Using copyrighted characters and IP...

I've seen several games built with Unity using copyrighted characters, and wondering about the legal standing, and if you made a game like that, how you could share it or what you could do with it. Suppose I wanted to make a fighting game similar to Arkham but evidently different and with Superman or Spider-Man, shared entirely free and non-commercially with no claim to the characters in a disclaimer, can anyone advise what exactly would the rules be? Is creating a fan-game legally different from fan-art or fan fiction, if it is interactive and playable?
Thanks for any help.

 

I suggest you contact a lawyer. You will get much better advice and since using Marvel characters in a game you want to share, even for free, could be very dicey, getting some legal advice would be smart.

Really, you should just make your own original characters. Your only other option is to contact Marvel or whoever and ask them for written permission.

 

IANAL, and @Teila is absolutely right, but for what it's worth, here's my understanding.

In Japan, fangames are very popular, and though technically a trademark infringement, the trademark holders are generally quite lenient as long as the fangames are not for profit.

Here in the states, though, trademark holders tend to be much more protective. If you use an actual Marvel character in your fangame, you're likely to get a cease & desist letter. This is true also of fan art or fan fiction, though obviously people get away with it.

Incidentally, if the game you're making is at all similar to Spider-Man 2, one of the greatest video games of all time, count me in — I'd be happy to help with that, even if we have to change him blue and call him Web-Spinner Guy.

 

Thanks for replies. and for offer of assist, JoeStrout, but it's early days and i'll do more research before commtting to the project myself (and it was more DC I was interested in than Spidey).
I was hoping anyone here who'd had experience of this could advise, if anyone had ever got a cease and desist notice and if there was a legal way, to bend the rules without quite breaking them? I'll look into it.
I may even contact DC themselves through some means, and see if there is a precedent for this and a way to do it without infringement.

 

It seems there was a pony game once upon a time that was closed. It was free, no money made from it, but it was too close to the famous brand ponies. This is essentially what happens if your fanart game becomes too popular.

So, if it is you and a few friends, fine. But before you know it, there are pictures on Twitter, links from Facebook, and money changing hands...even if just someone paying someone else for their account. Then you get in trouble.

Is it really worth it? If it is more DC, try DC Universe or some other comic book based games. Why steal someone else's stuff? Making games is an art, which means you should be at least someone original, even if you are inspired by others' stuff.

And it is breaking the rules....no if, ands, or buts. You can't do it without breaking the rules. I suggest asking DC. Then you will know before you spend time and money doing this.

 

Going to assume you're referring to Fighting is Magic which received a cease and desist for using the characters from the fourth generation of My Little Pony. Their response to the notice was about the best you could do with a C&D.

They attempted to negotiate a licensing deal with Hasbro but when that failed they renamed the game, designed new four-legged characters from scratch, and completely replaced the artwork.

https://en.wikipedia.org/wiki/Them's_Fightin'_Herds#Cease_and_desist_from_Hasbro

 

http://www.cbr.com/the-superhero-trademark-faq/

http://chrisoatley.com/fan-art/

http://www.nintendolife.com/news/20...right_infringement_demands_usd4000_in_damages

https://en.wikipedia.org/wiki/Rogers_v._Koons

 

I kind of get it. Someone created Spiderman and why should someone else be able to make a game using someone else's creation, even for no profit.

 

Well, in Japan I think they reckon that fan art/fiction/games only helps spread the brand and strengthen brand loyalty.

But, yeah, it's up to the copyright/trademark holder — if they don't see the benefit, then you're pretty much out of luck.

 

Some japanese companies have quite the opposite approach to what you describe. They issue copyright strikes left and right against youtubers that cover their games. There has just been some outrage over this for Persona 5:

https://www.techdirt.com/articles/2...ers-dont-want-people-streaming-spoilers.shtml

http://www.tssznews.com/2013/12/20/sega-issuing-copyright-claims-strikes-on-multiple-youtube-videos/

It's the reason why Totalbiscuit is still maintaining his SEGA boycott on his channel.

