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How To Judge Legal Risk When Making a Game Clone?
An anonymous reader writes "I'm an indie game developer making a clone of a rather obscure old game. Gameplay in my clone is very similar to the old game, and my clone even has a very similar name because I want to attract fans of the original. The original game has no trademark or software patent associated with it, and my clone isn't infringing on the original's copyright in any way (all the programming and artwork is original), but nevertheless I'm still worried about the possibility of running afoul of a look and feel lawsuit or something similar. How do I make sure I'm legally in the clear without hiring an expensive lawyer that my indie developer budget can't afford?"
Laws have become horribly, horribly complex. I'm not sure any of us can do that for anything we do.
# cat
Damn, my RAM is full of llamas.
The question can not be asked whether someone "can" sue, because anyone can file a suit for any reason. And in modern legal warfare, that is a good assessment of how things go down. Instead it is a matter of whether they WOULD sue. The questions you should be asking yourself: -Who holds the rights over the original game? -How litigious have they been in the past? -Do they belong to an industry association?
Go for it and don't worry. If you make money on the game and someone notices, you might need to share the profits. Given the description of the game, that might be fair in this context. On the other hand, if you don't make any money, no-one is going to bother you with anything other than a cease and desist. Either of these scenarios will make your game more popular. See Streisand effect for details.
How do I make sure I'm legally in the clear without hiring an expensive lawyer that my indie developer budget can't afford?
You can't. The worst thing you can do is what you're doing; going to a bunch of random armchair lawyers on the Internet.
If you're that worried, get a lawyer or do a different project.
Once they're all dead, they'll be no-one left to sue you.
Just making a clone can tie you up in court unnecessarily, such as MySQL AB v. NuSphere, where a non-GPL clone of the mysql client API is being attacked unfairly. There are many instances where a similarities to another software package of something has caused horrible legal battles that do nothing but make the lawyers rich and make programmers find new careers in disgust.
These days it seems dangerous to program without becoming incorporated or doing it under the umbrella of a big company. Who wants to lose their house because some company dragged you through court or demanded an absurd settlement for "damages".
“Common sense is not so common.” — Voltaire
By any chance are you the guy running PlanetMULE?
On the globe that is. If you do not want to get sued (I am European so we don't have that problem really here) make sure you are NOT officially an US developer. Create a cheap company on some island in the middle of nowhere where the US has nothing to say. When the original creator starts wanting to get paid for your work, move to that island and just enjoy it! Laws are so utterly complex, one law overruling or disagreeing with another law that it would be foolish to think you by yourself can fight against that system. They will just bleed you dry if they really want to and have the resources to do so. However, and this is more serious advice. I like to make remakes of oldschool games myself. Sometimes with new elements, but I have also made a lot 1:1 remakes. In those cases I just wrote to the original creator. Asking if they were ok with it. This was all non-profit though, but for the 8 games I remade, 1 guy said he didn't want me to remake it. So I ignored him, remade it for myself but never gave it to anyone. I never ran into problems with that last tactic. And I think it really is the best advice I can give you. Track down and contact the original maker and ask them permission. That would save you so much trouble if they agree.
People will still find it, and if the game is any competent it should be a relevant reference on its wikipedia page (of the type "a similar modern game" rather than "NN set out to make a clone". It would also avoid any problems related to trademark.
IANAL, but it seems that "look and feel" lawsuits are very rare or there would be more relevant/recent examples.
...and is weighted against derivative hacks. Go figure!
In my (non-legal-professional) opinion, what you are doing sounds high risk -- you are consciously replicating their expressed work (the game) and even admittedly giving it a deliberately similar title. It sounds like there are some copyright issues -- some things about games can be copyright and others can't; your remake might be considered a "derivative work" however. If you did wheedle out of that complaint, it sounds like you could still potentially be sued for "passing off" as you have a deliberately similar product with a deliberately similar name.
I'd advise having a look at the legal history of Scrabulous. They remade a not-so-obscure game, got sued, won on some parts but lost on others, but are still trading (being sued is not necessarily game over).
Do you know who owns the IP to the original game? Do they have a habit for litigating? Do they even know they have the IP or did they acquire it by buying distributor X that bought then bankrupt studio Y that got it from independent coder Z?
And is the original game Hardwar or X-com? Because in that case, keep programming, whatever happens ;-)
(Make sure you release the source before getting dragged off by some goons into a black helicopter though)
People replying to my sig annoy me. That's why I change it all the time.
So if you ever make any, spend some of it on an accountant(*) and get him to set up two companies: one incorporated in Elbonia that has all the assets, and a shell development company with all the liabilities. Don't contest any lawsuit, just smile, punt the shell company into bankruptcy, and set up another one.
