Avoiding DMCA Woes As an Indy Game Developer?

androidstevep writes "I was just on the receiving end of DMCA takedown notice for my game in Android Market, 'Super Pac.' Namco Bandai have filed the notice with Google, claiming breach of copyright of their game 'Pac-Man.' Although my version is obviously inspired by the original arcade game, no original artwork or sound has been copied. The problem from my point of view is that the DMCA notice is not clear where or why the breach is alleged. My guess is that maybe the name is too similar, although I did a trademark search for 'Super Pac' before release and came up with nothing. Furthermore, Google have disabled my access to this app, presumably as required by the DMCA, so I am unable to even make whatever modifications would be required. As a part-time developer with limited means (i.e. can't afford expensive lawyers), but willing to make best efforts to avoid legal issues, how does one negotiate what seems to be a difficult minefield of trademarks, copyrights and DMCA? Does anyone have tips in this area?"

Comments

Try having an original idea

[Animats]

"Instructions: Based on the classic arcade game Pac-Man, the aim is to eat all the pills in the maze, while avoiding the four ghosts. There are also power-pills available in each corner which temporarily turn the ghosts blue, and more importantly, edible! Bonuses are awarded for eating ghosts. Fruit bonuses also appear and can be eaten for additional points."

Of course you got an infringement notice.

Re:Try having an original idea

[Anonymous Coward]

obviously, google itself is not worried: http://www.google.com/pacman/

Re:Try having an original idea

[Anonymous Coward]

Probably because Google actually licensed Namco's game, unlike this douchebag who just stole it.

Re:Try having an original idea

[hedwards]

I'm sorry, but that's not a copyright violation and it's certainly not a violation of the DMCA. There is however a pretty blatant trademark violation, assuming that the owner has maintained the mark.

This is a pretty blatant abuse of the DMCA unless the OP used some of their code or images to do it. The proper thing is to file the paperwork with Google affirming that there is no copyright violation.

If the OP has the funds to do it, he could also file suit against Namco Bandai for violating the requirements under the DMCA for filing a take down notice. There is a defined situation for cases where the party filing the takedown notice does so in bad faith that allows for damages. Personally, I wouldn't bother unless I was making a living on the product as it's tough to actually get enough money for the violation to make it worthwhile.

Re:Try having an original idea

[Anonymous Coward]

The underlying assumption is that the current laws of copyright trump the realities of human creativity. Your argument would have prevented people like Beethoven and Picasso from reaching their potential. Don't bother whining about the validity of such a statement made without sources; if you can insist that stupid laws should be followed, I can insist that stupid people do their own research.

Re:Try having an original idea

[Anonymous Coward]

I have one. It's about a guy, named Marty O (and his brother Louis), who is an exterminator. He can run around and go through tubes and hit ceiling tiles with his head to release dollar bills and other power items. There's a queen, and some fungus people, too. I will be releasing it as Super Marty O Brothers. Does anyone see any problems with this?

Re:Try having an original idea

[thue]

Erm, no. Gameplay isn't copyrightable, so what in that description makes you think it is a copyright violation? http://www.wisegeek.com/how-do-i-copyright-a-game.htm

Re:Try having an original idea

[moortak]

Why isn't it a copyright violation. He used their characters, their name (SuperPacman came out in 1982), and mechanic. This about as much of a derivative work as you get.

Re:Try having an original idea

[Anonymous Coward]

I was rooting for your cause until I clicked on your website. "Inspired by" Pacman? Try completely ripping it off.

Re:Try having an original idea

[camperslo]

Instructions: Based on the classic arcade game Pac-Man, the aim is to eat all the pills in the maze...

I'd suggest a new variation, zombies eating lawyers.

Re:Try having an original idea

[KDR_11k]

There is a copyright violation. Look at the screenshot, everything has been designed very closely to Pac-Man and clearly falls under the derivative work rules.

Re:Try having an original idea

[icebraining]

I have to agree. I love extensions of game concepts, like Plasma Pong, which unfortunately also got ban-hammered for trademark violation. But I don't see any improvement in this game over the original Pacman.

Re:Try having an original idea

[Anonymous Coward]

Maybe he used a clean room design.

Re:Try having an original idea

[Anonymous Coward]

My exact thoughts upon seeing the title question: "Hmm... Why would a developer of original games even have to worry about that?" Then I read down, and realized that there is nothing original about this game. Seriously, copying one of the most well known games ever made is a great way to learn about everything that goes into making a game, so why not then take that knowledge gained, and put it into making something new and original. Show your friends your Pac-Man clone and say "Isn't it clever what I figured out how to do?" but don't try to sell it.

Re:Try having an original idea

[icebraining]

It's an obvious trademark violation, I'd say. And if it is, they could have sued him immediately instead of sending a notice, so I'd say he was lucky.

Re:Try having an original idea

[Anonymous Coward]

Why can't he just change the colors?

Re:Try having an original idea

[thue]

I agree that the name itself is a trademark violation.

Re:Try having an original idea

[Xest]

Yes it is a copyright violation.

It's a copyright violation because he hasn't simply copied the game concept, but has largely copied the art and the name too. It would be allowed for example to create a Pacman clone, make the Pacman character green, maybe give him some red eyes or something, replace the power pills with energy drinks and replace the ghosts with aliens, then call the game "Green Gobbler" or whatever- this wouldn't be a copyright violation, but to outright copy what pacman is and is about- a yellow circle with a mouth chasing ghosts and then also putting Pac in the name absolutely is a blatant copyright violation.

I speak from experience having research it extensively before after having been in precisely this situation. Many many years ago, I worked on a clone of Teamfortress and after Valve aquired it and the IP they requested a shutdown of our mod- they had every right to do this because we hadn't simply copied the Fortress section of the name, but we had copied the class names and so forth too even though the artwork was original- we had copied the fundamental IP. We could get round this by simply changing some class names, and changing the mod name to remove Fortress, this was enough to satisfy Valve themselves even, but the fundamental point is if you're going to copy not just the concept, but the fundamental IP as well (i.e. characters, story, that sort of thing) then yes, it absolutely is a copyright violation.

You may not think it should be a copyright violation, but you're completely wrong to suggest that it is not. This is why people usually put IANAL in there post (IANAL btw!) because they know full well they're simply stating what they think may be true, but which possibly is not. Your advice is dangerous because you're telling him to fight against legal notice which he almost certainly has no chance of succeeding with and if he does take it all the way to court, it would probably destroy him as he really does not have a leg to stand on.

So to the person asking the original question in the summary- if you want to know what you did wrong theres your answer. The worst thing you can do is fight this, because legally, you seem to be completely in the wrong, and will hence almost certainly lose. There is no DCMA abuse here, beyond the fact that the DMCA is inherently abusive in it's very existence.

Re:Try having an original idea

[Tharsman]

What about character design? Because after following the link the article provided, I can't see a single difference between a Pac Man screenshot and Super Pac. Exactly the same maps, same ghost designs and same main character design.

That is not to mention the name itself, Super Pac, may not be complete but anyone can take that as an abreviation to Super Pac-Man.

Honestly, I feel no sympathy for these situations. How can you protect yourself? Inovate. At the very least change the look of the characters, and would also be nice if you changed the map layouts to be original and added new mechanics. Make enough changes so that no one that sits to play the game without seeing the title can say "Oh, it's Pac Man!"

Re:Try having an original idea

[Surt]

Doesn't help when the actual appearance of characters is so similar. Remember: a significant fraction of the copyright laws were written specifically to protect Mickey Mouse from lookalikes. You can't just make a pacman game with characters that look just like pacman characters, even with a clean-room design. It will still be a copyright violation.

Re:Try having an original idea

[morgan_greywolf]

Actually, assuming that Namco Bandai is claiming copyright on Pacman's visuals -- and yes, there is such a thing, and no, you aren't limited to trademark protection on visuals -- it very likely is. And no, just because he didn't use the original images, the screenshots are definitely close enough to the original to establish a visual similarity.

And just in case you think that image elements like the shape of Pacman and the ghosts and indeed the layout of playing board aren't copyrightable, try putting a Mickey Mouse -- whether you created such yourself or not -- on the sign for your place of business and watch how fast Disney's lawyers educate you as to the true legalities of visual copyright.

Re:Try having an original idea

[Surt]

It's not in the description, but if you went and looked at the page it's clear that he's making a lookalike, and the copyright laws were heavily invested in by disney to prevent exactly that, and the law has come down clear and hard against Mickey Mouse lookalikes.

Re:Try having an original idea

[Anonymous Coward]

Shouldn't that be lawyers eating zombies?

Re:Try having an original idea

[fishexe]

Why isn't it a copyright violation. He used their characters, their name (SuperPacman came out in 1982), and mechanic. This about as much of a derivative work as you get.

It's not a copyright violation to copy things that copyrights don't cover. Copyrights don't cover the characters. Fan fiction is perfectly legal, for example. Copyrights don't cover the name (that's a trademark matter). Copyrights certainly don't cover the mechanic. You can make a game that plays *identically* if all the graphics, text, and sounds are original, and no code is copied. It's not about how derivative it is, it's about whether the things it allegedly copies are even under copyright.

Re:Try having an original idea

[kimvette]

That would be a trademark infringement not copyright infringement, so Namco should used a vehicle other than the DMCA. The DMCA is for copyright infringement, not trademark infringement.

Re:Try having an original idea

[Pharmboy]

try putting a Mickey Mouse -- whether you created such yourself or not -- on the sign for your place of business and watch how fast Disney's lawyers educate you as to the true legalities of visual copyright.

You don't need to even do that. Just do some research on how many day care centers have received threats of lawsuits for having Disney-ish characters painted on the outside of their buildings. Even on characters that Disney doesn't actually own, ie: Snow White (penned by the Brothers Grimm), they own their own interpretation of the character and the visuals.

Re:Try having an original idea

[NoSig]

It's not that stupid laws should morally be followed, it's that you are going to be in a lot of trouble if you don't follow them.

Re:Try having an original idea

[zakeria]

Because he says so, because he's a typical slashdot bull shiter!

Re:Try having an original idea

[Yvanhoe]

Believe it or not, clones are not illegal.

Re:Try having an original idea

[fishexe]

Yes it is a copyright violation.

Having actually studied copyright law, I have to say it's not so clear as you make it out to be.

It's a copyright violation because he hasn't simply copied the game concept, but has largely copied the art and the name too.

