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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?"
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?
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.
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
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
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.
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.
Fascism trolls keeping me up every night. When I starts a preachin', he HITS ME WITH HIS REICH!
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.