This isn't meant to be flippant; it's a model that works just fine for Hollywood. Ask any creative type who's ever tried to get any money out of a studio.
(*) Accountants are much like lawyers, except that they're cheaper, and they can be harmed with conventional weapons.
If you were blocking sigs, you wouldn't have to read this.
Find some earlier game that the game you are cloning copied.
Make yours look more like the earlier (hopefully unprotected) game - when it goes to court
most of the attack against you will also be an attack against the attacker.
To deal with a cease and desist action you need to have guts, means, and rights - pick any two, and it may do. If you have the guts and the means you can make a lot of smoke, and they may decide it is not worth fighting you. If you the guts and are in the right, you can explain to them that you are in the clear and answer their letters through an expensive lawyer as a bluff to make them think you have the financial means to fight. If you have the means and the rights, you do not need guts (but then you would not be asking slashdot for advice, would you). However, if you have less than two of those things, you need to be aware that you are going to fold the moment that you receive a cease and desist, and decide now if that means the risk and potential cost of losing is too high to get started.
IANAL but I've been in this situation myself, and had to deal with a cease and desist at one time.
Why not frame it as a tribute instead of a knockoff? Include a screen in the about section talking about the orignal game and why you loved it.
Many years ago I was sent a cease and desist from a major board game publisher because I had used their trademark in my shareware games name. However the game rules were ancient and in the public domain. I sent them a letter saying I was already changing the name, and never heard back from them.
Yes, exactly. And if you are really worried about legal problems, why not ask the orginal developers BEFORE developing the game? You can mail them saying you'd like to make your game as a tribute to their old game, that you can't afford to pay them any royalties. They may be ok with it. As long as you have an answer, you know what to do. In my experience, I've been working on an open-source clone of the Magical Drop game (Krystal Drop: http://krystaldrop.sourceforge.net/ ), it was 8 years ago, and I've never had a single complaint.
Develop the game outside US... then you don't have to worry about bullshit software patents and such
I am copying what they did as exactly as I can, though because I don't understand what "copyright" means, I think it has nothing to do with this. Meanwhile, I am using their name for the exact reasons that laws exist to prevent such a thing happening, but I don't think that matters either. Finally, I haven't even bothered to contact the people who made the game, because to me it's more important that I "don't get sued" than that I'm, you know, a decent human being or anything.
-- 'The' Lord and Master Bitman On High, Master Of All
Take the X-Com clones for example. AFAIK there has never been any mention of the possibility of a "look and feel" lawsuit. You could ask those teams how they have approached it and have found?
UFO Alien Invasion as one example.
Hi tepples.
How's it going?
I'm working on a project of a similar nature for an early Julian Gollop game called Chaos: Battle of the Wizards, and I devoted a good amount of time early on in tracking Julian down and seeking his permission. It's obviously a complex and confusing process that's individual to each game, but at the most basic level there is always the intellectual property to be aware of. Also, things change significantly if you wish to make a commercial venture of the game. As said in other comments, a free 'tribute' is a lot less open to flak (unless you're 'tributing' a Nintendo game, in which case buy body armour and watch out for red dots) and will generally be ignored. If however you remake a game and whack it on the App Store for $2.99 again, you're gonna have to watch your back (if it even gets approved in the first place) For my own part, I finally got in touch with Julian via LinkedIn, and he turned out to be most gracious, supportive and polite, and he gave his blessing for me to continue (http://www.rotates.org/2009/05/20/the-man-speaks/). It's really worth taking the time to find the original developer and taking it from there.
Lew
Get your own name. You can go fairly far in cloning gameplay - think how much one FPS or TBS or RTS or RPG looks like the other, but don't steal unique units, characters and storylines. And while I don't approve of astroturfing where you pretend to be a customer, you can generated buzz about it. Go into every forum you can find about the old game, say this game is inspired of it. Right now I'm playing Dragon Age, and boy are there many old chestnuts of dwarves and elves and warriors and rouges and mages and the whole storyline about a blight and an archdemon are hardly original. Go for the one-up, "if you liked [old game], you'll love [new game]". Right now you come of sounding like one of the cheap watch salesmen "same same but different".
Live today, because you never know what tomorrow brings
This article details legal proceedings in just such a case.
http://www.daledietrich.com/gaming/novas-pool-cue-game-mechanics-not-protectable-by-uk-copyright/
A choice quote by Lord Justice Jacob is
This is similar to the Lexulous (formerly Scrabulous) case, where the games makers were forced to make minor changes, including a rename, as it was too close a copy of Scrabble.
More details can be found at
http://en.wikipedia.org/wiki/Lexulous#Legal_and_copyright_issues
It takes being a bit cheeky, but you can also
c) contact the author/publisher of the old game and get (in writing) that they have no problems whatsoever with you releasing the clone.
