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3DModelerMan

References to other games in an XBox Live Arcade XNA game

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Is it allowed to reference other games in one of your own if you plan to sell it? For example, I want to make a game that's kind of a spoof of other ones. If my character was to come across a purple hilted sword in a pedestal, and say "Huh, this looks strangely familiar". Would that be okay? Or if there were blocks with "?" on them?

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[quote name='3DModelerMan' timestamp='1317647595' post='4868544']
Is it allowed to reference other games in one of your own if you plan to sell it? For example, I want to make a game that's kind of a spoof of other ones. If my character was to come across a purple hilted sword in a pedestal, and say "Huh, this looks strangely familiar". Would that be okay? Or if there were blocks with "?" on them?
[/quote]

The answer is "maybe".

You might be okay, you might not. That is grey area. That means it is something decided by the courts on a case-by-case basis.

You might not be noticed. Or they might notice and ignore you. Or they might notice and take action. If the property owner does take action, what are you going to do when you get a Cease and Desist order? Are you going to take it into a lawsuit and fight it in the courts because you think you are right, or are you going to stop?

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"It depends." The sword probably wouldn't make the IP owner want to take action against you, but drawing attention to it might.
The block with a question mark on it probably wouldn't make the IP owner want to take action against you, unless you do it using pixel-for-pixel art, and make it behave exactly the way the original block acts, and also incorporate a number of other items from the same IP owner's games.

You asked "is it allowed if I" -- that's the wrong question. The right question is "might the IP owner take action against me if I"

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Spoofs are not ilegal. In fact I think the law says you can spoof anything you want. I know for a fact that celerbies are not allowed to sue someone for making spoofs based off them. As long as its clearly a joke I don't think they can do anything. To be safe do not copy anything exalty. Make everything a "likeness" of the object and give it a parody name. Also don't mention games by name because then they can get you for product placment charges. And most of all do not copy the games companies logo. They can defanitly get you for that. You can make fun of other games plot but don't have your charactor "follow" the plot. Basicly don't copy the game itself.

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[quote name='Discount_Flunky' timestamp='1317655988' post='4868582']
1) Spoofs are not ilegal. In fact I think the law says you can spoof anything you want.
2) I know for a fact that celerbies are not allowed to sue someone for making spoofs based off them.
3) As long as its clearly a joke I don't think they can do anything.
4) To be safe do not copy anything exalty. Make everything a "likeness" of the object and give it a parody name.
5) You can make fun of other games plot but don't have your charactor "follow" the plot.
[/quote]
Bad advice.


Even if you are legally in the right, you still may face a lawsuit. It can cost a fortune to defend such a suit, even if your use is perfectly legal. Are you prepared to mortgage your home or go into six-figure debt to fight such a fight? If no, then don't do it.


1) There are very strict guides that fall entirely within the court's judgement. The line between "parody" and "defamation", or between "parody" and "derivative work" is sometimes very thin. Only the courts get to make that determination.

2) The thing that you "know for a fact" is quite wrong. Many celebrities take legal action against those who use their names or likeness, even in parody. They are very much within their rights to sue. The same is true for businesses who sue when their names, products, or other intellectual property is used. In many cases they actually [b]must[/b] sue in order to protect their rights; if they knew about it and did not sue it could dilute their protections.

3) Something that is "clearly a joke" to one person may be "infringement" to another. That type of thing has been taken to courts many times, often ending very badly for the infringer.

4) A "likeness" is exactly what the law covers. If the object is at all similar (in the opinion of the court, not you) then it could be infringing.

5) You don't need to follow their plots exactly. Having a sufficient similarity to their world, to their objects, or to their characters can be a violation of IP rights. The original creator has the rights to make derivative works, and that includes incorporating the items in other games.


Claiming parody is an affirmative defense. That is, you can easily be sued. When you get to court, your claiming it is a parody means that you did knowingly infringe, but that your parody is a permitted exception under the law. If the judge doesn't agree that it fits the narrow definition of parody then you have very little recourse.

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[quote name='frob' timestamp='1317657621' post='4868590']
[quote name='Discount_Flunky' timestamp='1317655988' post='4868582']
1) Spoofs are not ilegal. In fact I think the law says you can spoof anything you want.
2) I know for a fact that celerbies are not allowed to sue someone for making spoofs based off them.
3) As long as its clearly a joke I don't think they can do anything.
4) To be safe do not copy anything exalty. Make everything a "likeness" of the object and give it a parody name.
5) You can make fun of other games plot but don't have your charactor "follow" the plot.
[/quote]
Bad advice.


Even if you are legally in the right, you still may face a lawsuit. It can cost a fortune to defend such a suit, even if your use is perfectly legal. Are you prepared to mortgage your home or go into six-figure debt to fight such a fight? If no, then don't do it.