See, now here is an interesting question. How close does a copy have to be to be a copy?

It would be allowed for example to create a Pacman clone, make the Pacman character green, maybe give him some red eyes or something, replace the power pills with energy drinks and replace the ghosts with aliens, then call the game "Green Gobbler" or whatever- this wouldn't be a copyright violation, but to outright copy what pacman is and is about- a yellow circle with a mouth chasing ghosts and then also putting Pac in the name absolutely is a blatant copyright violation.

That's questionable and I think in court you would have a jury question. Is "what pacman is and is about" really about what color he is? Maybe what pacman is about is a circle with a wedge-shaped mouth that eats dots, regardless of color? Maybe what pacman is about is something that dodges ghosts and eats small things in a maze, regardless of what those things are? (not to mention, the name ("Green Gobbler" vs. "Super-pac") is completely irrelevant to a copyright claim because that's a trademark issue)

I speak from experience having research it extensively before after having been in precisely this situation. Many many years ago, I worked on a clone of Teamfortress and after Valve aquired it and the IP they requested a shutdown of our mod- they had every right to do this because we hadn't simply copied the Fortress section of the name, but we had copied the class names and so forth too even though the artwork was original- we had copied the fundamental IP.

Well, you had copied text from the original product. That's what the class names are. I don't know how "fundamental" that is if the primary value of the product is the gameplay, though.

We could get round this by simply changing some class names, and changing the mod name to remove Fortress, this was enough to satisfy Valve themselves even, but the fundamental point is if you're going to copy not just the concept, but the fundamental IP as well (i.e. characters, story, that sort of thing) then yes, it absolutely is a copyright violation.

"story" is typically not held to be the fundamental IP protected by copyright. Copyright protects specific images and sequences of words, not the underlying ideas behind them. You can publish an identical story written using completely different words and potentially not be in violation of copyright. In your example, it doesn't sound like you really changed much at all, like characters or story; you just changed the words attached to certain things. How is that different from changing one yellow circle to a different yellow circle?

You may not think it should be a copyright violation, but you're completely wrong to suggest that it is not.

Again, I think the issues are more complicated than you think they are.

This is why people usually put IANAL in there post (IANAL btw!) because they know full well they're simply stating what they think may be true, but which possibly is not.

Yeah, you might want to take your own advice.

Your advice is dangerous because you're telling him to fight against legal notice which he almost certainly has no chance of succeeding with and if he does take it all the way to court, it would probably destroy him as he really does not have a leg to stand on.

I think he does have a leg to stand on. Remember when Apple sued Microsoft for copying the "look and feel" of Mac OS into MS Windows?? The judge said "look and feel" was not copyrightable and threw the whole thing out. If the

Re:Try having an original idea

[Anonymous Coward]

He should make another version with the main character a vagina and the monsters penises. Let them publicize that for him.

Re:Try having an original idea

[fishexe]

It's an obvious trademark violation, I'd say. And if it is, they could have sued him immediately instead of sending a notice, so I'd say he was lucky.

Yeah, he was kind of an idiot to refer to the main character as "Pac-man" in his descriptions of the game for example on the website:

Super Pac V1.05 released - Increased speed of Pacman

even if there is no copyright violation, "Pacman" and "Pac-man" are obviously trademarked, so you're not supposed to use them to refer to your product or part of your product. Even if there is no copyright violation, the trademark violation is clear as day.

Re:Try having an original idea

[Lunix Nutcase]

What is "creative" about making a clone of Pacman? It's funny how often on here people whine about copyright laws stifling creative and yet the things that are being held up as being stifled are clones of other works.

Re:Try having an original idea

[pyalot]

You cannot copyright game mechanics and game design. Period. Plagiarism isn't isn't copyright infringement. Period. It also isn't trademark violation, since trademarks apply to names and logos, not to design. Period.

Re:Try having an original idea

[Anonymous Coward]

sounds like a Gianna Sisters ripoff to me

Re:Try having an original idea

[Tablizer]

Couldn't you have taken the general concept and shuffled things around a bit so that doesn't copy so much of Pacman? For example, the muncher could be Rush Limbaugh chasing Oxycontin pills and corporate ad money, while progressive bloggers challenging his claims are the "ghosts".

Re:Try having an original idea

[noidentity]

Wow, that would be a really original game. I think you should try to find some artists and programmers and make this happen. It feels just like a retro game!

Re:Try having an original idea

[aevan]

then the Pill empowers you, and you turn around and chase the ghosts? I can actually see that appealing to certain people

Re:Try having an original idea

[Animats]

Believe it or not, clones are not illegal.

Nope. That's been litigated, for a PacMan clone, no less. See Munchkin, 1981, the PacMan clone for the Philips Videopac. Atari sued Phillips and won.

Re:Try having an original idea

[dbug78]

I'm not comfortable with the idea that basic geometric shapes can be copyrighted. I don't know if they can be or not, but they sure as hell shouldn't be. At least Mrs PacMan has a bow and some lipstick... PacMan is just a yellow circle.

I thought it was bullshit that Bizarre Creations enacted a takedown of Grid Wars a few years back, for example. The gameplay of both Geometry Wars and Grid Wars was done 25 years ago in Robotron and the "characters" are all basic geometric shapes. Grid Wars had a different (and superior) ruleset, so what exactly where they violating?

Re:Try having an original idea

[HungryHobo]

Actually characters are copyrightable under certain circumstances.

As indicated above, a character can exist merely by its textual description of that character. Who he or she is, what he or she looks like, the manner of behavior and other such characteristics can all be described, in writing, by the author. As such, the character may be protected under copyright law as part of the text of that work (see discussion below). Since one of the rights of copyright is the right to make derivative works based on the work, if there is such protection, the author (or whoever is the proprietor of the rights in and to the text including the character) retains the right to make further use of that character in such derivative works.

                However, the character as described textually has to be protectable by copyright, meaning that it must have sufficient originality to satisfy the requirements of the statute. If the character as described is merely a "stock" character, there may not be sufficient originality to make the character protectable.

http://www.ivanhoffman.com/characters.html

The character has to have some depth (not stock soldier number 3 etc)
but characters are very much copyrightable as are fictional worlds.
If you don't think the fictional worlds are then try commercially publishing a book based in the Star Trek or Star Wars universe and see how long it takes to get sued.

Fanfic sometimes simply gets ignored because many authors started out themselves writing fan fiction and they don't want to stop it.
Some authors hate it with a passion.

The rules of a game cannot be copied.

You can make a game where a character goes around eating dots and being chased by ghosts which is identical to packman in every way as long as your character doesn't look too much like the origional though it might depend on whether the pacman character is significant enough to fall under copyright given that it's simply a circle with a wedge cut out.

but if you closely copy the art(like drawing the character yourself but making it almost identical), characters, story or world(assuming it's significant enough to be covered by copyright and I'd guess that the simple maze in pacman probably wouldn't be enough) then you can fall foul of copyright.
And as for names avoid anything that is too close to the origional or contains part of the origionals name.

Re:Try having an original idea

[dbug78]

Maybe he should change it to a fox that eats roosters while being pursued through a maze by a farmer and family. He can call it Cock Gobbler.

Re:Try having an original idea

[bugi]

Children being chased by lawyers.

Redo the art (including sound) with that theme. Then you'll not only be free of trying to balance on the edge of infringement, but also have some claim at satire.

Re:Try having an original idea

[theArtificial]

The same people have no respect for works except their own which was faithfully recreated step by step from a tutorial. Upon completion they show friends and proudly exclaim "they did it!". Achievement unlocked?

Re:Try having an original idea

[Homburg]

Copyrights don't cover the characters. Fan fiction is perfectly legal

Really? I'm pretty sure copyright does indeed cover characters, and the legal status of fan fiction is much more uncertain than you suggest. Even those who believe fan fiction to be legal don't, AFAIK, claim that fan works don't involve the copyright of the original work at all; rather, they claim that fan fiction is fair use of copyright work, because it is transformative.

(Though this doesn't really matter to the original I don't think Pacman has "characters" in a sense that could recieve copyright protection)

Re:Try having an original idea

[Anonymous Coward]

Why are people who have no idea what copyright covers continually getting modded up here? You'd think this crowd wouldn't be so ignorant on this matter by now.

Re:Try having an original idea

[Anonymous Coward]

"Kind of an idiot" - Fisshexe

I'm no more of a fan of Bill O'Reilly than you are but I like selective quoting too, especially when humorous.

Re:Try having an original idea

[simon0411]

No, no, no. A character *image* and *name* are trademark, when used in a trademark capacity. The fictional character itself is *absolutely* covered by copyright... the character being not just the design, but his behavior, personality, history, actions, the totality of his fictional existence. This is why one cannot take Harry Potter and just create an original story around him... that would still qualify as a derivative work, which is under copyright protection. And because the book is a series, the title "Harry Potter" qualifies for trademark protection. In this case, it is completely relevant to look at the characters, because when taken as a whole (characters, map design, story concept, medium), it is clear this is a copy of Pac-man. We may disagree as to whether the amount of copying rises up to the level of infringement, but there is a clear copyright infringement claim to be made here. The DMCA is appropriate.

Re:Try having an original idea

[simon0411]

Also, fan fiction is derivative work, thus a copyright holder absolutely has the right to sue a fan fiction writer for copyright infringement, and will likely prevail. However, such forms of IP infringement are absolutely contingent on the copyright holder taking action (unlike, say, counterfeit products), and most choose not to do so. It is completely at their discretion. Just because this doesn't happen often does not mean the legal vulnerability does not exist. We should be clear about this.

Re:Try having an original idea

[kumarei]

You have no idea what you're talking about. Characters are copyrightable, and you don't even have to use the exact character to infringe. Just look at Neil Gaiman's copyright case against Todd McFarlane for a recent example. As far as I know, there have been no broad testing cases for fanfiction, but if there were, any defense would rest upon Fair Use; the fanfiction is clearly in violation of copyright, it would be up to the defendant to prove that 1) they had no profit interest, and 2) they were doing no harm to the IP of the original creator. Even then, they might not be successful in arguing on that vein. The non-profit clause is actually meant to protect non-profits.

Re:Try having an original idea

[sribe]

I think he does have a leg to stand on. Remember when Apple sued Microsoft for copying the "look and feel" of Mac OS into MS Windows?? The judge said "look and feel" was not copyrightable and threw the whole thing out.