If you're dealing with a company like Atari (who? yes, they still exist!) or anything Disney, you are probably out of luck. If you're dealing with a Scott Adams (of Pirate's adventure fame) type of person, there's probably no problem at all. As you say the game is rather obscure, so chances are they will have no problem with you releasing a remake, and they won't sue. Perhaps they can even benefit from your efforts, if you're willing to link to the original game!
Visit http://ringbreak.dnd.utwente.nl/~mrjb/growingbettersoftware to download your free copy of the book
My eye is now firmly fixed on this thread.
I am doing something *similar* to the OP, an iPhone-and-Android-and-PCs semi-remake of an old classic ('Eye of the Beholder' for anyone who's curious), although my project has a few substantial differences:
My game...
- .. is substantially higher resolution and visually very pretty (IMHO). .. 's name is completely different (Tale of Vamadon), takes place in an entirely original campaign world, and features an entirely different and original storyline. .. has complicated, Baldur's Gate II-style NPCs and dialogue choices rather than the simple hack-and-slash of its predecessor. .. engine has a large number of enhancements; items can now be inspected, with each having a description, lore behind it, information behind game mechanics, etc. .. has a built-in 'map' function. .. has (near) full v3.5 ruleset compatibility (although we may move to Pathfinder if its licence allows free use in games) .. only lets you generate a 'main' character; all other NPCs are picked up either at the beginning of the game or in the game world, with each having their own personality, backstory, motivations, unique races, etc. .. has dozens of endings all depending on what your character says and does during the game. .. features many cutscenes and other such graphical enhancements. .. has currency, a town, a store where you can buy and sell looted equipment, get optional quests, etc.
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In my humble opinion it's about as much a "clone" of Eye of the Beholder as Halo is of Half-Life. That is to say, the only adjectives it has in common with the 'original' are 'First Person Perspective RPG with D&D Rules'. Is that enough to make me 'safe'? Thoughts?
Check out my sci-fi book "Lacuna" at http://goo.gl/MVxX8
Even if it was distributed with a dynamically linked version they'd be fucked under GPL.
Hey, I like playing re-makes of classic games, like Thrust Deluxe, OOlite, etc.
How do I make sure I'm legally in the clear without hiring an expensive lawyer
Aren't "legally in the clear" and "hiring an expensive lawyer" the same thing now?
Clone Duke Nukem Forever ... not much risk there!
Confucius say, "Find worm in apple - bad. Find half a worm - worse."
How do I make sure I'm legally in the clear without hiring an expensive lawyer that my indie developer budget can't afford?
How do I make sure I don't get pregnant while having sex every day without using any form of contraception?
(Obvious answer: you don't. If you want to make sure you're legally in the clear, you hire an expensive lawyer. If you don't want to hire an expensive lawyer, then you live with not being sure you're legally in the clear.)
"Convictions are more dangerous enemies of truth than lies."
Sure - you could spend thousands of USD on lawyers in order to attempt to mitigate the legal risks you're facing, but there's just no way around the fact that you'll always be facing the risk of having to spend thousands of USD's in a court of law, fighting lawyers who eat people like you for breakfast.
Your problem is that you're currently in a jurisdiction which exposes you to this type of litigation.
What you have to do is to change the jurisdiction under which your business operates.
You do this by making sure that the ownership of the software is not held by a legal entity in your jurisdiction.
You need to set up something like the following:
- A trust/foundation or insurance company in a suitable jurisdiction, that in turn owns the shares of:
- an offshore company, that owns the (rights to the) software and also owns:
- a representative office in the US (your employer)
You must not be a beneficial owner of the offshore entity, but rather an employee of the US rep-office.
Some of the benefits of this setup are:
1. If someone wants to sue - they'll have to approach the offshore entity, in that jurisdiction (according to the laws of the jurisdiction where the offshore company is incorporated).
2. The offshore company will lease out the license to the software, to the us based organisation. This means that you can avoid one of the highest corporate tax-rates in the world (ie: the US corporate tax) by bringing down the annual profits to be taxed using the licensing fees charged by the offshore company).
3. You will not be personally liable, should you lose a lawsuit in the US, as you are not the beneficiary/owner of the company or any of its assets. The assets accumulated abroad will be owned by an entity that is disconnected from your personal finances. Ie: just because some happy-to-sue a55hole decides to go after you, causing you to go into personal bancrupcy, your children's college fund will not be threatened/touched.
As soon as a litigant sees that you have this type of setup - they will find someone else to go after, as they are keenly aware of the costs they would incur just to initiate a court case that would, most likely, be thrown out of court immediately (in many jurisdictions, the claimant will have to put up a bond that covers the estimated legal fees up front - they will lose this money should they lose the claim).