1) There are very strict guides that fall entirely within the court's judgement. The line between "parody" and "defamation", or between "parody" and "derivative work" is sometimes very thin. Only the courts get to make that determination.

2) The thing that you "know for a fact" is quite wrong. Many celebrities take legal action against those who use their names or likeness, even in parody. They are very much within their rights to sue. The same is true for businesses who sue when their names, products, or other intellectual property is used. In many cases they actually [b]must[/b] sue in order to protect their rights; if they knew about it and did not sue it could dilute their protections.

3) Something that is "clearly a joke" to one person may be "infringement" to another. That type of thing has been taken to courts many times, often ending very badly for the infringer.

4) A "likeness" is exactly what the law covers. If the object is at all similar (in the opinion of the court, not you) then it could be infringing.

5) You don't need to follow their plots exactly. Having a sufficient similarity to their world, to their objects, or to their characters can be a violation of IP rights. The original creator has the rights to make derivative works, and that includes incorporating the items in other games.


Claiming parody is an affirmative defense. That is, you can easily be sued. When you get to court, your claiming it is a parody means that you did knowingly infringe, but that your parody is a permitted exception under the law. If the judge doesn't agree that it fits the narrow definition of parody then you have very little recourse.
[/quote]




What if you were to E-Mail the IP owner? Would it be unrealistic to assume that I could get written permission?


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[quote name='3DModelerMan' timestamp='1317678933' post='4868723']

What if you were to E-Mail the IP owner? Would it be unrealistic to assume that I could get written permission?

[/quote]

What about it?

Of course you can ask! You didn't mention that at all in your post, you simply talked about potential IP infringement.


If they are a tiny shop there is a non-zero chance they would just let it slide rather than requiring payment.

If they are a major shop or publisher they are much less likely to go for it without some sort of licensing agreement, usually involving significant amounts of real money.

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Frob is technically correct, someone can sue you over almost anything. It can be prohibitively expensive (in time and money) to mount a legal defence rather than cease and desist.

However, in the real world you will be facing mostly rational legal entities. In particular, most companies cannot financially afford to behave less than rationally.

You are unlikely to be the target of a frivolous lawsuit for an honest parody by a rational adversary. If your opponent is not rational, the chances of a frivolous lawsuit are about the same whether you include the parody or not.

That said, if you want to be sure, get the advice if a lawyer.

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[quote name='rip-off' timestamp='1317688502' post='4868767']
You are unlikely to be the target of a frivolous lawsuit for an honest parody by a rational adversary. If your opponent is not rational, the chances of a frivolous lawsuit are about the same whether you include the parody or not.

That said, if you want to be sure, get the advice if a lawyer.
[/quote]

Assuming the OP is creating a game, and assuming he wants the game to become successful and widely deployed, when the product reaches a large enough size it will (eventually) attract the attention of the IP owner.

If you are thinking small, you have no assets and resources, and you aren't planning on a big release to anywhere like XBLA, and probably only your few friends will ever know about it, then rip-off is right that you aren't yet worth the resources. Eventually you may become worth the resources, and you don't get much advance notice to when you have crossed that line.

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No, my point wasn't that small fry aren't worth the resources to pursue. I never made any reference to the size of the audience or whether the game would attract the attention of the IP owner. These are irrelevant in legal terms. My point was that a "real" parody is not worth pursuing seriously. If I were [i]really[/i] parodying your game, would you actually sue me? You might threaten to sue, sure. I don't think you'd actually take me to court because you would lose.

Your first post seemed to say "you could be sued, is it worth it"? My response is that [u]anyone[/u] can sue you for [u]almost anything[/u], so that is a weak reason not to do something. The real issue is to understand the risk. My point about rational entities is aimed at finding this true risk.

This thread is quite different from 95% of similar threads here, in which the OP wants to outright copy a game. Parody is perfectly protected. I don't think it is right or fair to discourage people from making parodies. They are not mere vessels through which copyright can be evaded, they can be creatively brilliant in their own right.

My advice to the OP is - understand what parody means, legally. If you expect even a small audience, or you want to sell it, definitely get a lawyer for some advice to be sure your planned game will be able to use a [i]fair use[/i] defence. You do not need a licensing agreement to make a parody, you do not need permission at all.

Then it is up to you. Someone could still threaten you, but you have enough information to try call their bluff, if you want. If your lawyer says your game is a parody under fair use, the chances are the legal department in any company will come to the same conclusion, and will not pursue through the courts. Risk is a two player game* - this was my point about rational legal entities.

