Let me preface this by saying...

1. My game will be completely free and not monetized at all.

2. I understand that my game being free does not in any way free me from copyright responsibility and I know the fact that my game is free does not by default make it okay to use someone else's assets.

That said, I am a game programmer. I have programmed many games just for my own amusement or played by just a couple people. I have never reached the point with any game where I want to distribute the game publically. This is going to change soon.

I am currently working on a game that I intend to release to the public. However, I am not an artist. And as such, the game uses (primarily) graphics from a very old game (1990). I have seen other games (most notably fan games like the I Wanna Be The... series) which use exclusively graphics from old games.

I wanted to ask...

Do these games come under any legal pressure when they are released? Do they actually behind the scenes license these graphics from their owners? There are so many of them that it hardly seems likely to me that these indie developers would individually seek licenses for all the content they are using. Maybe they are and I am just completely unaware of this process!

If not, why don't these games come under any legal pressure despite the fact that they are using all graphics that they do not own.

And finally, will my game be able to use these old graphics or will I need to ultimately hire an artist or artists to replace all the sprites in my game? If I do require a license, is it actually possible for me to acquire a license to use these graphics? What if I cannot even find the current owner of the graphics I am interested in using? What if the owning "entity" as a whole no longer exists? Ultimately I'm just looking to release something simple with minimal hassle if possible and I don't understand what the bounds of what I am allowed to do are.

Thanks for reading.

Do these games come under any legal pressure when they are released?

Assuming they're using that artwork without properly licensing it, they are breaking the law and can face legal consequences.

Do they actually behind the scenes license these graphics from their owners?

Yes, this happens, although I don't know anything about the specific games you referred to.

If not, why don't these games come under any legal pressure despite the fact that they are using all graphics that they do not own.

Thank you all for your responses, it has been very helpful in clarifying this for me.

I don't understand the aggression from Tom Sloper, as I am clearly new and asking these questions in ernest. I am just a hobbyist who has no experience or knowledge in these things, and I have seen very successful games like "I Wanna Be The Guy" or "I Wanna Be The Boshy" using almost exclusively graphics from games on the original Nintento Entertainment System. I legitimately have no knowledge of what might be going on behind the scenes with these games legally, hence my question on this forum.

Thank you all for your responses, it has been very helpful in clarifying this for me.

I don't understand the aggression from Tom Sloper, as I am clearly new and asking these questions in ernest. I am just a hobbyist who has no experience or knowledge in these things, and I have seen very successful games like "I Wanna Be The Guy" or "I Wanna Be The Boshy" using almost exclusively graphics from games on the original Nintento Entertainment System. I legitimately have no knowledge of what might be going on behind the scenes with these games legally, hence my question on this forum.

I don't read Toms response as being aggressive at all.

If anything, people are a little bit irritated by the amount of questions like these asked on this forum, given it should be obvious (or so you might think).

In itself it is a valid question, but the answer is rather obvious, and given you already seemed to know the answer, Tom did have a point with his first paragraph.

Now, you are free to break IP laws of course. That is basically what all these guys did. Did some get away with it? Yes, the larger a brand is, the more infringement cases needs to be handled. Given the size of Nintendos brand, the long time they have been around and the sheer importance of their legacy, even a company very aggressively going after infringers will have a tough time fighting the tides of infringing games.

That does not make it legal. Nintendo could at any time decide to go after all these games, and the best these guys could hope for is most probably a cease and desist order. Worst case they would loose a very expensive lawsuit.

Looking at some pics of the "I Wanna Be The Boshy" game, I'd say it is very unlikely they could win a lawsuit. They are clearly infringing. Given that is is rather unlikely they got permission by Nintendo to use their property for free (Nintendo doesn't do that), or license it (Again, nintendo doesn't do that), and it is unlikely Nintendo did settle (Nintendo doesn't do that, has not reason to do so and the infringer most probably hasn't got the needed cash), they most probably are just infringers yet to be discovered by Nintendos legal team.