In my experience, a setup like the one described above will cost something like 4000 USD to setup and operate for the first year, then 2000 USD to keep up annually. If you're a US citizen the price will be higher.
Go here to put out a tender for someone to fix your situation: lowtax.net
Post a summary of your situation under the Comments section and watch various accounting firms bid for your business.
Be aware that the companies offering you their assistance in this matter will judge your attractivity as a customer as follows:
- A big minus is that you're a US citizen
- A big plus is that you're doing software (game) development and not online gambling, online banking, online porn or any other high-risk venture
Your best bet is not to bother relying on the legal advice of a bunch of random strangers on a site like Slashdot. It's still a good idea to ask the question though, as a front page story gains you a huge amount of free publicity for your project. Make sure you don't forget to put a link to your game in the summary, however, or the whole exercise becomes rather pointless.
... ur doin it rite!
If a train station is a place where a train stops, what's a workstation?
Given how readily the big guys "rip each other off" on genre and gameplay component ideas, as long as you're not literally stealing copyrighted assets from their version of things, you should be fine.
In other words use common sense ( I don't need to be a frigging lawyer to know that).
Develop the game, release under an open license.
If anybody is interested about it in the legal sense, then they will bother you about it, at that point you stop any alleged infringing activities if youcan defend yourself legally (it can't be copy right, it can.t be patents, it can't be trademarks, the vague "look and feel" or a general idea about a game is not protectable, the myriad of "look and feel" clones of famous games or even of famous hardware should put your mind to rest), now if the company wants to pursue the army of developers of the application in localities outside the US, well, all the power to them, for starters there are certain to have no patent, trademark or copyright claims in the EU and many other localities.
IANAL but write like a drunk one.
Could you ask permission from the copyright holder?
Some remakes (ie: direct copies of old games) are done with the blessing of the person who created the original game. Just tell them the truth: you like their game and you want to make a modern version of it. They may say yes.
Even better, instead of just getting a lawyer, get a lawyer AND make original games!
What exactly do you mean by "original"? If you mean the first of its genre, I'd like to see evidence that it's still possible to develop original games. The last genre-making game I can remember (Parappa the Rapper) was published in the 1990s.
it seems that "look and feel" lawsuits are very rare or there would be more relevant/recent examples.
The two big ones I can remember that went to trial were Atari v. Philips (cloner lost because the character in a maze game looked too close to Pac-Man) and Capcom v. Data East (cloner won on scenes a faire because cloner's fighting game characters merely resembled the same karate-movie archetypes). The rest, such as Tetris v. BioSocia (cloner's puzzle game implements the same game rules), have largely been settled out of court.
If you find a competent, reputable IP attorney, it shouldn't cost more than $500 to sit down with them for a 1 hour consultation. I got a 1.5 hour consultation with an outstanding, very in-demand real estate attorney on the outskirts of metropolitan DC for $400. You don't need to retain his services, just get him to go over your plan and tell you what he thinks is your risk.
I have to ask...why make a clone of a game that already exists and sounds like is abandonware? It sounds like you could just as easily turn it into a rom and emulate it or something.
Now, if you're trying to just make a fun game that has the same spirit of one you loved - then I suggest you revamp it. Give it better graphics - give it a new story. Make it a whole new experience for the player - otherwise you're "reinventing the wheel" as they say.
Anywho - if you're planning on making money on making these games, or hell anything, I'd suggest doing as one of the other posters mentioned - set up a business for this. An LLC or some such - not a sole proprietorship or anything of that nature. You want a limitation on the liability you can incur. With this in place they can sue the business for its assets but not you and your assets (typically - unless there's fraud involved and whatnot). I think this is fair too because then you can establish a wall between money you earned from your endeavours and thus can prove true gains from this if they ever want to ream you for "damages". With this you have quantifiable proof of the limitation of the "damage" the developer incurred. Now this is only in respect to if you decide to push forward with making a copy of this other game. If you do decide to make something new I'd *still* suggest the same course of action. Any time you're taking money from people for work you're doing you absolutely want to limit your liability. To hell if I'm going to lose my house and my livelihood because some jackass says the RAM I installed burned down his house or whatever. Crazier things have happened.
In short: cover your ass, don't be a dick, educate yourself, and keep up the motivation.
As I read the comments (threshold 2 at the time I post this comment), the consensus is #2.
How do I make sure I'm legally in the clear without hiring an expensive lawyer that my indie developer budget can't afford?
Easy, hire an inexperienced cheap lawyer? Its better than nothing. Its like saying, "I need to hire a C++ developer, but I can't afford Bjarne Stroustrup, so what should I do?"
