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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.
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.
The product contains MySQL[tm] under GPL and Gemini. Gemini is statically linked to the MySQL code. This means that Gemini needs to be under GPL as well, but it is not.
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.
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
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
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?
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."
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