Now I wonder what gave you the impression that things are the opposite in Japan. Is it maybe different in Manga culture? If so, I wonder where the polar opposites accross different industries seem to come from.

 

Why even use those characters "for real" when you can just closely emulate the look, and "powers" of that character, without technically breaking any rules? You just make something like Crossy Heroes - Avengers of Hopopolis and nobody can sue you into the dirt hopefully

 

It is an addiction to fanart I think. lol My daughter suffers from that. She spends hours making pictures of game characters while her art teacher encourages her to make original stuff. Then a show comes, and she has nothing to sell because it is all fan art.

Original is better, honestly. It is yours and shows your style and your inspiration.

 

I could claim it was things like this, but actually I just read an article a few weeks ago about game development in Japan, and the strong segment of hobby developers who are not trying to make any money off their work, and who primarily make fangames based on popular characters. There was even a (Japanese) term given for this type of game. But I'm embarrassed to say, I can't remember the term, nor can I find the article again despite 15 minutes of searching — my google-fu is weak today.

 

This feels a bit harsh to me. The point of fanart is that it ties into a rich lore which other people appreciate. When your daughter makes a picture of her favorite game character, it's because the character, the background, the details of the costume, etc., all recall a story which she loves. Her art has an immediate audience of people who know and appreciate the story. If she adds some action in the picture, then this audience will think about how that action fits into the lore, whether it's portraying some well-known event or is a previously unknown event that nonetheless fits into the story somewhere.

If you create an entirely original character, you have none of that. At best people might recognize the broad genre (oh, it looks like some sort of fantasy paladin, and is that a baby dragon next to her?). It evokes much weaker emotions, because it's just another nameless character probably doing nothing much.

Disclaimer: I don't make fan art, nor do I have any particular interest in it... but I think I still understand why people do it.

 

Found it! The term I was thinking of is doujin soft.

Wikipedia sez:

And I was incorrect that these are always free — apparently doujin soft games are frequently sold at video game and anime conventions, and increasingly over the internet too. Some people even manage to make a living at it.

 

Thanks for digging it out! Among the links I posted was an example of someone getting sued over throwing a Pokemon-themed party that had a small admission fee. So I'd still advise against doing any of this. I don't doubt some people still make a living from infringing on other people's intellectual property. There'll always be people that don't get caught even though it's not legal what they do, or at least really really pushing it.

Honestly I think this is 100% sueworthy based on character likeness and use of the word super hero in the marketing text. Maybe they've got some kind of agreement with the rights holder for paying a small percentage of proceeds in exchange for using close likenesses but not the trademarked names?

I'm generally critical of the extend that some IP protection laws go to, like the "+" shaped controller dpad being patented by Nintendo (if that hasn't expired yet) or broad terms like "super hero" being owned by the big two comic publishers, but Imho this is an example of commercial exploitation of existing IP that belongs to someone else and that is the thing that should be prevented by IP protection laws. That's the whole point of having these laws to begin with.

Why do you think it's being too harsh? You've described very well why making fanart is "low hanging fruit". It's easy to make people react positively to it, because they already like it and have a strong emotional bond. If they can't make people feel anything with your original art, then maybe they just don't have much to say as a artists? One could argue that it being harder to interest people for original work is the point of making it. It strips away the things that get easily obfuscated by the fanart context. So if people like the original work, you know it's because of its own merit and not because it's based on a popular franchise.

Sometimes professional artists will still do the fanart thing because they know it will be popular and they do it as a very calculated marketing move. I perfectly understand that, but I hope they at least are a little bit sad while doing so, because they full well know people mainly like and share that stuff because of the original IP it's based on.

 

Your right, its just the first thing that came to mind lately that has been borderline sue worthy in my eyes, but somehow manages huge success nonetheless...

 

The point is that she cannot sell it. So then she is stuck with a show with no art. She is not a child and focusing on fan art is not going to help her future. Yes, it is fun and when she was younger it was okay. But then the time comes to do what one can do to move forward.

