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amazing_zombie

A quick question about copyright

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So for a character design i want to have a character that has a few references in it. Its theme is time so i made him a frog as a reference to chronotrigger, with a labcoat as a reference to back to the future that has a flux capacitor symbol from back to the future on it and he has one of those time collars on from Rick and Morty. Those are basically all the references in his design and i was wondering if any of those would be considered a copyright infringement. I personally don't think so and if any it would be the symbol but i don't want any legal trouble so i decided to ask here.

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Those are basically all the references in his design and i was wondering if any of those would be considered a copyright infringement. I personally don't think so and if any it would be the symbol but i don't want any legal trouble so i decided to ask here.

There are many types of intellectual property beyond copyright.  With very few exceptions,  any recognizable element created in the last century has legal protections. The flux capacitor symbol is owned by someone, the time collars are owned by someone, the Chronotrigger elements are owned by someone.  Sometimes they are owned by more than one person or company.

The specific protections for any particular element may be very strong or very weak, but they still have legal protections.  There is also a level of risk involved, using something in a particular way might be legal under fair use rules, but that might not be enough to stop a lawsuit. Certain fair use defenses are defenses, meaning you still go through the lawsuit and have to explain to the judge why your excuse is valid.

So since you are asking about legal trouble:

1. The easiest way to avoid all risk is to not use their stuff.  No risk, no legal troubles. This is a creative industry, be creative.

2. If you use the stuff, get permission from them. Some effort (and probably money for your lawyer and their permission) but no risk and no legal troubles.

Any other option gets into the legal trouble arena. Some people notice that fair use has several options, like using the name of the thing, making commentary on the thing, using it for educational use, and parody of the thing.  Let's get those cleared up:  Your game IS NOT education use, it is commercial use.  Your game IS NOT a parody; a parody is entirely based around the thing in order to make a commentary on the thing, not using a tiny element in homage or reference to it. A parody is rewriting "Gone with the Wind" (about a plantation owner recovering from poverty) as "The Wind Done Gone" describing the terrible life of a slave on the same plantation.  References to Back To the Future would need to be a major commentary about the movies, not just showing a flux capacitor.

 

Minor use of a recognizable element is a minor risk of a lawsuit. They might not notice. They might notice but not care.  They might notice and care but not think it is worth the trouble. Or they might notice, they might care, and they might start legal proceedings by sending you a Cease and Desist letter or worse.  There is some legal risk, even if your use is legal.  Which brings up the question:

 

How much lawsuit can you afford?  If you cannot afford any legal troubles, then don't go near other people's creations.

Edited by frob
Brain runs faster than fingers, added some accidentally omitted words.

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With the merge of all the elements that you described, it looks that your character has become something of its own. Sincerely, even if it still looks like CT's frog, that would be like saying that character Bob is a copy Pete because they are both humans. CT's frog character isn't the only frog around, and the list is quite long. I wouldn't worry about that (unless you explicitly say in your game "hey, i'm the frog from CT!").

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you'd be more likely to run into trademark and trade dress issues rather than copyright, as the components you indicated are more representative of their respective franchises than as copyrightable subject matter. Of course, anyone suing you would likely raise both, as well as unfair competition and a few others. 

As Frob said, the issue isn't whether or not you'd win on the merits, it's whether you can bear the cost of defending yourself even against a lawsuit with little merit. You weigh that against the likelihood that this will appear on any of the respective franchise owners' radars. Then you determine the value added by including those elements to the game itself. Looking at those factors, you can decide for yourself whether it's worth the risk.

I long ago learned that telling people they "can't" is a waste of energy. They're going to do it anyway, even if the risk is high. It's like speeding on the interstate-- people are aware of the risks (as you are aware of the potential IP implications), but for whatever reason they think they're immune from the consequences or they can "read the system". Or they're in a legitimate hurry, and the consequences of being late are greater than the consequences of a $300 speeding ticket. Everyone has their own circumstances.

In 99% of the cases I see the "borrowed" components don't add enough to your product to make it worth the risk of a lawsuit. This is probably one of them. 

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