No, that's not at all what the judgment was. Instead, it was: "look, you dumb****s, you signed a contract granting Microsoft the rights to do this!" Copyright of look and feel has been upheld in multiple cases.

Re:Try having an original idea

[kumarei]

Just what I was wondering. How could anyone claim this isn't copyright violation and be voted up? You'd have to be completely ignorant of copyright to defend this person.

Re:Try having an original idea

[Anonymous Coward]

Especially calling it Super Pac!! I mean Super Pacman was one of the official pacman games for ROFL sakes.

Hint: How to avoid DMCA takedown notices stop stealing peoples games and trying to sell them!

Once you have made a game that is even somewhat original then complain.

Re:Try having an original idea

[Reed Solomon]

There you go, turn the ghosts into different colored cartoon spiders, turn pacman into the green gobbler, call the game green gobbler, inspired by pacman, and nobody could possibly sue you, except marvel comics maybe.

Re:Try having an original idea

[Anonymous Coward]

Replace the pills with false teeth.

Re:Try having an original idea

[hitnrunrambler]

There's a lot of good advice all over this page about originality that both can protect a developer legally and just make for a better quality.

In fact this whole event could be a great source of inspiration. Imagine a large yellow © navigating through mazes.

Super IPa©

"Instructions: Inspired by arcade classics and based on corporate greed! You control IPa© (Intellectual Property & Copyright).
The aim is to eat all the $ in the maze, while avoiding four Independent Programmers. There are [DMCA] power-pills available in each corner which temporarily turn the Independent Programmers into Frightened Infringers. Chase them down and devour them! Constitutions also appear and can be eaten for additional points.
Thank you to Bamco Nandai for the back story and to Rambler for the satire."

ps. if anyone actually wants to take this idea I hereby give full concept ownership to the public domain, and all who fly the pirate flag.

| ©X
|
|

Re:Try having an original idea

[Anonymous Coward]

Luck has nothing to do with it. Suing him would cost them money and they'd likely get nothing in return except him shit-canning the project. Sending a threatening letter costs almost nothing and will likely get them the same end result.

Re:Try having an original idea

[Anonymous Coward]

The DMCA does not mean what you think, if you believe it is a mechanism for trial-less removal of inspired works. Your point would only be valid if the poster had copied/sampled artwork or media elements. A wholesale copying of a game is called a "bootleg", and would be affected by the DMCA... but a clone is not.

The game industry can not function if games are not allowed to be inspired by each other. This is a face.

Games like Make Trax were inspired by Pac Man. Gorf and Galaxian were inspired by Space Invaders. They are not infringing.

Re:Try having an original idea

[DRJlaw]

This is why people usually put IANAL in there post (IANAL btw!) because they know full well they're simply stating what they think may be true, but which possibly is not.

Yeah, you might want to take your own advice.

You may wish to consider that YANAL either. More importantly, you may wish to consider whether you should be giving out what clearly can be interpreted as legal advice at this fledgling stage of your career.

The best thing you can do is start to fight it, then negotiate for Namco to give you permission in exchange for a cut.

You cannot possibly have enough information to give out this advice. While most of your comments in the topic have been merely informative, for which I have much sympathy, this crosses well over the line. Knock it off.

Re:Try having an original idea

[fishexe]

The best thing you can do is start to fight it, then negotiate for Namco to give you permission in exchange for a cut.

You cannot possibly have enough information to give out this advice. While most of your comments in the topic have been merely informative, for which I have much sympathy, this crosses well over the line. Knock it off.

Dude, this is Slashdot. Advice based on insufficient information is the name of the game.

Re:Try having an original idea

[Xest]

"Having actually studied copyright law, I have to say it's not so clear as you make it out to be."

In a case like this, where he's basically copied the art and taken a large portion of the name, yes, it really is.

"See, now here is an interesting question. How close does a copy have to be to be a copy?"

Agreed, it's a fair question, but in this case it's relevant, the clone is so close there really isn't any room for that argument.

"Again, I think the issues are more complicated than you think they are."

In general yes, in this case no.

"Yeah, you might want to take your own advice."

Apparently you completely and utterly missed the text in brackets.

If you really think the best thing he can do is to fight it, why not put your money where you mouth is and offer to help fund his costs in exchange for a return of the money plus a little bit extra for helping? Or are you merely advising someone else gamble their money without being willing to put your money where your mouth is?

Look your points make for great debate in the general case of creating clones, but in this case the clone is so close to the original that there's really no debate to be had over it, and he'd get destroyed in court. If he'd made a clone without the use of "Pac", with different characters and stuff and it had happened then fine, I'd agree it's worth fighting, but in this particular case it's fucking stupid to do so or to suggest he really has a chance in hell of succeding in a battle against Namco over it if they're determined not to allow such close clones of their IP.

Re:Try having an original idea

[SnowDog74]

I think he does have a leg to stand on. Remember when Apple sued Microsoft for copying the "look and feel" of Mac OS into MS Windows?? The judge said "look and feel" was not copyrightable and threw the whole thing out.

No, that's not at all what the judgment was. Instead, it was: "look, you dumb****s, you signed a contract granting Microsoft the rights to do this!" Copyright of look and feel has been upheld in multiple cases.

I was just about to say this. Yes, correct... The judge did find some 170+ elements that Microsoft did copy and would have been guilty of infringement had Apple not given Microsoft license to use these elements. They worded their agreement poorly and Microsoft had a pretty clear license to use elements of the Mac OS look and feel under that agreement.

I looked at this developer's page and he's got himself a real problem here. The characters, the "Super Pac" name, the maps, the pills, the gameplay, etc. all constitute a good case of copyright infringement.

Trademark infringement, incidentally, may not apply because while "Super Pac Man" is a trademark, "Super Pac" is less clear. However, copyright infringement applies because the detail of the gameplay, the characters, the look, the feel and the objective... more than 75% of the "idea" that constitutes the intellectual property known as the Pac Man game, is in this developer's product. It would not have the look, feel and gameplay that it does without having referenced Pac Man...and he completely shot himself in the foot by making direct reference to the Namco game in his description.

Another condition of proving copyright infringement is proving significant infringement of the brand and/or market for Pac Man. Since there's a good chance that users may confuse this product as being related to, derivative of, an offshoot, etc. of the Namco branded game, there is significant opportunity for harm to their brand image and their market for Pac Man games. It doesn't matter if the distribution is limited or they think the "chances" aren't likely it will outstrip Namco's sales of Pac Man, it's about whether or not it could be easily confused, in principle.

Fishexe states he's studied copyright law. I take that to mean he's had coursework but isn't a lawyer. If he were a copyright lawyer he'd say so. I'm not saying this to attack the messenger but just to establish some parity here... I have also studied copyright law. I am not a copyright attorney but I have worked for an ISP's internet security group and had direct contact with General Counsel on matters of DMCA. Also, I am both a copyright owner, and a copyright user (I've used copyright material under 17 USC 1, Section 107, fair use, for the purposes of comment, criticism or education. I would say that for the past 20 years I have gained a pretty intimate understanding of copyright issues... and this is a copyright issue.

Notwithstanding people's moral objections to intellectual property (an entirely separate discussion)... As to whether it's a DMCA issue or not, it is. While 17 USC 12 concerning circumvention of copyright protection systems does not apply, the other amendment, 17 USC 5, Section 512, does. That amendment passed under the DMCA concerns the notification requirements and limitation of liability of ISP's acting as mere conduit to a third party who is responsible for creating and distributing the unauthorized work. In this case, a valid DMCA notification filed with the ISP is the proper course of action.

Re:Try having an original idea

[TheoMurpse]

Copyrights don't cover the characters. Fan fiction is perfectly legal, for example.

Absolutely, 100% wrong on both counts.

Regarding the copyright of characters themselves, see numerous opinions, including Warner Bros. v. Am. Broadcasting Cos., 720 F.2d 231 (2d Cir. 1983).

Plaintiffs own the copyrights in various works embodying the character Superman and have thereby acquired copyright protection for the character itself.

Accordingly, fan fiction often does infringe copyrights. However, no one sues them because it's just a dumb business move. You're not going to make any money off shallow-pocketed fifteen-year olds, you're not going to stop all of them, you're not going to scare them into stopping since they don't believe it's against the law, it's a tougher case to win than "here's proof she downloaded my song, therefore she infringed" and necessarily will cost more in legal fees to stop, and it's harmful to the fanbase to try and stop them.

Re:Try having an original idea

[SnowDog74]

"filed by the ISP" to their end user, that should read in the last paragraph.

Re:Try having an original idea

[fishexe]

We may disagree as to whether the amount of copying rises up to the level of infringement, but there is a clear copyright infringement claim to be made here. The DMCA is appropriate.

I agree with that, but mostly because I've now looked at the site, and the images are basically copies of the original images. It's not because of any of the things moortak was talking about and I was disputing.

Re:Try having an original idea

[Theaetetus]

This is why people usually put IANAL in there post (IANAL btw!) because they know full well they're simply stating what they think may be true, but which possibly is not.

Yeah, you might want to take your own advice.

Hey, Mr. Kettle, there's a Pot on line one for you:

Having actually studied copyright law, I have to say it's not so clear as you make it out to be.

Are you a lawyer, or have you just "studied copyright law", perhaps as part of a survey class or something? 'Cause if the former, you might want to throw in some disclaimers since your interpretation is incorrect and inconsistent.
Specifically, when you say:

In your example, it doesn't sound like you really changed much at all, like characters or story; you just changed the words attached to certain things.

... the implication is that he would have been fine if they changed "characters" or "story".

"Character" is what we're talking about here. The concept of a player sprite running around a maze collecting things and being chased is not protected by copyright. That's equivalent to "boy-meets-girl". The character PacMan, a yellow circle with an eye and a wedge-shaped mouth, dating/married to Ms. PacMan, is protected by copyright, as are the characters Blinky, Pinky, Inky and Clyde. Each is sufficiently developed enough that they are not a mere abstract. Similarly, the character Harry Potter is protected by copyright, as would be Romeo Montague, provided Shakespeare were alive within the past 70 years. The story of teenagers in love? No. The specific and well developed characters? Absolutely.

As you note, they're also protected by trademark. IP has lots of areas of overlap.

Disclaimer: I'm not a lawyer, yet, but I will be in about 8 months. I do, however, practice IP law as a registered patent agent. My practice also includes a lot of discussions of copyright and trademark law, in addition to patents and trade secrets.
Legal Disclaimer: I'm not your agent, and this is not legal advice to be relied upon under any circumstance. Consult a licensed professional in your jurisdiction before taking any action.