Also, everyone starts at the bottom somewhere. A young ambitious lawyer whom wants to be the future corporate counsel for Microsoft might very well work for you for free to stuff his/her resume. Hint, they're going to want a spiffy job title.
So, find a fan of your game whom happens to be a young lawyer whom would like to gain a lot of experience quickly...
"Science flies us to the moon. Religion flies us into buildings." - Victor Stenger
Why don't you use all of your skills to make an ORIGINAL game instead of trying to attract their audience?
Games like Dune 2 and Warcraft and almost all other RTS games play like each other.
Most FPS games play like each other.
What is working here is that:
Features are viral, and once a game invent a way to build games that seems fun, others clone that. Even the games that create a whole new way to play, clone everything else, from menus, filesystems, way to store a bitmap in a disk. The creation of a videogames is a community effort, where all minds work togueter. No game can claim to be 100% original, with no influence from other games. Almost all games can be draw into a "family tree" of incluences.
-Woof woof woof!
I am a lawyer and practice primarily in software. I tried to read through this thread and responses - and as is typical here, at least for me, it is hard to separate the valuable insight from really really bad advice. I enjoy /. mainly for the comical signature lines most of the time.
First - no venture, no product or service, is risk free. There are ways to minimize the risk - and often small changes can make a big difference. The post you made here is itself possible evidence. By merely posting in a public area like this, and describing your intent, you have increased your risk.
Second - no software, and I mean none of it, is IP infringement free. Your objective should be to modify or avoid areas that increase risk, and then proceed.
Third - a common misconception in software development of related software is the idea that because you do not have the prior code, you are not making a derivative work. There are a number of copyright cases in other areas (they principally deal with "plots" in movies and books) that will apply to software development, because a game in the end is an interactive audiovisual work that is also a story that the player writes. So, you have to apply these older cases in the theater world to software. Those cases distinguish between going too far in plot duplication, from taking only what is known as "scenes a faire." That doctrine translates in English to "common element" or "building block." So, for example, copyright law will not prevent one author from using a common theme, element or building block gained from the knowledge of a past work. Otherwise, copyright would protect the idea - and copyright law cannot protect ideas.
So, you need to go see a lawyer, and show the lawyer the prior game. A good lawyer who knows copyright law can then tell you what elements are "building blocks" and which are core plot or thematic elements. In the cases, one component of this analysis is how well a character is developed. For example, "Lara Croft" was a very well developed game character. In the games she killed people and blew things up etc and had grand adventures. So, the idea of a woman in a game doing these things cannot be protected by the owner of the Lara Croft games. However, as a subsequent game character approaches expressive elements of Lara Croft's character . . . infringement is likely.
It is even more complex than this, though. Because assuming you can hurdle copyright law, now you need to deal with trademark law. In short . . . this is a complex issue and you do need to see a lawyer.
I have been engaged to both prevent, and to correct, errors made during software development. It is VASTLY less expensive to hire a lawyer and prevent errors. Once an error is made, the cost is astronomical to fix it. The last jury trial I did was a game development gone bad, and I represented the developer trying to get paid. We won and the jury gave us 100% . . . but since that time, I have devoted the last 15 years to doing only transactional software development law and licensing. Please find a lawyer and pay them for some advice. There are things you can do on the front end to really minimize the likelihood that the prior game owner will sue you.
A final thought - many people have suggested contacting the prior game owner. That is definitely something to consider IMO only if the advice is that your game is likely an infringement of the prior game. When development would be easier this way we advise this - but be prepared for negotiating a royalty deal. In most cases, a developer will simply "design around" the prior intellectual property and not seek permission. However, depending on the IP owner, sometimes permission is easy (for example, it is fairly easy to get permission from the estate of Jimi Hendrix; it is next near impossible to get it from the estate of Jim Morrison of the Doors - and figuring this out is rather easy - also, a lawyer can do this for you anonymously).
- mike oliver
"Copyright does not protect the idea for a game, its name or title, or the method or methods for playing it. Nor does copyright protect any idea, system, method, device, or trademark material involved in developing, merchandising, or playing a game. Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles. Copyright protects only the particular manner of an author’s expression in literary, artistic, or musical form."
http://www.copyright.gov/fls/fl108.html
Anyone can sue you for any reason. It doesn't mean that they can win. But if they have money and they can pay fancy lawyers, they will probably find some technicality to take you out and rob you poor in the process. Live with it.
Then I have to explain to my girlfriend why I'm digitally scanning strippers in my apartment..
/It's for a game I'm writing!
//No, really!
