also on the side of wanting no new entries into "your domain"? Why do so many people get bent into a pretzel when one person tries to help balance an otherwise one-sided (and amazingly simplistic) point of view?

Quote:
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Further proclaimeth iceware:
My advice is, "legal advice is not worth much".
Legal advice from a legal professional is worth a lot more than legal advice from you. You should refrain from giving further legal advice to hapless newbs.
You should refrain from purposely extracting selected partial quotes in order to misrepresent what I said. Which is *precisely* what you did. People are much better served by becoming as clear as possible about any issue *before* they visit a lawyer (called "doing your homework" and part of "due diligence"). Usually people can learn what they need without a lawyer, and when they cannot, they will then be in a position to ask better questions, understand the answers more thoroughly, and follow-up with important requests for clarification, elaboration and further questions immediately (not in another expensive meeting).

As I stated explicitly, and you purposely misrepresented, I gave personal advice not legal advice. Though I agree legal advice from a legal professional *should* be better than legal advice from me, but often their advice is worse (as people who later admitted after taking lawyer advice instead). But I only say that to reinforce my point that people are best served by being alert, observant, thoughtful, insightful and fundamentally engaged themselves, and by taking personal responsibility for their actions and decisions. That does not equal "never talk to an expert", but that does mean "often we will not need to, and when we *do* need to, we will be in a far better position to benefit from (and judge) their advice. I am quite certain that is a better policy than simply "pay big bucks and submit yourself unquestioningly to some expert". Often, honesty, careful research, and careful personal observation can save someone all or most expense, and all the insight gained is good "experience in their pocket". Finally, no lawyer, no matter how good, understands your needs/wants/desires/priorities as well as you do, and sometimes that matters more than a little. I would bet that if you cut and paste my entire opinion about being "personally engaged" in front of any *good* lawyer or expert, they would agree.

In the end, "I took the advice my attorney gave me" will not cancel the judgement against you, will not excuse you, and will not get you out of jail. The law is quite clear, each person is responsible for his own actions, and accepting advice from others (lawyers/experts/officals or otherwise) will not reduce judgements against you by one cent, or reduce your sentence by one day. Remember this when you decide how to act upon advice anyone else gives you. Take responsibility for yourself, observe for yourself, think for yourself, act for yourself. By all means, that may include deciding whether to pay a lawyer for his opinion, and deciding how to interpret and assess what he says. The bottom line is this. Each person is responsible for his own actions, ethically and legally. Therefore, a lawyer, expert, spouse, friend, talking-head-on-TV cannot be more than an opinion (or diabolical misleading scheme) for each of us to judge before we act. We are in the driver seat of our actions, we are responsible for our actions, and all this talk about "let someone else decide" is fundamentally backwards. By the sounds of this forum, individualism and responsibility are just about dead in the USSA, and have been replaced by elitism, authoritarianism and authority-worship. No wonder the USSA continues to spiral down the toilet of history. It turned its back on what made it great.

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