Re:Try having an original idea

[Anonymous Coward]

Your study of copyright does not appear to have been very thorough. How much needs to be copied? Easy- a 'substantial amount'. You can argue whether or not the works here have "substantial similarity" but I think it's pretty clear they do. Ask yourself this instead if you disagree- how much creativity is embodied in this admitted clone? You misunderstand the scope of copyright to boot- it's not the specific image or sequence of words, it's the artistic expression embodied in these images or sequences of words. (You're importing the 'fixation' requirement for copyright protection into an infringement analysis, which isn't where that belongs.) Thus the fact that a story is absolutely protectable regardless of the sequence of words- I cannot publish "Lord of the Rings" in French in spite of the fact that not a single word of that text is in French. Unless you're arguing the translator holds the IP? Aha, you think, they do- but again that points to your misunderstanding. The translator's copyright subsists in the artistic word choices and language flow and the like- but it remains a derivative work (and thus infringing if not authorized) because it's the same story with "substantial similarity".
 
So most reasonable analysis will say the second is a derivative work. Under what circumstances is that infringing versus fair use? Easy, again- look to 17 USC 107. To paraphrase, they consider 1)the commercial nature of the work; 2)how much is inherently subject to copyright; 3)how much of that was copied; and 4)effect on the market for the original (including its authorized derivatives). The poster loses on the first and fourth factors pretty hard- and the second and third aren't exactly things that don't stick.
 
Anyway, go back to class.

Re:Try having an original idea

[fishexe]

I think he does have a leg to stand on. Remember when Apple sued Microsoft for copying the "look and feel" of Mac OS into MS Windows?? The judge said "look and feel" was not copyrightable and threw the whole thing out.

No, that's not at all what the judgment was. Instead, it was: "look, you dumb****s, you signed a contract granting Microsoft the rights to do this!" Copyright of look and feel has been upheld in multiple cases.

It's a little bit more complicated than that. Apple had given them license to use the particular elements, but claimed that their use together infringed the copyright on their OS by duplicating its "look and feel". The court basically said not to look at "look and feel" overall, instead to look at the individual elements, and since these were licensed, they had no case. It would have come out exactly the same if the elements were original, put together to duplicate the Apple "look and feel".

As for cases upholding "look and feel" copyright, the ones I know of are mostly old cases and have mostly been overruled, though if you know better than I, I'd love to have cites so I can update my knowledge of the issue. In fact there was even a case (name escapes me at the moment) where the court ruled it was fine to copy all the menu text and layout exactly because it was needed for a "compatability mode".

Re:Try having an original idea

[DRJlaw]

A law student who feels that they have no obligation to comply with the rules and regulations governing their intended practice of law. Why I am I not surprised.

Re:Try having an original idea

[fishexe]

I think he does have a leg to stand on. Remember when Apple sued Microsoft for copying the "look and feel" of Mac OS into MS Windows?? The judge said "look and feel" was not copyrightable and threw the whole thing out.

No, that's not at all what the judgment was. Instead, it was: "look, you dumb****s, you signed a contract granting Microsoft the rights to do this!" Copyright of look and feel has been upheld in multiple cases.

I was just about to say this. Yes, correct... The judge did find some 170+ elements that Microsoft did copy and would have been guilty of infringement had Apple not given Microsoft license to use these elements. They worded their agreement poorly and Microsoft had a pretty clear license to use elements of the Mac OS look and feel under that agreement.

And my point was that the court said to look at the individual elements. If Apple's "look and feel" argument had been valid, they wouldn't have looked at who owned the individual elements because it would have been the overall nature of the work that would constitute infringement, but the court decided to look at individual elements instead.

I looked at this developer's page and he's got himself a real problem here. The characters, the "Super Pac" name, the maps, the pills, the gameplay, etc. all constitute a good case of copyright infringement.

Yeah, they all look like the originals. I actually think there's an almost open-and-shut case based on the images, which the author of SuperPac seems to think are original enough but I think the law would see as copies. I just think it's those specific elements and not the general "look and feel" that would constitute the cause of action.

Trademark infringement, incidentally, may not apply because while "Super Pac Man" is a trademark, "Super Pac" is less clear.

Yeah, but look at his site, he uses the name "Pacman" in several places to talk about the character. So even if his name isn't a trademark violation, he's using their trademark to describe his product.

However, copyright infringement applies because the detail of the gameplay, the characters, the look, the feel and the objective... more than 75% of the "idea" that constitutes the intellectual property known as the Pac Man game, is in this developer's product.

Again, I think this is where we disagree. The basic premise of copyright is to protect not an idea but the expression of the idea. The images are copyrightable, the map is copyrightable, but the gameplay and the "idea" of running around a maze chomping dots are not.

...and he completely shot himself in the foot by making direct reference to the Namco game in his description....Since there's a good chance that users may confuse this product as being related to, derivative of, an offshoot, etc. of the Namco branded game, there is significant opportunity for harm to their brand image and their market for Pac Man games. It doesn't matter if the distribution is limited or they think the "chances" aren't likely it will outstrip Namco's sales of Pac Man, it's about whether or not it could be easily confused, in principle.

Agreed, and agreed.

Fishexe states he's studied copyright law. I take that to mean he's had coursework but isn't a lawyer. If he were a copyright lawyer he'd say so. I'm not saying this to attack the messenger but just to establish some parity here... I have also studied copyright law.

Correct. I don't consider myself an expert, I was just trying to point out how much more complicated things were than Xest was trying to depict them as.

I am not a copyright attorney but I have worked for an ISP's internet security group and had direct contact with General Counsel on matters of DMCA. Also, I am both a copyright owner, and a co

Re:Try having an original idea

[Anonymous Coward]

I have one. It's about a guy, named Marty O (and his brother Louis), who is an exterminator. He can run around and go through tubes and hit ceiling tiles with his head to release dollar bills and other power items. There's a queen, and some fungus people, too. I will be releasing it as Super Marty O Brothers. Does anyone see any problems with this?

Just one suggestion. Louis is such a plain name. Give him an initial, like his brother, Marty O. I think G would work. What do you think, Marty O and Louis G sound good?

Re:Try having an original idea

[Anonymous Coward]

Just make Louis black. Done deal.

Re:Try having an original idea

[sribe]

And my point was that the court said to look at the individual elements.

Yes, and they explicitly stated that their reason for that was because the UI was in fact nowhere near an exact copy. Shared elements were the basis of Apple's claim, therefore, the court reasoned, the elements must be examined individually. The court's decision made it quite clear that had the Windows UI actually been a near-duplicate copy of the Macintosh UI, the case would have been analyzed differently.

Re:Try having an original idea

[Anonymous Coward]

He... stole it? But I thought this was about copyright and trademark, not theft? Oh, it is about copyright and trademark, but not theft?

Re:Try having an original idea

[jhoegl]

Yes, he stole it. One can easily recreate the games of the 70s and 80s without much hassle these days...
The Trademark is the game itself. Replicating it is unlawful. Selling it is even worse.

Re:Try having an original idea

[hairyfeet]

Or he could...oh I don't know, this is just a thought, just throwing it out there...try making something other than a ripoff of the same shit we have been playing since 1982? I mean come on, you have more power in the cheapest mobile nowadays than they had in the original Atari and THEY were able to come up with all kinds of new ideas, why can't this guy? Hell I could probably think up a dozen original ideas for little popcap style games just being bored on a Sunday. It ain't brain surgery folks!

Re:Try having an original idea

[moortak]

In and of itself the game mechanics and design may not be copyrightable, but they shed a pretty clear light on what he was going for with his mobile yellow pie chart.

Re:Try having an original idea

[Anonymous Coward]

Or better yet, make both black. Then they don't need to be familial brothers, but they'll still be brothers!

Re:Try having an original idea

[fishexe]

"Having actually studied copyright law, I have to say it's not so clear as you make it out to be."

In a case like this, where he's basically copied the art and taken a large portion of the name, yes, it really is.

Yeah, I didn't see there was a link until after I replied. I assumed we could take him at his word for having done "original art", like he would at least have 3-d rendered it or made the ghosts look like real ghosts instead of pac-man ghosts, or something. Turns out, no, he just made them look as much like the originals as he could. That's straight-up copying.

"Yeah, you might want to take your own advice."

Apparently you completely and utterly missed the text in brackets.

Actually, because it was in parentheses, I thought it was an example (like this) and not your own disclaimer. My bad.

Re:Try having an original idea

[fishexe]

Having actually studied copyright law, I have to say it's not so clear as you make it out to be.

Are you a lawyer, or have you just "studied copyright law", perhaps as part of a survey class or something? 'Cause if the former, you might want to throw in some disclaimers since your interpretation is incorrect and inconsistent.

Incorrect? Quite possibly. Inconsistent? I think you misunderstand me. Like you, IANAL yet. Duly noted on the disclaimer.

Specifically, when you say:

In your example, it doesn't sound like you really changed much at all, like characters or story; you just changed the words attached to certain things.

... the implication is that he would have been fine if they changed "characters" or "story".

That's not the implication at all. The point was that it doesn't make sense for him to be saying "gotta change characters or story! gotta change characters or story!" when in his example he didn't change either. What he changed to make it compliant was literal text copied from the original.

"Character" is what we're talking about here. The concept of a player sprite running around a maze collecting things and being chased is not protected by copyright. That's equivalent to "boy-meets-girl".

I agree.

The character PacMan, a yellow circle with an eye and a wedge-shaped mouth, dating/married to Ms. PacMan, is protected by copyright, as are the characters Blinky, Pinky, Inky and Clyde. Each is sufficiently developed enough that they are not a mere abstract.

Well, having only read the summary before my post, I assumed OP had made sufficient artistic difference to have a good argument that his characters were distinguished. At the very least call them different names and give each one a distinctive marking or something. Now that I've followed the link, I see that it's not the case, and he even refers to the hero by the name "Pacman" in descriptions on the web site, which is a really blatant violation. But my point still stands that the "Green Gobbler" idea I was responding to was not automatically distinct either, à la K.C. Munchkin.

Similarly, the character Harry Potter is protected by copyright, as would be Romeo Montague, provided Shakespeare were alive within the past 70 years. The story of teenagers in love? No. The specific and well developed characters? Absolutely.

