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?"

Comments

Laws have become horribly, horribly complex

[bcmm]

How do I make sure I'm legally in the clear without hiring an expensive lawyer

Laws have become horribly, horribly complex. I'm not sure any of us can do that for anything we do.

Re:Laws have become horribly, horribly complex

[snowgirl]

How do I make sure I'm legally in the clear without hiring an expensive lawyer

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.

Re:Laws have become horribly, horribly complex

[adamrut]

Gameplay in my clone is very similar to the old game

Pretty much all games have used and extended ideas from previous games, copied user interfaces, themes, etc. So I don't think you'd get into trouble making something similar (at least a token effort should be made to put some original styling to the game).

and my clone even has a very similar name

but I think this is the bit where the pants get sued off.

Re:Laws have become horribly, horribly complex

[Moryath]

Remember: the difference between a "rip-off" and an "homage" is whether or not the other side has a goddamn sense of humor.

Re:Laws have become horribly, horribly complex

[TheRaven64]

Often this is difficult. A lot of games made in the '80s, for example, were made by individuals who are not easy to trace or by small companies that have since ceased to exist. The copyright may have been transferred a dozen times through bankruptcies or asset sales and the current owner may not even be aware that they own it. They may transfer it again after the game is released and the new owner may notice that they can make some money by suing...

Re:Laws have become horribly, horribly complex

[Profane MuthaFucka]

Don't ask permission. When you're in front of the judge, they're going to pull out a file folder with your call transcript in it. They're going to argue that you KNEW you were infringing, when you asked permission you were TOLD NO, and you INFRINGED on their rights anyway. The judge will be impressed, and you will be ass-raped if you're lucky.

Don't ask any permission. Just do it and have a good lawyer ready. And don't talk to anybody who calls about infringement. Tell them to talk to your lawyer.

The real question: WOULD they sue?

[Senes]

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?

Re:The real question: WOULD they sue?

[Chris Mattern]

This would land on the desk of a company lawyer, whose thought processes on the matter would be: "If I grant permission and something bad comes of this guy cloning the game, I'll get blamed for it. If I grant permission and this guy makes a lot of money cloning the game, I'll get blamed for the company not getting that money. If I don't grant permission, I can't get blamed for anything. Which do I choose?"

You can't

[dreamchaser]

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.

Sounds high risk

[williamhb]

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).

They can only sue you for money that you have

[Rogerborg]

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.

Do your research

[lewster32]

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.

Stand on your own

[Kjella]

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".

Let me present a third choice

[mrjb]

a) pay a lawyer, or
b) ignore the legal consequences and only deal with them if you get sued.

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!

Re:Let me present a third choice

[Minwee]

If you're dealing with a company like Atari (who? yes, they still exist!)

No, they don't. Atari as a company ceased to exist in 1996. The name was picked up by Hasbro in 1998 and then by Infogrames in 2001, but apart from the name, logo and ownership of a truckload of copyrights the organization currently calling itself "Atari" has absolutely nothing in common with the company Nolan Bushnell founded back in 1972.

This isn't a question of Theseus' Ship sitting in the harbour at Athens and being slowly replaced board by board until there is nothing left of the original, it's more like Theseus taking his ship out to sea for a wild party, dousing it with gasoline and burning it to the waterline, only to have Menelaus build an entirely new ship in Sparta with the name "Thezeus" on the prow two years later and then sailing it to Mycenae and selling it to Agamemnon who turns it into an amusement park where people pay large sums of money to play on half-finished rides and be beaten with sticks when they complain.

The modern day Atari is the ship that Orestes built after termites destroyed that one. And it has trouble floating because he ran out of wood before the job was done. The Mycenaean QA department insists that the boat is good and that there is no need to patch it as any sinking problems are clearly the fault of the end users.

Re:Risk it

[Zadaz]

"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."

This is entirely false and shows the problem with asking for legal advice from random strangers on the Internet. If a company feels that you're damaging their trademark, image, etc, they'll sue you for damages, even if you have never made a dime. And they can win money you don't have.

If you have a question for a lawyer and you can't afford one, stop what you're doing. It's that simple.

The OP says:

" The original game has no trademark or software patent associated with it..."

How do you know? Did you just type "obscure game" into the USPTO's web site? Or did you have someone who knows what they hell they're doing to a trademark and patent search. I suspect it's the former because the latter costs money, which you complained about not having, and can be done by an attorney who could also answer your questions.

The OP continues

"...my clone isn't infringing on the original's copyright in any way (all the programming and artwork is original)"

And this is why you're in deep crap, you have a limited and incorrect idea of what copyright is.

Oh, and hey, you're not making an iPhone game are you? Because if you are, when you go to publish your game you'll see the checkboxes for all those other countries, so hey, why not publish them there too? Bigger audience, more money, right? Or at least bigger potential legal risk. Copyrights, trademarks, patents, and intellectual property law are different in different countries, and lately the US has been willing to cooperate with litigious foreigners.

Note that I'm blindly assuming you're in the US. That's because you left the all important "what jurisdiction I'm in" information off your question. Just another sign of your ignorance and why you really really need to find the money for a lawyer.

You don't...

[osu-neko]

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.)

Re:Risk it

[Icarium]

If you have a question for a lawyer and you can't afford one, stop what you're doing.

That has to be the saddest statement I've read in a long time.