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Lith

References To Other Games

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Hello.

Is it legal to add some sort of references to other games which i have no ownership of? For example, an easter egg that has a picture of a character from a game or an unlockable playable character that is from another game. Mabye some text that uses a phrase from another game.
What is the likelyhood that i will get sued? am i being paranoid?

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1. Is it legal to add some sort of references to other games which i have no ownership of?
2. For example, an easter egg that has a picture of a character from a game
3. Mabye some text that uses a phrase from another game.
4. What is the likelyhood that i will get sued?
5. am i being paranoid?

1. You can "refer to" another game, no problem.
2. Absolutely not. Read FAQ 61.
3. Depends on how much text, and how recognizable.
4. Nobody can say. It depends.
5. No. But just because I say you're not paranoid doesn't mean they're not out to get you.

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[quote name='Lith' timestamp='1322863651' post='4889932']
1. Is it legal to add some sort of references to other games which i have no ownership of?
2. For example, an easter egg that has a picture of a character from a game
3. Mabye some text that uses a phrase from another game.
4. What is the likelyhood that i will get sued?
5. am i being paranoid?

1. You can "refer to" another game, no problem.
2. Absolutely not. Read FAQ 61.
3. Depends on how much text, and how recognizable.
4. Nobody can say. It depends.
5. No. But just because I say you're not paranoid doesn't mean they're not out to get you.
[/quote]

Actually the answer to #2 is wrong, or at least "semi" wrong. If I took screen shots of all my favorite games and wrote a game which was based on say modifying history and displaying the state of games as a screen shot of pong all the way up to Modern Warfare, I would be completely within my rights of fair use. The down side is that fair use is legally only a defense and as such you have to deal with costly pre-trial items before the judge can throw it all out.

So, for most folks, definitely avoid all uses of other games even in homage. But it is perfectly legal and you should not "have" to avoid it but it is too damned expensive, even if you would win eventually.

NOTE: only the screen shots are fair use, any direct data use and you are fried.

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Thankyou for the replys.

Here is an example of what i'm talking about with the text references.

Here is another example. In this one a picture of the two main characters from another game on a billboard. I think sony owns both ips here but that's what i'm trying to do, albeit much, much more secretive.

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Yet again frob, I disagree. I think the most you could say is that "You would need their permission to be 100% sure that no one will come after you for that kind of use". And even that is incomplete, as you could be potentially infringing on something you've never heard of.

However, the chances that "someone will come after you" for the text reference easter egg is vanishingly small. For an unlockable character, I think the risks are much higher, and would avoid doing so without permission.

As AllEightUp mentions, the threat of court can often be enough, because to defend yourself would incur money and time. If you have the appropriate "Fair Use" exemptions in the legal jurisdiction, they should not be able to win in court for something like a humorous reference. I cannot, in all seriousness, agree with what frob seems to be suggesting: that there is any realistic risk from a reference like "This is not the mightiest tree in the forest". Were such a small, tenuous reference were enforceable then the entire creative industry would simply grind to a halt from even one or two litigious companies.

No rational company should more than threaten for this particular kind of use, because they could not hope to win if they pursued it through the courts. Whether or not Sony is a rational company is another matter.

Now, if your entire game was but a series of humorous references to another particular game (or a bunch of games made by the same company), then you are in more danger. You might or might not be protected by parody, but there is certainly an argument to be made both ways, and it is expensive to make that argument in court.

You need to weigh up your risks. To help get a realistic and holistic view of these risks, talk to a lawyer. If you decide you cannot afford a lawyer, then you cannot afford a court case, and you should probably avoid taking these risks.

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Part of his question was "is it legal." The answer is "no". It falls under the trademark dilution protections.

To quote one legal site on the matter, there are two ways to dilute trademarks, blurring and tarnishment: "Blurring is an extremely expansive concept -- it encompass almost any unauthorized use of a famous trademark, so long as the defendant used the mark to identify its own goods or services, rather than to engage in commentary, criticism, news reporting, and like activities."

Including the image in the game the way he described in his link is an clear, almost textbook example, of trademark dilution.


>> However, the chances that "someone will come after you" for the text reference easter egg is vanishingly small. For an unlockable character, I think the risks are much higher, and would avoid doing so without permission.

He asked two questions.

The first was "is it legal". The answer, which any IP law student could tell you, is a clear "no". That use requires permission. If they discover it, the company is actually required by law to take legal action to defend their trademark if they want to keep the mark. And they certainly want to keep those right.

The second was what was the risk involved. The answer there was to talk to a lawyer. It is akin to asking how fast he can speed on the highway before getting a ticket. Some businesses tend to play fast-and-lose with the rules, most prefer to play it safe.

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Well, I didn't specifically address the issue of the image. Personally, I wouldn't be inclined to include it because it simply I don't find it funny.


It falls under the trademark dilution protections.
[/quote]
There are fair use exemptions for trademarks too, including parody. Yes, it is interesting to consider this state of affairs which compels trademark owners to act in order to avoid losing their trademarks, coupled with the difficulty of determining whether such a use counts as fair.


The first was "is it legal". The answer, which any IP law student could tell you, is a clear "no"
[/quote]
I don't think the answer is a simple "no". In the case of dilution, you still have to prove it in court. Neither party is automatically right. What trademark law allows is for a trademark holder to take an alleged infringer to court.



  • You need their permission for that kind of use.
  • Part of his question was "is it legal." The answer is "no". It falls under the trademark dilution protections.
  • The first was "is it legal". The answer, which any IP law student could tell you, is a clear "no".
  • That use requires permission.

    [/quote]
    frob, you seem to want to give definitive answers. There are grey areas that you don't seem to want to allow for. The definitive answer (unless you are actually an IP lawyer (I am not, nor am I an IP law student (the condescension is unnecessary))) is to consult a lawyer. It is not "ask for permission", though that route is of course always open.

    The OP isn't the regular run of the mill "lets copy an existing game" IP question. Their query is certainly brushing fair use. I think we should give them the benefit of a more advanced and honest discussion. If the OP is aware of the fair use exceptions for copyright and trademark law, they can factor that into their decision as to what content to include in their game.

    Why deny them this?

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