Yeah, like I said I foolishly took OP at his word that he'd made good-faith efforts at artistic originality and only copied the game concept and mechanics. I thought it was the "teenagers in love" equivalent for Pac-man, not the "Romeo Montague". Shoulda followed the link.

Re:Try having an original idea

[fishexe]

You cannot possibly have enough information to give out this advice. While most of your comments in the topic have been merely informative, for which I have much sympathy, this crosses well over the line. Knock it off.

Will do.

Re:Try having an original idea

[Anonymous Coward]

The shape of the maze, the shape of the ghosts, and the exact combination of the circle, its colour, and the animated movement of the wedge clipped out of the circle within that context are more than basic geometric shapes.

Re:Try having an original idea

[Anonymous Coward]

What is "creative" about making a clone of Pacman? It's funny how often on here people whine about copyright laws stifling creative and yet the things that are being held up as being stifled are clones of other works.

Some of the most famous works in the English language came about because somebody more or less cloned somebody else's work. Hamlet is the classic example. (Not to say the guy's Pacman clone is the video game equivalent of Hamlet.)

Re:Try having an original idea

[fishexe]

A law student who feels that they have no obligation to comply with the rules and regulations governing their intended practice of law. Why I am I not surprised.

I don't feel that way at all, and you have a good point on crossing the line from information to advice, which I'm going to heed from now on. I just had to give you a snarky reply 'cause it's Slashdot ;-)

Re:Try having an original idea

[fishexe]

Good to know. Thanks.

Re:Try having an original idea

[nabsltd]

If you don't think the fictional worlds are then try commercially publishing a book based in the Star Trek or Star Wars universe and see how long it takes to get sued.

Although you might be sued quickly, it's because of trademark, not copyright.

Paramount learned this the hard way and trademarked the names of every character from Next Generation onward. This is because of the way "derivative works" are defined in copyright law:

A "derivative work" is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.

If you write a story about the Star Trek universe where the only thing you "copy" are the names of things (characters, ships, planets, etc.) and then express a completely new story, it's not a derivative work. Basically, it meant that "sequels" are not derivative works, but court cases have made it so that you can no longer be sure, as it's almost always going to be an question of the individual situation.

Re:Try having an original idea

[spike1]

And look what happened to Great Giana Sisters...
Real shame too, the game got a Crash Smash but then never made it to shelves (the spectrum version that is, I know the commodore 64 version managed to get released).

Re:Try having an original idea

[Theaetetus]

Yeah, like I said I foolishly took OP at his word that he'd made good-faith efforts at artistic originality and only copied the game concept and mechanics. I thought it was the "teenagers in love" equivalent for Pac-man, not the "Romeo Montague". Shoulda followed the link.

Fair 'nuff.

Re:Try having an original idea

[Surt]

Yeah, I'm actually in general very anti-copyright. I don't think there SHOULD be copyright here, but there very clearly IS.

Re:Try having an original idea

[TheoMurpse]

Good luck w/law school. Network your ass off (unless you're at Harvard, Yale, or Stanford!); it's a jungle out there right now.

Re:Try having an original idea

[scottbomb]

He's just following Hollywood's example. They haven't had very many original ideas in years. Hence all the re-makes of 80s flicks.

Re:Try having an original idea

[vertinox]

Why isn't it a copyright violation. He used their characters, their name (SuperPacman came out in 1982), and mechanic. This about as much of a derivative work as you get.

IANAL but there has been quite a bit of hoo doo about this in the 1970s over board games. From my recollection, the courts determined that you can copyright the art and words, but you can't copyright the rules or the design of the game itself.

Recently Hasbro filed suit against Scrabulous over the copyright infringment of Scrabble. (source)

The courts said that Scrabble was a trademark but the game itself was not in which the company in question simply changed their name of the copycat game.

In that regard, anyone could take say super mario brothers or pac man, and as long as they use their own grpahics, game code, and art, can basically create a copy cat of sorts.

Same thing applies to this issue the article brings forth. He probably shouldn't have used the word "Pac" tho as it might be trademarked.

Re:Try having an original idea

[Geoffreyerffoeg]

There have been attempts at arguing "look and feel" copyrights. It's not clear to me where caselaw stands (see Lotus v. Borland and Apple v. Microsoft, both of which you could read either way in this case) and how the DMCA affects that, but it definitely seems to me that it is not completely obvious that there is no infringement, in which case (IANAL) Namco isn't wrong to file a takedown notice, and certainly isn't doing so in bad faith.

Re:Try having an original idea

[Joebert]

My thoughts exactly.

Re:Try having an original idea

[SnowDog74]

You are correct about idea to an extent. Vague ideas are not copyrightable... but a specific concept that can be fixed in a tangible form, going well beyond a vague idea, is. It depends on the specificity of the idea. For example, the concept of "goodwill" is not copyrightable because it is broad and ephemeral.

But consider two cases about ideas: Art Buchwald successfully won a case against Paramount because the concept the movie Coming to America was based on originated with a story treatment (these are very detailed ideas typically 40-80 pages in length, but nowhere near as specific as a script) that Paramount rejected. In Buchwald v. Paramount, Buchwald prevailed and was granted both royalties and story credit. (See http://en.wikipedia.org/wiki/Buchwald_v._Paramount).

Enough documentation existed to substantiate that the concept was in fact inspired by Buchwald's idea. The same thing happened with Roland Emmerich and Stargate. Years before the film went into production, an egyptologist named Omar Zuhdi had pitched the concept to him. Zuhdi had a colleague Emmerich expressed disinterest but then went on and adapted the story concept into Stargate. Emmerich settled out of court with Zuhdi for an undisclosed sum.

Even if Namco never published/manufactured Pac Man but had a detailed account of the game concept and evidence that OP knew about it, just as in the cases of Zuhdi and Buchwald, they could successfully hold OP responsible for copyright infringement and file for a number of remedies, including but not limited to injunctive relief and/or a substantial portion of OP's gross receipts.

Re:Try having an original idea

[SnowDog74]

Sorry for the typos and incomplete sentences... it's late and I'm tired. One sentence should read "Zuhdi had a colleague vouch for him."

Re:Try having an original idea

[SnowDog74]

The issue was not that Microsoft hadn't copied. The court found that 179 of 189 elements Microsoft had indeed copied were licensed to them by an agreement in writing with Apple in the mid-1980's, and that the remaining ten ideas were not copyrightable because either they were vague or the ONLY way of expressing an idea. Two important distinctions here are that: a) The OP repeatedly acknowledges Pac Man as the basis for his concept and therefore admits it's derivative of their copyright. and b) OP did not have a prior agreement with Namco/Bandai to license a single element, let alone 179, of the Pac Man game.

It's important to understand where the Ninth Circuit Court of Appeals' decision comes from, so here's the relevant text of their decision, which was the first to specifically set out in case law the criteria of examining elements of an idea individually and not as a whole, which is entirely applicable in OP's case because there are numerous elements that have been quite directly imitated. Here's the relevant text from Apple v. Microsoft (1994):

We have traditionally determined whether copying sufficient to constitute infringement has taken place under a two-part test having "extrinsic" and "intrinsic" components. As originally adopted in Sid & Marty Krofft Television Productions, Inc. v. McDonald's Corp., 562 F.2d 1157, 1164 (9th Cir.1977), the extrinsic prong was a test for similarity of ideas based on external criteria; analytic dissection and expert testimony could be used, if helpful. The intrinsic prong was a test for similarity of expression from the standpoint of the ordinary reasonable observer, with no expert assistance. Id. As it has evolved, however, the extrinsic test now objectively considers whether there are substantial similarities in both ideas and expression, whereas the intrinsic test continues to measure expression subjectively. Brown Bag, 960 F.2d at 1475; Shaw v. Lindheim, 919 F.2d 1353, 1357 (9th Cir.1990). Because only those elements of a work that are protectable and used without the author's permission can be compared when it comes to the ultimate question of illicit copying, we use analytic dissection to determine the scope of copyright protection before works are considered "as a whole." See, e.g., Brown Bag, 960 F.2d at 1475-76 (explaining that purpose of analytic dissection is to define scope of copyright protection); Pasillas v. McDonald's Corp., 927 F.2d 440, 443 (9th Cir.1991) (copyright holder cannot rely on standard elements to show substantial similarity of expression); Harper House, Inc. v. Thomas Nelson, Inc., 889 F.2d 197, 207-08 (9th Cir.1989) (trier of fact cannot base infringement decision on unprotectable aspects of plaintiff's work).

25
Although this litigation has raised difficult and interesting issues about the scope of copyright protection for a graphical user interface, resolving this appeal is a matter of applying well-settled principles. In this, as in other cases, the steps we find helpful to follow are these:

26
(1) The plaintiff must identify the source(s) of the alleged similarity between his work and the defendant's work.

27
(2) Using analytic dissection, and, if necessary, expert testimony, the court must determine whether any of the allegedly similar features are protected by copyright. Where, as in this case, a license agreement is involved, the court must also determine which features the defendant was authorized to copy. Once the scope of the license is determined, unprotectable ideas must be separated from potentially protectable expression; to that expression, the court must then apply the relevant limiting doctrines in the context of the particular medium involved, through the eyes of the ordinary consumer of that product.

28
(3) Having dissected the alleged similarities and considered the range of possible expression, the court must define the scope of the plaintiff's copyright--that is, decide whether the work is entitled to "broad" or "thin" protection. Depending on the degree of protection, the court must set the appropriate standard for a subjective comparison of the works to determine whether, as a whole, they are sufficiently similar to support a finding of illicit copying.

Re:Try having an original idea

[SnowDog74]

A little background, the case of Sid & Marty Krofft Prod. v. McDonald's Corp. has to do with the Krofft brothers alleged claim that the character of the Hamburglar was based on the Krofft's character of Mayor H.R. Pufnstuf from their children's television show. They won the case because the preponderance of the evidence showed that their story concept was known to McDonald's via an ad agency attempting to secure a deal with McDonald's.

The court concluded that because no layperson would see a substantial distinction between the two characters, that infringement was substantial enough to merit damages under extrinsic and intrinsic factors.