The original game has no trademark or software patent associated with it, and my clone isn't infringing on the original's copyright in any way
If what you say is fact, then you did all the research already. The only thing you can get from Slashdot is "Go ask a lawyer" or "how should we know?" or the overly skeptical and cautious "law is absurd and complex so it doesn't matter what you do, you could wind up in court anyway."
Standard, disclaimer: IANAL.
Regardless of what other advice you follow to limit the chances of a lawsuit, you should start a Limited Liability Company to reduce your personal exposure to such a lawsuit. In most states this should cost around $100. If the LLC releases the game, it is the LLC that assumes liability. If the creator of the original game does sue, they can only be awarded the assets of your LLC (which, if you manage it correctly, should be limited to the game itself).
This will take a little bit of research, but I think it will be worth the time and money. As others have pointed out, even if you're legally clear, the original game's owner could get you into a lawsuit that is prohibitively expensive to defend. In that case you may want to cut your losses and offer them the rights to the game. If you have an LLC, they're sure to accept because the rights to the game is all they could acquire by suing (and suing would cost them money). If you don't have an LLC, they could pursue more of your personal assets as damages.
Please tell me you are cloning Darklands. Ok, it's not rather obscure but I loved that game so much!
www.meneguzzi.eu/felipe
The problem is also that even if you shell out the money for a lawyer at the beginning, you may still end up in court. My Intro to Law professor (also a working attorney) hammered into us that when it comes to the question "do we have a case?" The answer is always maybe.
to avoid this seems the very reason copyright law exists...
Actually, he seems to have pretty good idea of what copyright is. The copyright is the right to copy. If you don't copy, you cannot infringe on anyone's copyright. In fact, if he can prove that he wrote it/created it himself, he wouldn't really infringe on anyone's copyright even if his work happened to be exactly the same to a byte. That doesn't mean he's not infringing on other intellectual property rights or trademarks, of course.
The copyright law itself is not that different in most countries (at least in North America and Europe).
Of course, from some US intellectual property cases it seems that your rights and the intention of the law has nothing to do with whether some can sue you, win the trial and get an obscene amount of money from you.
It's worth noting that civil lawsuits like this rarely happen unless someone a) considers someone a threat, or b) thinks they can make a lot more money than the necessary litigation will cost. If you don't make money off of it, or if the old material isn't making money anymore, it's unlikely that you're going to attract their attention.
Another thing: your intent matters. If someone does sue you, and they can show that you willfully intended to make a "clone" of their product, they have a much stronger case. Hell, this Slashdot story could very well be used against you as evidence. :-P So if you are worried about that, I would avoid making reference to the original work in whatever materials (i.e. websites) you release along with the game.
You mentioned you don't want to hire an expensive lawyer...
I'd recommend contacting any law schools in your area to see if they have any clinics that could provide you with free representation. I'm currently enrolled in an IP clinic at a DC law school, and your project sounds exactly like something myself and other clinic members would love to handle.
The pros:
-Free representation
-You should have a clear understanding of where you stand on the issue once their analysis and recommendations are completed.
The cons:
-You'll be dealing with law students interested in the materials, but figuring out a lot of this stuff for the first time.
-Your representation will depend on the clinic's schedule and availability. For example, I know our clinic professors have more projects in their queue than students to work on them - so it may take some time.
Obviously there are a lot more pros/cons than listed, but thought this may serve as a possible solution for you.
Good luck.
Here is one example of trademark issue from "nobody". I made a iPhone twitter client called Nukkad (URL: http://bit.ly/Z0uaY). It has capability to use Google Translate to inline translate tweets. It used to be called Twitter World. First I heard from Google. They wanted me to put up "Translated by Google" at the top of every screen which includes translation. Next I heard from Twitter, they wanted me to change the name. All issue were resolvable. I am nobody hardly make any money, but yes the big Corporations do go after nobody even if you are not making any money.
just because they don't have a trademark on it doesn't mean they don't have the copyright. by law and by default the original creators own the copyright simply by being able to prove they created it on a certain date. you really only get a trademark if you want to make sure everyone knows you own something. so keep in mind they absolutely own the concept, the question is if they would want to sue you or if anyone is even around to do it.
Develop it through Tor, or any other anonymizing network. Then it cant be shut down no matter what the law says.
I've followed various game remakes/mods for a while now and I've been trying to avoid a number of flaws they usually pull.
I'm about a year in (seriously) on a 2 year long planned indie remake of a fairly popular game from about a decade ago. I'm not doing a clone of the game so much as a reimagining/homage to the original. Obviously it'll be free (the whole thing is being built on top of Source SDK) but I've gone out of my way to:
1) not reference the name - but make it similar enough so that people can make the connection. Right off the bat, people want to make a Goldeneye or Dragonball Z clone, or some such thing. Obviously, take the name will bring people in, but you bring EVERYONE in, including the IP holders. Some entities are cool (ie: Valve seems pretty estatic over the WIP Black Mesa remake of the original HL). Most others are not (Nintendo is a beast over their IP for example).