 

I think I hit a nerve with this thread. Before anyone gets further carried away, let's recap: I wanted to know if this was even legal given the examples I've seen in game and animation - I won't link, but you can probably find them yourself - and if not, how those creators protected themselves (or not). I also wanted to know if the rules for games and digital animation are the same as those of traditional art (since, if you've ever been to Deviant Art, you've probably seen many renderings of Batman and Deadpool, all pure fan-art). I also wanted to know if anyone had experience with this themselves. Nonetheless, I appreciate the info and response, so thanks

 

Deviant art is showing off art skills. Making a game means you are going to disseminate and share the game. If someone sells fan art it is not legal unless they have a license to do so, regardless of whether they get away with it.

Do you want to do the legal thing or get away with it? It is going to much more difficult to get away with a game if it is pass along and shown off on Youtube, where they will probably shut it down anyway. Martin has given you plenty of links that show you that this is not legal and you could be in trouble if you persist.

Regardless, we are not lawyers so asking us if it is legal is not going to cover you. You need to talk to a lawyer. I actually rather hope the mods shut this down because you really here to get someone to tell you it is okay to use Spiderman and Superman in a game even though you do not own the rights to either of those characters.

Anyone who tells you it is okay has no idea what they are talking about.

 

If you're already sure you're using IP that belongs to another company, it really depends on the policies of that company as to what you can do. Some will come down on any perceived violation hard, while others are quite permissive in order to promote a large and thriving fan base.

An example of the later is Star Trek. In general the owners of the Star Trek IP allow fan produced works of many kinds to be distributed, from some types of fan fiction shows to games, with the biggest requirement being you can't try to make money off their IP. Star Trek conversions for games are common, and fan produced Star Trek games given away for free have been around since at least the 1980's.

My official response is talk to a lawyer. My "I am not a lawyer so don't complain when this blows up in your face" response is to take the following considerations.

1) Again, what are the policies of the company that owns the IP?
2) How central to your game and story is the offending IP? (A small cameo is probably easier to get away with than a main character)
3) How related to video games is the IP? (Making a Mario game is probably more risky than non-video game IP)
4) Are you planning to make money from this? (You're far more likely to run into trouble charging for your game or trying to make money from ads, than just giving it away for free)
5) How current is the IP and how important is the IP to the owner's revenue? (Using IP that is a large money maker for current and near term projects of the owning company, for example using characters that will be in a movie coming out soon, is probably a much bigger risk than using IP that no longer generates income for the company, like the Domino's Noid - as if they do come after you it will largely be for estimated lost revenue)

 

The other replies here have been quite helpful. What I am getting from you is that you're not a lawyer and you hate plagiarism, two things we have in common, but your quickness to assume, accuse and need to have the final word (three times) and then even request the thread be closed to future input once you've done so is not helpful or constructive, and pretty bad form.
On topic: my questions were all quite straightforward, and have been mostly answered, so thanks to those posters who did so.

 

Asking a lawyer, means getting pretty much the same information as your answer. According to my lawyer.

 

This is an interesting and valid point. I tend to be more engaged by fan art then by generic art. Art often becomes more powerful when you have an instant story to attatch it too.

In some ways this is why religious art has done so well historicaly. It's an instant story that people can attatch too.

 

Yeah, but saying "Teila said I can do it" is a lot different from an attorney telling someone they can do it. lol I doubt Teila's response will stand up in court.

 

And it is foolish to go on a forum and ask for legal advice. If you don't like the answers, don't post the thread in the first place. The thread should be closed. The simple reason is that others will read this and take what they want from it and get in trouble.

Legal advice does not belong on a community forum. And if you ask it, then telling someone who gives it that they are not constructive even more so tells me that you don't like answers that don't agree with what you don't want to hear.

 

Agreed. Just wanted to validate your statement: contact the owner and a legal advisor before doing any of this.

Agreed.