A concise explanation of the court's decision can be read here: http://www.studentweb.law.ttu.edu/Cochran/Cases%20&%20Readings/Copyright-UNT/krofft.htm

Basically, the two important takeaways are that:

a) Like the OP, McDonald's did not deny that the characters of their McDonaldland were in fact based on the Krofft's show. The involvement of the ad agency soliciting concepts to be used by McDonald's without having ever compensated the Kroffts constituted part of the extrinsic, objective evidence that infringement had occurred.

b) Instead McDonald's attempted, and failed, the intrinsic test in their argument that the characters are too dissimilar. They decided that the McDonald's commercials captured the "total look and feel" and also noted that McDonald's attempt to dissect the case based on extrinsic factors reveals a failure of the intrinsic test:

"Pufnstuf" wears what can only be described as a yellow and green dragon suit with a blue cummerbund from which hangs a medal which says "mayor". "McCheese" wears a version of pink formal dress--"tails"--with knicker trousers. He has a typical diplomat's sash on which is written "mayor", the "M" consisting of the McDonald's trademark of an "M" made of golden arches."

So not only do defendants remove the characters from the setting, but dissect further to analyze the clothing, colors, features, and mannerisms of each character. We do not believe that the ordinary reasonable person, let alone a child, viewing these works will even notice that Pufnstuf is wearing a cummerbund while Mayor McCheese is wearing a diplomat's sash.

Re:Try having an original idea

[SnowDog74]

And ironically, Paul Simon successfully sued the Krofft's for basing the H.R. Pufnstuf theme song on his work, "The 59th Bridge Street Song." (http://en.wikipedia.org/wiki/The_59th_Street_Bridge_Song_(Feelin%27_Groovy))

Re:Try having an original idea

[Anonymous Coward]

I wonder if you visited the OP's web site. His game is an overt clone of pacman, down to the color scheme and shape of the map. You suggest that a jury trial could come out either way due to the inherently ambiguous nature of the legal system, but it would be hard to find a jury who didn't think that his game is a copy.

As Xest said, the OP should feel lucky that his worst legal problem right now is the inability to offer his game in the app market. Should he attempt to counter this legal move, you can bet that they will be seeking damages if it goes to trial.

Re:Try having an original idea

[purpledinoz]

Since the effort is already put in, you might as well repost the game, but under a different name, and with different graphics. Maybe make pac-man green, change the ghosts to monsters, change the pills to stars, etc. No point fighting a legal battle. The only winners are lawyers in that case.

Re:Try having an original idea

[fishexe]

Sorry for the typos and incomplete sentences... it's late and I'm tired. One sentence should read "Zuhdi had a colleague vouch for him."

NP. I'm just happy to have cases to read about the issue.

Re:Try having an original idea

[julesh]

I'm sorry, but that's not a copyright violation and it's certainly not a violation of the DMCA.

What is a copyright violation:

1. He's using Namco's original maze layout, or something very similar to it.
2. He's using artwork that looks a *lot* like the original artwork from the game; even if it was redrawn it cannot realistically be claimed not to have been copied.

You can reimplement a pac-man type game without violating the original copyright. But you have to use your own maze design, and your own artwork that is obviously distinct from the original artwork. This developer did neither.

Re:Try having an original idea

[Anonymous Coward]

or he could just design an original game. He clearly isn't cut out to be a game developer if all the fuck he is capable of is cloning pacman.
Really, he should stop whining and stfu.

Re:Try having an original idea

[Kjella]

Then you'll not only be free of trying to balance on the edge of infringement, but also have some claim at satire.

Fair use covers using elements of Pacman to make a parody of Pacman. It probably doesn't cover using elements of Pacman to make a parody of the way the MAFIAA is chasing pirates. Basically it comes down to need, you can't make a parody of Pacman if no one would recognize it as Pacman - it would be like prohibiting parody, while you could make fun of the MAFIAA in a number of other ways.

Re:Try having an original idea

[DiEx-15]

Three words came to mind when I saw the article:

Super Pac-Man

Apparently you didn't look hard enough. That is why you got Namco trying to give you a DMCA-Colon Exam.

Re:Try having an original idea

[mwvdlee]

Don't want to recieve DMCA notices? Then don't copy somebody else's work.
In short; cry me a river.

Re:Try having an original idea

[aeoo]

Bullshit. Please cite the codex of the law that allows copyright of characters. I'm waiting.

Re:Try having an original idea

[Dracolytch]

However, the words "Based on the classic arcade game Pac-Man", pretty much classify the whole project as a derivitive work... Which, combined with the name ("Super Pac", where "SuperPacman" is a copyrighted name), is probably reason for the copyright holders to send out a C&D. I mean, I'm no big fan of the corporate machine, but I can see their rationale on this one.

~D

Re:Try having an original idea

[Anonymous Coward]

In any art you need both the creativity to make something new, and the skills to make anything at all. If you lack either your aren't realy an artist. It's a time honored tradition to develop the _skills_ needed to create creative works by copying the creative works of recognized masters.

What a lot of people miss is that the copying isn't producing a creative work, and that the next step is supposed to be exrecising your creativity to create something _new_, not publish your _knockoff_. The problem comes from the fact that it's ultimately easier to make a living producing knockoffs than to do so through innovation. So when someone tells you that it's OK to make your own Pac-Man knockoff as an exercise to learn how to make actually produce a game, and you see Pac-man knockoff selling for money, the logical conclusion is "Hey I should sell my knockoff and make some money", and from there it's really easy to jump to "I'm selling art therefore I must be a professional artist", and anyone who thinks of themselves as an artist will assume that their work must be art, and therefore legislation that says it isn't is stifling their "creativity".

Re:Try having an original idea

[Anonymous Coward]

Pills here! Grabbin' some pills!

Re:Try having an original idea

[bugi]

Aww, but it fits so well. Mafiaa-man Haunted by Ghosts of Children-Past.

I suppose a game that plays similarly to robotron (with the kids as zombies and more innocent bystanders) might work even better for parody, but who has two joysticks anymore?

(But I had another point, which was to replace the art. Then namco would have far less leg to stand on if they continued the dmca action.)

Re:Try having an original idea

[Anonymous Coward]

Maybe you should brush up on the law before you spout your ignorance.

Re:Try having an original idea

[Anonymous Coward]

Fanfics are not legal. They are usually tolerated (a lot of them are anonymous anyway), but if you try to publish them, or do something too visible, you will get in a world of trouble.

Re:Try having an original idea

[commodore64_love]

To be more precise:
- He stole the inventor's original creative work without compensating his labor (a few pennies per copy).

Re:Try having an original idea

[Anonymous Coward]

Fan fiction stories are technically derivative works, and therefore copyright infringing. I think most copyright holders in this case simply refrain from pressing charges in favor of maintaining a fanbase.

Re:Try having an original idea

[fishexe]

But consider two cases about ideas: Art Buchwald successfully won a case against Paramount because the concept the movie Coming to America was based on originated with a story treatment (these are very detailed ideas typically 40-80 pages in length, but nowhere near as specific as a script) that Paramount rejected. In Buchwald v. Paramount, Buchwald prevailed and was granted both royalties and story credit. (See http://en.wikipedia.org/wiki/Buchwald_v._Paramount).

Funny you should mention that case, it's the second one I've read this term where Eddie Murphy was given sole story credit and somebody sued to get their due credit (the other was about Beverly Hills Cop II, but it was a case about arbitration). In this case, though, it wasn't ruled a matter of copyright, but a breach of contract, because they didn't reject his treatment, they optioned it. The court actually says the movie and the treatment might not have been similar enough to sustain a copyright claim, but because they had a contract saying they would pay and give credit if they made a movie similar to the treatment within 10 years, the similarities were enough to sustain a contract claim.

Re:Try having an original idea

[mr_mischief]

PacMan was more than the one game. There were later games with cartoon sequences in them. There was a TV series. There were 3-D games with 3-D PacMan and 3-D enemies. The character is pretty well developed, and there are many other characters to go with him.

I doubt just running around a maze with no character elements is infringing on all that character development, though. The inspired fan-game isn't using any of that extra info. The design of the mazes is probably the biggest copyright issue. Most clones don't use the same map layout as the original, and that may be a sufficiently protected part of the work.

Re:Try having an original idea

[Modern Primate]

Well, that's not entirely true. Copyright does cover derivative works. For example there's the issue of The Wind Done Gone that was based on Gone with the Wind, but was written from the slaves' point of view. Much legal trouble ensued, and it had to be rebranded as a parody and the characters renamed (and some money spent) before the case could be settled.

Re:Try having an original idea

[stonewolf]

Copyright and trademark are two ways the law (also known as the basis of civil society) establishes the existence and rules for intellectual property. Once you accept the concept of intellectual property then you must accept the concept that taking someones intellectual property is theft just as taking someones physical property is theft.

So, yes, this scum bag created a game that is essentially a clone of Pac-Man and even use the same images for his muncher and the ghosts. You don't have to actually use the original art work. If you make a copy of a piece of art, even by your own hand, then you are breaking the rules of copyright. After all, what does the word mean? Copyright literally means "the right to make a copy". Making a copy without permission is theft.

Using the a trademark with out permission is not only theft from the owner, but theft from the buyer. The idea of a trademark is to insure that when it says "Gucci" on the bag you are getting something actually designed and made by "Gucci". When you make some that looks like Pac-Man, but isn't you are stealing from the owner of the trade mark and from customers who are not getting the real Pac-Man.

So, yes, this is about copyright, trademark, and theft from both the owners of the trademark and copyrights and from the people who purchased it.

The person who posted the original question is a thief who is looking for information that he hopes will allow him to continue as a game developer without continuing as a thief. This is a good goal.

The easiest thing to do in his case is to be a little bit creative. If you want to do a game based on the Japanese folk hero Paku he should research the legend and design a new game. If he wants to just be inspired by Pak-Man then he should be inspired by it enough to create a new game that includes the basic ideas but is not the same game, with the same style of art, with characters that look just like the original characters, and without the same scoring and strategy.

As an example, take a look at the relationship between "Dungeons & Dragons" and "The Lord of the Rings" or even "Bunnies and Burrows" and "Watership Down". Not to mention the relationship between "B&B" and "D&D". (And think of how lucky were are that AFAIK there is no A&A, C&C... Z&Z"!)

The key is that "inspired by" does not mean that it is a near perfect copy down to the art work. A near perfect copy is theft. Inspired by can be great art.

I would suggest that the person who asked the question should get an education. I would suggest starting with a book on the intellectual history of the world. Failing that, at least find, and read, three or four books on the basic concepts of law and especially intellectual property law.