2) not use any resources from or closely resemble anything that could be pulled from the game. I'm using Source SDK and one of the things I've been doing is (as much as possible) using all stock art/models from the HL2/L4D1&2 games. It's not a lazy thing (though it helps - have a background in art&3d, so knowledge/ability isn't an issue), it's a CYA thing - noone can say I imported a model/texture/sound from the original game if very few additional elements are brought in. The downside though is that yes, you will need to own all of those games in order to use the mod. Meh, noone has a gun to the head, etc...
3) not clone the original game. I'm trying to keep the atmosphere and general principles established by the original - ie, the stuff that made my like the game in the first place, but nothing is directly lifted (esp the story, names, etc - though of course everything will be similar). Before I even sat down and started working seriously, I spent 2 months researching and fleshing out my ideas to make things tweaked and original 'enough'.
4) not charge anything - even donations. If I can use this as resume fodder that's cool (which I doubt since I'm not really interested in working in the game industry - had a coop position back in the day, it was enough for me), but I have really nothing I want to gain from this other than showing my love of the original.
Good luck!
get him to set up two companies: one incorporated in Elbonia that has all the assets, and a shell development company with all the liabilities. Don't contest any lawsuit, just smile, punt the shell company into bankruptcy, and set up another one.
This may keep your creditors at bay for a time.
It will make you a "person of interest" to the IRS and others.
The geek as criminal mastermind is an interesting thing to contemplate.
In the movies, of course, he is the lard ass who shuts down the fences before he makes his escape from Jurassic Park.
I wrote a brief review of copyrights and games a while ago; but you have to make sure that the following points are taken into consideration: Whilte the rules of the game cannot be copyrighted, the look and feel, name, code and images can be. Trademark and Passing off may also be a problem if you're using a registered name or passing off as one. As a rule, try to be transformative and add additional value. However, you should consult a lawyer. If your lawyer is experienced in the field, it should take him no more than an hour or two to say "go / no-go" for a simple game. [Decent disclosure, I am an Israel lawyer, and I teach Game Development Law in Beit Berl College, Israel]
Unlike some here, I am a lawyer. That said, most lawyers will shy away from giving you legal advice on a public forum like this. There are several reasons for this:
1) A good lawyer will need to see the original game and your game before being able to give any advice on this issue. What you see as substantially similar, might not be or may be similar to a lawyer.
2) Explaining to you every element and then having you interpret it incorrectly will put the lawyer in a position of liability if you are wrong and get in trouble.
3) Everyone else that reads the lawyer's advice will probably interpret it wrong and the lawyer will get it wrong also.
That all said. It does not have to be "extremely expensive" to have a lawyer figure this out. In fact, contact your local law school and see if they have an IP clinic that can help you out with this question. A lot of law schools do and would be glad to give you this service for low if not no cost.
Furthermore, if I was in your shoes, I would be very careful about infringement and the best advice given to you so far is to contact the current copyright holder and ask for permission. You will be surprised how often copyright holders will nicely grant permission depending on your circumstances. The person who advised you to not ask because that will give you plausible deniability - because "I did not know I was infringing your honor!" - is full of crap. Copyright infringement does not have a clause that requires knowledge and your awareness of the original game (as shown here and by the similarity of your games) will establish that already. Asking the copyright holder will, if anything, show you made a good faith effort to obtain permission - even if you did not need it.
Good luck, and in the future remember that free legal advice is worth what you paid for it.
PS: You are correct, I am not going to identify myself because I do
I thought you were going to reach for a car analogy here...
I really do hope it's a remake of Castles of Doctor Creep, right? Please include an editor!
Katamari Damacy was a breakthrough in gameplay during the PS2 era.
Katamari series is a revival of Bubbles in a bigger environment.
If you haven't started working on it yet, figure out who owns the IP on the old game, track them down, and get permission. IN WRITING. If you can get it, you're home free and can safely not concern yourself with future legal challenges on the matter. If you don't get permission, then find some other idea to steal... or come up with your own. However, if you've already completed the game and you're just trying to find the safest way to release it without getting sued... well... good luck.
-Restil
Play with my webcams and lights here
You can be sued at any time for almost anything.
I've been threatened with suits over using my last name in a business context. Turned out to be bull, but it still cost me nearly $10,000 to find out that they couldn't win a suit like that. But, they can still sue. To begin your education look up the term SLAPP (http://en.wikipedia.org/wiki/Strategic_lawsuit_against_public_participation).