 

@TheManWhoLaughs

Here is something from a video game attorney which you should take a look at.

https://www.reddit.com/r/gamedev/comments/5pxldd/ultimate_as_promised_guide_to_legal_needs_and/

 

Interesting how he said about free-to-play non-commercial fan games, that people got sued for this and lost money, etc.
If someone is really afraid, that he'll be sued for this... just don't write your name in credits ^_^ So they won't know whom to sue, lol! You don't make game for money, you don't need a company, it's a fan game, so no one will steal it, and, funny, if someone steals it and start saying "hey! it's me, who created this game! i'm the cool guy, know it!", he'll be sued instead of you, haha! So just make a fan game, upload it somewhere at fan sites, etc. and let people play it and IP owner's will never ever sue the anonymous dev, because how the hell will they sue an unknown person?

 

Because you don't need to put your name on something for someone to track you down. Every activity an individual performs on the web leaves a breadcrumb trail between their computer and the servers they interact with. Someone knowledgeable can follow that trail back to the guilty party. It happens all the time.

Only people who think they are completely safe are the people who just don't know any better.

 

They file lawsuits with the name Jane Doe and John Doe until the real name of the person is found. If you have any questions on that contact a lawyer.

 

Lol, only naive people who don't know how it actually works, believe that they're not safe. Watch more sci-fi movies about hackers and their magic way to track physical addresses ^_^

In reality, if you upload something illegal on someone's website, IP owner will need to contact site admin, so he can tell them IP address, then, having that address, they have to contact the internet provider, giving them that address, telling the time when stuff was uploaded and website. Then internet provider tells them the name and physical address of a person, who was given that IP address and was on that domain at current time. Then they know who you are. But funny thing is that there're over9000 ways to avoid this, but in most cases, in most countries, IP owner will fail when he tries to contact your internet provider. In my country, for example, I'm perfectly safe, even if I upload something illegal right here and it belongs to some U.S. or other major country. Moreover, I can just go to internet cafe and upload from there. Moreover if I was a student, I could upload it from university, I can upload it from library, I can use public proxy, I can use VPN, I can use someone's wi-fi, I can even partially hide my face, when I enter public place in case of cameras and feeling very paranoid and if IP owner is very very serious and thing I'm going to upload is very offensive. I'm myself violated those laws more times, that I followed them, but here I am, typing this post. I'm a damn criminal according to all those stupid laws, which are so easy to avoid and I don't even perceive them seriously, thus I don't consider myself a criminal. It's like having a law "don't think bad of someone", which can't be even tracked. There're millions of ways to avoid all that internet stuff, especially if you don't live in major country and your internet provider is an unknown idiot company which won't cooperate with anyone (my case).

Edit:
About contacting lawyer - that's actually a bad idea (in case you'll decide to violate law in future), since that's what will probably may cause you problems. If you ask someone "can I steal this thing?" and then this thing is stolen, you'll look.. uh.. a bit suspicious

Also it mostly all depends on your mentality, abilities and again, the country you live in. May be it's all very very serious in US and other countries, I don't know, but in my country security is so low +my mentality and skills and paranoia gives me all the requires skills to do those "crimes" and get away without punishment. I see and remember placement of cameras in public places, I don't have my real name + photo anywhere on internet, I have different email addresses for different stuff, use different nicknames everywhere, etc. So I just laugh everytime, when I hear about all those IP/mac address tracking and stuff. Just plan a "prefect crime", make sure that logically you can't be tracked and you'll have no problems.

 

http://lmgtfy.com/?q=attorney+client+privilege

 

What does this have to do with the thread's content? No one is asking that question. I guess you just wanted to look cute.

 

Did you not even see the quote I was replying to? u53d suggested not contacting a lawyer due to "problems" that may cause with regard to what was said to the lawyer. u53d doesn't know what he's talking about, and is apparently unaware of a legal concept generally referred to as "attorney client privilege." Instead of giving people terrible advice, he should google what attorney client privilege is, which he can do by just clicking the link I included.

 

Actually, u53d is on my ignore list. lol So no, I did not see the reply. Sorry about that..one negative, albeit tiny, affect of using ignore.

But you were absolutely right. He had no idea what he was talking about. LOL Probably the reason why I ignore him.