If anyone doubts the importance of intellectual property law let me point out that the basic rights most Americans take for granted were added to the Constitution in the form of the Bill of Rights, aka the first ten amendments to the Constitution. OTOH, The legal basis for US intellectual property law is in the core of the original text of the constitution. The founding fathers all came to agree on the need to guarantee intellectual property rights. But, some of them thought it was a bad idea to limit the states right to control religion, speech, the press, weapons, searches, and the states power to use torture to extract a confession.

Stonewolf

Re:Try having an original idea

[stonewolf]

You should take your own advice. If you follow the link and look at his artwork he clearly stole the design of the characters and the overall look of the game. He is lucky he just got a take down notice and not a suit for damages. He would likely be having his income garnished for the rest of his life to pay that debt.

Stonewolf

Re:Try having an original idea

[clydemaxwell]

quick note on gucci: if the consumer can't tell whether it's gucci, it probably never mattered in the first place.
defending gucci's ability to sell things on brand name alone doesn't seem like a strong cause for moral outrage.

What relation does this have to the DMCA?

[Anonymous Coward]

It's just a trademark violation.

Re:What relation does this have to the DMCA?

[Anonymous Coward]

It's just a trademark violation.

This is what I'm wondering too. I thought DCMA was about stopping people from breaking encryption so they couldn't then make digital copies!!! How did they manage to think you broke the encryption on their pac man game and digitally copy it so it worked on Android? Your a genius if you did that, the technology will be worth billions!!!!!

Re:What relation does this have to the DMCA?

[meerling]

The DMCA has been ripe for abuse since before it was signed. Since then it's been used illegally many many times with little or no repercussions to those who abuse it.

I don't know if his game violates any rules, but it's possible. Of course, there are tons of similar games that don't, so who knows, other than ip lawyers.

Re:What relation does this have to the DMCA?

[gnasher719]

The DMCA has been ripe for abuse since before it was signed. Since then it's been used illegally many many times with little or no repercussions to those who abuse it.

The way I see it, without the DMCA the guy would have been sued for copyright infringement. Maybe he would have received a letter first "Please withdraw your app or we will sue you for copyright infringement". This way, there is a good chance that he gets away undamaged.

Re:What relation does this have to the DMCA?

[zach_the_lizard]

On the other hand, the DMCA basically assumes guilt and demands that a DMCA takedown notice be obeyed without consideration. Plus, it makes it easier to lose a copyright case.

Re:What relation does this have to the DMCA?

[gnasher719]

This is what I'm wondering too. I thought DCMA was about stopping people from breaking encryption so they couldn't then make digital copies!!! How did they manage to think you broke the encryption on their pac man game and digitally copy it so it worked on Android? Your a genius if you did that, the technology will be worth billions!!!!!

There are two completely different laws that both are under the title "DMCA". The one law gives a copyright holder additional legal protection if it is protected by effective measures that control access to the work. The other is the one we are talking about here: If a copyright holder finds copies of their work on some website, they can ask the website to remove the copies. The website either complies, or they will be part of any copyright infringement.

Super Pacman was an arcade game.

[Anonymous Coward]

Super Pacman was an arcade game and your name is much too close to it if it's also yet another pacman type game.

Don't rip-off other games with cheesy clones

[Anonymous Coward]

No issues to worry about.

Nothing personal

[deathguppie]

Nothing personal, but seriously dude your game looks EXACTLY like Pacman. Not a little like, but exactly like. If you had made the game with marshmello's and a doughnut then I'd be saying "ya, those bastards!" but you just copied the game and gave it a new name. IANAL but if you copied my game, and put a new name on it I'd be a little upset too.

Re:Nothing personal

[brownerthanu]

Agreed. That game is Pacman. Time to drop the charade of technicalities.

Re:Nothing personal

[Anonymous Coward]

Barely put a new name on it. Namco has a game called "Super PacMan"...ya don't think that's a little close? Stop on by my new restaurant...I call it "McDonals". Just look for the big, yellow arched M. It's right next door to my Burger Kin.

Re:Nothing personal

[hedwards]

You can't copyright look and feel. The OP has almost certainly violated Namco Bandai's trademark, but you can't file a DMCA takedown notice over a trademark violation. And even that is a bit questionable as ghosts are fairly generic, only the name and the actual pac man looking character are likely to infringe. They don't own any of the IP here as far as I can tell, which means that they're likely to face sanctions for violating the provision. 2.2.1 Notice from Copyright Owner And section 512 of the DMCA contains provisions for companies like Namco Bandai that misrepresent their ownership over the materials. As was the case in Online Policy Group v. Diebold, Inc.,

Re:Nothing personal

[Anonymous Coward]

Burger Kin.

Damn. North Americans got so fat you had to come up with a new word for them? ;)

Re:Nothing personal

[uglyduckling]

You can copyright a character though. I think PacMan would qualify for protection.

Re:Nothing personal

[Anonymous Coward]

I believe a charade of technicalities is precisely why we have lawyers... to see who can come up with the better charade.

Re:Nothing personal

[Blakey Rat]

Well, seriously. The art is so identical that there's *no way to tell* whether it was simply copied (copyright), or re-created but looks suspiciously similar (trademark). Seriously, click through to his site and look at the screenshots... if his version of Pac-Man had a round mouth instead of a triangle, or was colored purple and had an eye on a stalk or something, well, ok. But in this case, I'm kind of cheering Namco on.

Re:Nothing personal

[icebraining]

The OP has almost certainly violated Namco Bandai's trademark, but you can't file a DMCA takedown notice over a trademark violation.

No, they could outright sue him. Does OP prefer that option? Since he can't afford a lawyer, probably not.

Re:Nothing personal

[The End Of Days]

They have the Big Mac, mine is the Big Mick. They both contain two all-beef patties, special sauce, lettuce, cheese, pickles and onions. But they use a sesame seed bun. My buns have no seeds.

Re:Nothing personal

[Anonymous Coward]

Nothing personal, but seriously dude your game looks EXACTLY like Pacman. Not a little like, but exactly like.

He also copied the maze (original (scroll down) and copy). It's not an exact pixel-for-pixel copy, but it's pretty darn close.

I'd be willing to bet that the OP's under the misconception that only mechanical copies count as copies.

Re:Nothing personal

[goblin777]

Um, you also "designed" a game called "Super Froggy" that strangly looks just like Frogger. Just suck it up and admit you're totally ripping off Pac-Man, and realize the fact that some companies get a little upset when you try and profit off of their games with inferior products. (Inferior is not just a stab. At least 2 people in your game comments complained that Super-Pac freezes after Level 3. That's either bad code, or the lamest kill screen ever. That last part WAS a stab.)

Re:Nothing personal

[Tharsman]

Sorry, if you even look at the game's page, it's not just "look and feel", it's just a blantant copy. It's identical in every way. Ghost are the same, yellow guy is the same, maps are the same. It's exactly the same game. Just because he re-programmed it instead of plainly copying it does not change the outcome, it's the same frigging game. He just went the extra mile to copy it.

Oh and the game is called Super Pac. That's just an abreviation of Super Pac-Man!

Re:Nothing personal

[blahplusplus]

"IANAL but if you copied my game, and put a new name on it I'd be a little upset too."

This is why intellectual property is a bad thing. At what point do you stop? Do we start copyrighting pixels, squares, shapes? I think the whole IP thing reeks.

This private ownership of things the public has INVESTED IN but the public gets no partial-stake in the copyright is bullshit. This is corporatism and can do nothing but stifle recombination of old and new ideas and new takes on old ideas.

Re:Nothing personal

[Anonymous Coward]

+1 "Coming to America" reference

Re:Nothing personal

[Pharmboy]

I also noticed on this page that more than once he refers to the character in the game as "pacman", such as his bugfix and release messages:

"Pacman now moves faster (from V1.05). In later levels, some of the ghosts may move faster then Pacman."
and
"Super Pac V1.05 released - Increased speed of Pacman"

The problem here is that there is exactly zero artistic expression in this game, it is purely cloning over the complete look and feel and characters and gameplay. Not all of that is copyright-able, but the total of the circumstances makes it clear that this is what copyright law is supposed to protect against. He only needed to make the maps and characters somewhat different to avoid this issue, but instead chose to be 100% "accurate" to the original, even down to the character name. Well, mission accomplished.

Re:Nothing personal

[TheRaven64]

This kind of rule generally works in favour of the little guy. It's much easier for a big game studio to copy an independent developer's idea, throw a few more artists at it and a lot more marketing money, and destroy the original creator's business that it is for the inverse to happen. Games like Pac-Man are only able to flow the other way because they were created at a time when computers were so simple that a single developer could easily tax the limits of the machine.

The real problem here is not the stuff that is covered by copyright, but the duration of that copyright. Pac-Man was originally released in 1980. With 10-year copyright terms, it would have been phenomenally profitable, making far more money than is required as an incentive to create it in the first place, and would then have entered the public domain in 1990. Even with 20-year terms, we'd still have had the game in the public domain for quite a while. Current term lengths are just insane.

Re:Nothing personal

[Anonymous Coward]

Since when did the public invest in pac man except a few quarters at a bar or arcade? ((This is not what you mean by investing!)) Seriously, Pac Man has always been a privately owned IP. And how is this "corporatism" when the original creator of Pac Man was a small business owner attempting a new market? LOL. You people are nuts.

Re:Nothing personal

[slack_justyb]

Dude you need to get a lawyer ASAP. DMCA is a tool that a lot of companies use to get a pseudo injunction without having to go through all the legal mumbo-jumbo of a judge and what have you. You've got a lot of strikes on you right now. First off this at the bottom of your page. (c)1994-2009 [you email address follows].

You've used that symbol in a context that shows that you remotely know what it is for. Therefore you may remotely understand how it applies to other people's work. So the argument of I'ma small time programmer, I didn't know what I was doing. Isn't going to fly too high.

Second, I don't know how many people have actually downloaded this, but if the number is high, say 50,000+. You need a lawyer really bad because you've cause a giant chunk of damage. 1,000 to 10,000 and yeah they'll come after you, DMCA is just buying them time. 1,000, then they just want your crap off the market, you'd be wise to write their lawyer a letter expressing your deep regret, or better yet just get a freaking lawyer!

Point being is, and this strictly applies to only your case, you need a lawyer and you need one fast to help you mitigate (NOT FIGHT) this. Again, the DMCA is just a stalling out more sales tactic, the actual law(s) that you've broken will be brought to your attention in court.