They main reason they won't sue you is because you don't have anything they can take. OTOH, if you have a house and maybe some savings and maybe a salary they can garnish then they may sue you anyway. OTOH, if you have no money they may sue just to bankrupt you. Yes. companies do that sort of thing. They can't get anything from you, so they bankrupt you just to make a point. In cases like that you have little legal recourse. Gunning "them" down in the street might sound like fun, but after you think about it for a while you will most likely talk yourself out of it. :-) Look up "court costs" and the ways the courts are allowed to collect them.
Seriously. If you can't afford a lawyer you can't afford what you are doing.
My advice, take it for what you paid for it, is stop right now. You have already admitted in public that you realize you are breaking the law. That is what your posting on /. did for you. So just stop. Find a different game, or design your own game. Don't take this any further and please do not mention the name or even the kind of game you are doing on /. or anywhere else on line. You have already removed any possibility of defending yourself from a suit. You've lost.
Ok, now take a deep breath...
If you want to keep going, or if you ever want to do something like this again, pay for a couple of hours of legal help. Ask the lawyer how you would go about doing something like what you are doing. *Do not ask him if it is legal.* Ask how to do it legally. Very different questions with very different answers. Then ask him what you can do to be able to continue your project.
Over the last 30 years IP law has become a hobby of mine. I have taken a couple of classes on the subject, read many books and many more articles. I've even gotten to the point where I read SCOTUS rulings for fun. I've even written contracts that passed lawyer review without even having a comma changed. But, notice that I paid a lawyer to review it. I would never even think about doing what you have done without talking to a lawyer first. Even if I felt confident enough in US law (where I live) I know that I know very little about the laws in the rest of the world. Even the US has more than 50 jurisdictions...
Stonewolf
I remade an old game and called it something else. After a few months I was contacted by the owners of the original IP and asked to stop selling it. I think I could win if I really fought it, but it's certainly not worth it for the few bucks I got per copy.
I'm really glad to see your sane and reasonable postings. Please keep it up.
If you are an example of horrible pedantic bitches, then the world needs millions more just like you.
Of course, I'm biased... I've been happily married (32 years) to a wonderful lady who also describes herself as a pedantic bitch.
Stonewolf
Asking for permission or lawyering up are good options. But if you just want to put it out there do this:
First, rename your game. Make it something completely unrelated to what the old one was called.
Second, change the play a bit more and for your sake change the cut scenes and art work so as not to look like the old game. If they used an old west theme you go with art deco.
Third, once you've completed your changes then only copy off the finished game from your computer and then melt the old drives on your computer into aluminum ingots and melted slag. Or use shred: less fun but not so messy.
Fourth never use this account again. Ever. Better yet change your name and move to a different state. If anyone knows you by sight and knows you used this account then consider plastic surgery.
If the owners of the game ever decide to sue you and they have any way to prove that you made your game from their game they will claim derivative rights or some other ass puckering term to get what they can from you. if you do make inquiries for permission they will want to see your game so they will know what to look for if you decide to release it anyway after they deny your request. If you must make inquiries for permission then frame your questions as though you are considering making this game and ask what would their response be to a hypothetical game that you are not yet working on: use an alias and go through a law firm so that you may be insulated so that if they say no and you want to do it anyway then they don't have your address and real name and the law firm has the right to claim confidentiality to keep your real contact information hidden.
One thing I would encourage you to do, if you have not already, is to create a corporation to "handle" all of the development, distribution, etc, of your games. If done correctly, and you are ever sued, then the most you can lose if whatever assets are held by the corporation.
Notice what I said about correctly. You have to go through the motions -- don't get lazy. If you don't follow the rules, then a plaintiff can "pierce the veil" of your corporation as a sham and still get your personal assets. Bye bye house.
If your state allows it (and most do these days), I would form a Limited Liability Corporation (an LLC). This can usually be done by filing some paperwork and a couple hundred bucks with your state attorney general's office.
You set yourself up as head of the corporation and the corporation pays you as an employee. The LLC is nice because there is no double taxing (e.g., it isn't taxed first to the LLC and then to you as an employee.) In terms of maintenance, just make sure the LLC has its own bank account, you keep a reasonable balance of money in it (so the court won't say it is an underfunded sham/shell), you pay bills in its name, etc.
As with most things in the law, you can do this pro se (yourself), if you're bright and things like this don't confuse you. Read up on it first, of course. I, being an attorney, do recommend that you have your attorney do it for you, to make sure everything is done right. It isn't hard and shouldn't cost you an arm and a leg. If you have any family members who are attorneys, ask them for a favor. Or if you know any young attorneys looking for a few bucks, see if they'll do it for cheap too.