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mileafly

Is references to other products allowed?

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Say that I am making a game where you can wear hats, is it allowed to have hats and masks etc in the game that refers to other products? Such as a mario and luigi hat (red hat with a m on it etc) and a helmet from bubba fett from star wars etc? I have noticed that Dino Run have these for example: https://dinorun.fandom.com/wiki/Hats

I am unsure what the legal procedure is around this though if any? I doubt that Dino Run developers have sought rights from nintendo and lucas arts?

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No, any reference without licensing is not allowed. Even when it's remotely recognizable like the pipes and art in flappy bird were too much mario inspired. Nintendo jumped on it as soon as it picked up by a larger amount of people and caught enough attention.

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I'd say (Dislaimer: I am not a lawyer. This is not legal advice.), the pixel art you are linking to is mostly 'legally distinct' from the original. But it's probably better to change the letter on the hat and the color. Especially colors are a tricky thing. Choose something similar but never the original color.

But you should ask a lawyer about that. There are probably different laws in nearly every country.

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I wonder if a character in "The Big Bang Theory" wore a Mario outfit in an episode (say for Halloween), would it be held to the same legal standards. They seem very different but also very much the same.

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Glancing at DinoRun's hat wiki, I'd be pretty hard-put to tell that was a Mario hat if someone didn't tell me - it's a tiny image of a pretty generic hat, that just happens to be red with a white dot (not even an 'M'). I'd imagine they are relying on that being ambiguous enough that Nintendo won't bother to send them a cease-and-desist.

Keep in mind that you can run afoul of both copyrights laws and trademark laws in this sort of thing, and they are quite different. If you plan to include references to famous video game characters in your game, you should talk to a lawyer first.

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10 hours ago, mileafly said:

is it allowed to have hats and masks etc in the game that refers to other products?

There is no single source for "allowed".  The details of it is legal or not depend on a long list of factors, including who came up with the idea, how distinctive the implementation is, how well known the products are, and if there are any copyright registrations, trademark registrations, how it is used, where it is used, and much more. 

And "allowed" can also refer to permission.  With a enough money changing hands almost anything is "allowed".

Although people like to think their game falls under one of the "fair use" or "fair dealing" exceptions, games almost never do. If you are sued, claiming fair use is an affirmative defense meaning you are admitting guilt but believe you fall into an exception. If the courts or arbitrator decide the exception does not apply (and it will not apply) then you become liable for intentional violations and will be ordered to immediately make it right.  Usually making it right involves transferring of piles of money, plus immediately stopping the use.

This needs to be repeated for every object and property being used.  Their game references products now owned by Disney, by Nintendo, by Hasbro, by Warner Brothers, by Marvel, and more. Each of those products would need legal permission or risk legal action.

10 hours ago, mileafly said:

I am unsure what the legal procedure is around this though if any?

Work with a lawyer to get proper legal clearance.  That means if your company doesn't own the thing, having your company's people work with their company's people to negotiate permission.

If you cannot afford that, then you certainly cannot afford the legal challenges that will come when they send legal demands and lawsuits your way.

Some groups also rely on obscurity. As long as their project is so small that nobody ever knows about it, they'll never be sued.  But if their project grows and becomes successful they will be noticed, and they will lose what they created.

As long as the product is small enough few companies will bother to sue. The cost and effort aren't worth it. When they're small the company will officially not notice the products. But once they are big enough the company is required to defend their brands or risk losing them, so they'll invoke the law and get it shut down.

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16 hours ago, swiftcoder said:

Glancing at DinoRun's hat wiki, I'd be pretty hard-put to tell that was a Mario hat if someone didn't tell me - it's a tiny image of a pretty generic hat, that just happens to be red with a white dot (not even an 'M'). I'd imagine they are relying on that being ambiguous enough that Nintendo won't bother to send them a cease-and-desist.

OK, how about a high-profile game: List Of Pop Culture References in Sunset Overdrive. The list is huge, and it's not even complete.

Since we're talking about a seriously large game by a serious large studio, it's hard to imagine that they just hoped no one would notice. It's also hard to imagine that they went and acquired all the IP licences, that sound like it would be too expensive given the sheer number of different high-profile IPs. Or is there maybe a  "licence to use [the IP] as an easter egg" that is cheaper and more easily obtainable than the "regular IP licence"?

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4 hours ago, 1024 said:

It's also hard to imagine that they went and acquired all the IP licences

There is a LOT of work that it's hard to imagine in making a mainstream game. Believe it. 

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5 hours ago, 1024 said:

Since we're talking about a seriously large game by a serious large studio, it's hard to imagine that they just hoped no one would notice. It's also hard to imagine that they went and acquired all the IP licences

Insomniac and Microsoft also have the benefit of in-house legal teams, which puts them on a somewhat different footing to an indie developer. They can have experienced IP lawyers perform a risk analysis on those references, and they have already factored a certain overhead for legal costs into their budgeting.

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And it's not unusual to hire a rights professional to secure necessary rights so as to forestall legal actions.

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