Expect swift action should that happen. You can expect the game to be gone in an instant, at least from all the storefronts if it is there. Might linger on longer on sharing sites and whatever, but depending on how badly Nintendo wants to strike, they might go after everyone that hosts it and punish them hard.

You need to understand that many on these forums are Indie devs, or working in the Games Industry, others are serious hobbyist. Neither of them is particularly fond of people "stealing" other peoples IP, because they don't want it to happen to them (when they most probably CANNOT afford to go after infringers the same way the big studios can), and because it is just that... stealing some elses (intellectual) property.

And then there is a TON of assets and code available online that others have made free to use and shared it with the broader community. First see if you cannot find LEGAL art before you complain about not being able to proceed with your project because of missing art.

TL;DR

1. It doesn't matter how old something is. As long as it is still protected, you are infringing.

2. It doesn't matter if you make your copycat free. You are still infringing.

3. It doesn't matter if your games are successfull or not. You might get discovered and sued earlier in the former case, you are still infringing in the latter.

If you are looking for good advice on these forums, these are about all you will get:

1. Don't infringe someone elses IP, come up with your original ideas, names and graphics

2. If you are no artist, either

a) learn to live with your limitations and embrace the programmer art... its the new chic in some Indie genres

b) team up with an artist... hard to do without expierience or money to pay them, but expierience and money can be built up over time

c) become more competent at art yourself... yes, even someone with no artistic skill can do that. Might not be the next picasso, but that is hardly the target.

3. Enjoy the uniqueness your own ideas will bring to your game... I am sure your players will like that way more than the next lame Mario ripoff with original graphics and whatnot.

(4. failing all of that, search the net for free art, or buy cheap stock art. If you are searching enough, you will find practically everything you need.)

Just because you don't know who the rightful owner is, doesn't mean the rightful owner doesn't exist.

Not much to add really, most probably he knows very well who the rightfull owner is. For the two games he linked, most of the characters where famous sprites from the 90's. Even the guys not around gaming in the 90's will know who is the rightful owner of Super Mario, or Megaman.

Even if he picks sprites from less wellknown games, the publisher / dev is just a quick google search away. In the day and age of Big Data, there is no excuse like "I didn't know there was an owner"... everything that isn't in the public domain has an owner, everything that isn't opensourced is protected, and everyone has access to all the information there is about old games.

@ TO: Really, I might sound harsh or unfair again, if I do, I am sorry about that. Just do your own research (to find out IF something is opensource, or in the public domain, if its not, its protected), and make sure you don't ask obvious questions.

If the question would have been "how are these games getting away with it", you would have gotten a quite different tone in the responses. People would tell you the same thing ("they are infringing on someone elses IP"), but you wouldn't sound like you kinda plan to infringe yourself.

If the question would have been "I like to use old games sprites, no probs, right?", you might still have gotten slightly harsher response (as the question gets asked to often), but people would assume you just don't know better, and would have given you the same response, without the hint that you actually already know better.

One last thing to address: this again might be obvious, but there are some people that assume something that has become extremly famous and has been around for some time automatically becomes public domain (free to use for everyone)...

Like what happens sometimes with brandnames that become synonymous for the real name of the thing. It HAPPENS that judges rule a brandname to be "public domain" because it has kinda replaced the original word in the language (happened in switzerland with the Brandname our biggest telco gave to their cellphones).

But unless either the owner puts something into the public domain, there are EXPLICIT rules about when something becomes public domain (happens with books, for example, but only after MANY decades... I don't even know if there is a rule that the original author needs to be dead and no heirs to be found), or a judge rules about it (which happens very rarely, usually only for names), things remain owned by whoever created something, or bought the rights to it.

Mario might be a famous gaming character, it might be THE iconic gaming character. But its still actively used by Nintendo in current games, thus unlikely to be unprotected. Even if it wouldn't be used anymore, you can bet Nintendo would keep the rights, for the chance to revive an old character down the line.

Only if Nintendo would go belly up, nobody would buy its assets (like the rights to Super Mario), there might be a slim chance that Super Mario might be put in the public domain... but only if the rightfull owner decide to do so. Which is, again, highly unlikely.