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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.
This is very true. I've been reading a lot about law recently, because it's become pertinent to my everyday life. In this case, and ALL legal cases, the law is SUPER crazy complex. First you need to read up on rules governing this stuff, then laws, then amendments to those laws, then you have to read a bunch of court cases on the matter, and then you have to have the legal background to understand how all of those apply to your specific situation.
The summary author really only has one of two choices: a) pay a lawyer, or b) ignore the legal consequences and only deal with them if you get sued.
Very simply, that's the plain ugly truth hanging-all-out-there-naked version of every question of, "what should I do about law X, or law Y"... well, unless you're in Arizona. Then there's an option c) pay someone who is willing to do the research for you, even if they're not a lawyer, but understand their qualifications before trusting their evaluations. Outside of Arizona, no one can even give you any clues about your legal liability without running aground of questions of practicing law.
WARNING! This girl exceeds the MAXIMUM SAFE standards established by the FDA for BRATTINESS
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).
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