* [size="1"][i]Legal risk[/i], that is, . [i]Risk[/i], the board game, is a little different I believe =][/size]

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[quote name='rip-off' timestamp='1317717273' post='4868901']
No, my point wasn't that small fry aren't worth the resources to pursue. I never made any reference to the size of the audience or whether the game would attract the attention of the IP owner. These are irrelevant in legal terms. My point was that a "real" parody is not worth pursuing seriously. If I were [i]really[/i] parodying your game, would you actually sue me? You might threaten to sue, sure. I don't think you'd actually take me to court because you would lose.

Your first post seemed to say "you could be sued, is it worth it"? My response is that [u]anyone[/u] can sue you for [u]almost anything[/u], so that is a weak reason not to do something. The real issue is to understand the risk. My point about rational entities is aimed at finding this true risk.

This thread is quite different from 95% of similar threads here, in which the OP wants to outright copy a game. Parody is perfectly protected. I don't think it is right or fair to discourage people from making parodies. They are not mere vessels through which copyright can be evaded, they can be creatively brilliant in their own right.

My advice to the OP is - understand what parody means, legally. If you expect even a small audience, or you want to sell it, definitely get a lawyer for some advice to be sure your planned game will be able to use a [i]fair use[/i] defence. You do not need a licensing agreement to make a parody, you do not need permission at all.

Then it is up to you. Someone could still threaten you, but you have enough information to try call their bluff, if you want. If your lawyer says your game is a parody under fair use, the chances are the legal department in any company will come to the same conclusion, and will not pursue through the courts. Risk is a two player game* - this was my point about rational legal entities.

* [size="1"][i]Legal risk[/i], that is, . [i]Risk[/i], the board game, is a little different I believe =][/size]
[/quote]




Thanks for the replies. I understand a lot better now. I think I'll probably hire a lawyer before I start the game and find out exactly what would be a good idea like you suggested. I should probably also pay a little more attention to how they changed stuff in Spaceballs.


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This is a matter of both principle and risk, and I tend to agree with rip-off over frob here (though they're both right, of course).

If you're making a genuine parody, and really making obvious jokes about this stuff (never "playing it straight"), that is supposed to be protected under fair-use. It is a fine line, though- for example Penny Arcade's "American Mcgee's Strawberry Shortcake"- a violation because it was parodying American Mcgee (OK) but using Strawberry Shortcake to do it (Arguably not OK, since Strawberry Shortcake wasn't the real subject of the parody). Due to complications like this, you should at least study the law if you don't consult a lawyer. Particularly important is case law to establish precedent for your use within the jurisdiction in which that the lawsuit would occur- courts [i]usually[/i] follow precedent (unless the issue is political and the judges are corrupt, as in certain [url="http://www.ca9.uscourts.gov/datastore/opinions/2010/03/11/05-17257.pdf"]cases[/url]); if you can show an example of another suit where somebody did more or less the same thing you're doing and the court ruled in their favor, you'll be fairly safe.

Yes, they could still sue you, but a company you've never heard of could also sue you for infringing IP you've never seen before because you accidentally created a character or item that (by pure dumb luck) looked kind of like something they made ten years ago.

On principle, the argument could be made that we shouldn't kowtow to copyright holders and give up rights that we should legitimately have, and I tend to agree.

But the reality is that copyright holders push around weight frequently, and bully smaller companies (and even media) into licensing their property or not publishing negative critical articles about it for threat of lawsuits. Indeed, copyright itself, despite the intention of limitations, does inhibit freedom of speech by vice of mere legal bullying. You should have some protection in case the feces hits the flabellum.


Whether you make a parody, or you accidentally make something that resembles another, either could cost you extremely large amounts of money, and both have legitimate defenses. Such is the nature of our legal system to favor the absurdly rich.

Large companies, for their part, frequently violate copyright and effectively ignore or dismiss most suits against them, or they settle out of court in the way of, "We will make sure that this lawsuit will be so expensive it will bankrupt you, and you'll never see a penny. Or, you can have this shiny nickel now, and we won't break your kneecaps."

Law is supposed to be fair, but unfortunately it doesn't even approach fairness on the mean. You should be safe... but you aren't.

But there is a legal mechanism that many people seem to have missed that can keep you out of the poor house if your company makes a mistake (or doesn't make a mistake, but gets punished for it anyway): Incorporate.

Form a legal entity for your business. Yes, you may pay more tax on capital gains, but it's a form of insurance. Your business could go bottom up, but there are some safeguards there to keep you from losing the shirt off your back. Yeah, there are always ways to get in trouble, but if you're serious about doing this and making money, it's a smart bit of insurance that distances you a little from financial threats. Criminal culpability still exists, but it is much less likely to threaten you due to the differences of burden of proof (innocent until proven guilty, instead of the preponderance of evidence).

The only other real defense is to simply have no assets to lose.

Getting insurance might not be a bad idea either, but for a small project that's probably going to be prohibitively expensive.

I hope that helps!

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