Re:Nothing personal

[Golden_Rider]

He also copied the maze (original (scroll down) and copy). It's not an exact pixel-for-pixel copy, but it's pretty darn close.

I'd be willing to bet that the OP's under the misconception that only mechanical copies count as copies.

Yes, it is the same dungeon layout. Even the powerup pills are located in pretty much the same place. Plus the tunnel to move from one side of the screen to the other and the "ghost house" in the center. Seriously, it is just a clone, except for the colour of the walls (brown vs. blue). I do not think there's much to complain here about the DMCA notice.

Re:Nothing personal

[whoop]

I think the point is, if as the summary states, he "can't afford expensive lawyers," then just stay away from making a damned exact duplicate of a work by a company that can afford expensive lawyers. All the people arguing whether this is in fact a violation of the DMCA and what not are missing the major factor, that it takes lawyers (and not cheap ones) to successfully make this point in the court system.

Again, make a game with some new ideas, and you'll find less need to defend your program from lawyers or the court system.

Re:Nothing personal

[Anonymous Coward]

I think the whole IP thing reeks.

Then go live in Somalia or something. We, the Western world, have democratically decided that some ideas can be property.

Re:Nothing personal

[SnowDog74]

Oh. My. God. I'm sorry but OP is a fucking imbecile if he is so deluded as to believe he did not infringe on Namco's copyright.

Re:Nothing personal

[Anonymous Coward]

The directory name on the server as linked to from the article is even /pacman/ :V

Re:Nothing personal

[SnowDog74]

There are several ways of looking at this. If I make a movie that "looks and feels" like Richard Donner's Superman in every way, right down to Lois's car stalling and falling into a crevice in the middle of a Central American earthquake, but I just change some names around and call Lois "Barbara" and Central America "Kazakhstan", and Superman "Super Miguel"... I'm pretty certain that I'm asking for some level of trouble.

But here he went steps further. In his own bugfix notes he refers to the character repeatedly as "pacman".

Trademark violation applies because he refers to the character as "pacman" in his release notes. Trademark violation may or may not apply to the game name. But the "look and feel" is not the only issue here. The specifics of the characters, their appearance, the gameplay, the objective, the maps, pills, power wafers, maze w/escape tunnels, etc. is so identical to the original in so many ways that is definitely meets the conditions for infringement.

Re:Nothing personal

[Puzzles]

You're cheering this kind of behavior? I can't think of any other game publishers that actively pursue clones of their 30 year old games as much as Namco. In fact, some fan based derived games have been accepted by the publishers (ie Capcom and MegaMan2D). I understand the idea created by and for the IP lawyers that states a company will lose its IP if it does not try to prevent infringement on its "property". So, in effect, Namco can claim that smashing small profitless indie endeavors such as "Super Pac" is how they keep a bigger company from making a Pacman game. However, the key difference here is that "Super Pac" is free. The bigger company that Namco truly fears would make money from whatever copy they made. What Namco doesn't see (and what Capcom does) is that the people making and even playing these copies are fans of Pacman. I have downloaded the official Pacman Android app as well as purchased the Championship Edition (also including DX) on both Android and XBox. I purchased the Pacman app before it was made free and I also downloaded this Super Pac as well. I sometimes play CE on my phone but the "true" Pacman that was made free is garbage and doesn't do the original game justice. That is my beef: The IP law insists that Namco uphold its copyrights/trademarks however it says nothing of the upholding of the quality of their games. I know this much is true, "Super Pac" played better than the official Namco Pacman Android app. So, continue to "cheer Namco on".

Re:Nothing personal

[Blakey Rat]

You're cheering this kind of behavior?

Yes, and here's why:
1) Many people here are defending him (spite is one of my most powerful motivators)
2) I like video games, and I like playing video games, and I want to play new video games. Every ripoff this guy makes is an original game that never happened, because he was too scared to try something new. Fuck that noise.

In fact, some fan based derived games have been accepted by the publishers (ie Capcom and MegaMan2D).

That's a choice they make. Namco has not made that choice.

So, in effect, Namco can claim that smashing small profitless indie endeavors such as "Super Pac" is how they keep a bigger company from making a Pacman game.

Or they could simply be "smashing" a small, profitless indie endeavor that blatantly ripped-off their game. Occam's Razor.

What Namco doesn't see (and what Capcom does) is that the people making and even playing these copies are fans of Pacman.

Ok? Yet so irrelevant.

I know this much is true, "Super Pac" played better than the official Namco Pacman Android app. So, continue to "cheer Namco on".

The game that crashed after level 3? You're a lair.

Translation

[Anonymous Coward]

"no original artwork or sound has been copied" = "I xerox'ed your game 100%, for profit, and I'm shocked you want to do something about it"

Re:Translation

[hedwards]

Those aren't equal. If you look at the screenshot, it's pretty obvious that he didn't take the graphics from Namco Bandai. And as such they don't have grounds for filing a DMCA takedown over it. Any patents related ought to have expired by now, and the only violation of their IP that I can see is the trademark. I assume that they've kept up with that otherwise it would be a very serious violation and probably big enough to take the company down.

The most that Namco Bandai can ask is for the name to be changed and possibly for the images to be made less similar to their trademark. But that's not something that the DMCA takedown notices do.

Re:Translation

[wasabii]

Hah. Yeah right. Recreating images in the likeness of is just as much a copyright violation as hitting copy/paste is.

Clone games go down like this all the time.

Re:Translation

[KDR_11k]

Nonsense, just because the graphics aren't direct rips doesn't mean it's not a derivative work and those are covered by copyright law too.

Re:Translation

[Anonymous Coward]

Those aren't equal. If you look at the screenshot, it's pretty obvious that he didn't take the graphics from Namco Bandai. And as such they don't have grounds for filing a DMCA takedown over it.

I'm writing a book about boy wizard named Barry Kotter who lives in the suburbs and goes off to a mysterious school of magic called Dogwarts. So clearly that's not equal to ...that other book.

Re:Translation

[Surt]

I'd say looking at the images that he pretty clearly DID take the graphics from Namco Bandai. I bet he drew up the copies in something like mspaint.

The method of copying does not have to be exact or binary to be a copyright violation.

Re:Translation

[fishexe]

If you look at the screenshot, it's pretty obvious that he didn't take the graphics from Namco Bandai.

Actually, that's not at all obvious. It's obvious he didn't copy and paste the original verbatim images, but that's not all that copyright covers. It's a violation of a copyrighted image to hand-redraw that image, unless the image is sufficiently transformed to constitute an original and independent work of art. It's generally a violation of copyright to create new images in a way that's intended to so resemble the original that people have trouble telling the difference. There are some exceptions around parodies and social commentary, but this is definitely neither of those.

huh?

[Anonymous Coward]

wait wait
wait
You remade pac-man, down to the name, all mechanics, images (but I didn't copy them!) -- they match likeness; and you're wondering why you got a copyright infringement notice? What? How does this even get posted on /.

Re:huh?

[KDR_11k]

Some people think copyright infringement only covers directly ripping assets from games, not remaking it to look practically the same.

Re:huh?

[multisync]

yeah, silly people, thinking 'copyright' means the exclusive right to make identical copies of something ...

Re:huh?

[Surt]

Exactly. Anyone with half a brain would agree that he copied the artwork. Whether he did that with a xerox, cp, bittorrent or by hand in mspaint is irrelevant.

Re:huh?

[Tharsman]

This post deserves moding up.

Re:huh?

[Blakey Rat]

Some people think copyright infringement only covers directly ripping assets from games, not remaking it to look practically the same.

Those people are known as 'dupes'.

(With apologies to MST3K.)

Re:huh?

[multisync]

Not if you're filing a DMCA takedown notice

Re:huh?

[Surt]

That only matters to the form of the distribution, not the form of the copy.

Lawyers, lawyers, lawyers

[Mindcontrolled]

Hate to say it, but the best advice is to lawyer up. IANAL, but I am working in the IP field, not in the US though. This, of course is no legal advice, but I can't see how you breach their copyright. On the trademark front, though, you might be close to violating theirs - your name is close to the original and strongly alludes to it. With strong trademarks like "Pac-Man", this might be enough to infringe. To get that sorted, however, you will really need a lawyer - the playing field is just to uneven between you and Namco otherwise. Again, IANAL, especially not yours, and this is no legal advice :P

Counter-DMCA notice

[psergiu]

http://www.cs.cmu.edu/~dst/Terrorism/form-letter.html

http://www.chillingeffects.org/question.cgi?QuestionID=132

http://www.crucialp.com/resources/tutorials/web-hosting/how-to-file-dmca-counter-claim.php

http://www.plagiarismtoday.com/2010/06/03/7-common-questions-about-dmca-counter-notices/

Re:Counter-DMCA notice

[aitikin]

I'm sorry, but I have to laugh looking at that first URL. Somehow anti-DMCA stuff gets filed into terrorism at CMU apparently.

Re:Counter-DMCA notice

[fishexe]

Somehow anti-DMCA stuff gets filed into terrorism at CMU apparently.

Well, given how the RIAA has tried to use anti-terrorism laws on infringers, they probably felt that was a reasonable response.

Re:Counter-DMCA notice

[Jerf]

BAD IDEA. Check out the Chilling Effects link: "I understand that I am declaring the above under penalty of perjury, meaning that if I am not telling the truth I may be commiting a crime." Given the analysis posted elsewhere that this really is an infringement, this is a great way to get yourself in a shitload of trouble. Right now, the game will be removed and that will probably be the end of it; filing a counter-infringement notice is asking Namco to come down on you much, much harder. It isn't like asking Namco to come down on you harder, it is an open invitation.

Only counter-file if the DMCA is actually being abused in the legal sense!

Don't rip off games

[Anonymous Coward]

You could try developing something original. Why do you think you can just make money rewriting someone else's idea on a new platform. I looked at the site for your game and I don't know how you cant see that you just ripped off Pac-Man. If I were to release a game based on Super Mario called Super Super Mario and it looked and played exactly the same as the original wouldn't I be guilty of copyright infringement.

Posted as AC cuz slashdot has an anti copyright bias. Im not trolling.

Re:Don't rip off games

[Anonymous Coward]

#DEFINE original

Re:Don't rip off games

[gilgongo]

You could try developing something original. Why do you think you can just make money rewriting someone else's idea on a new platform. [snip]

Posted as AC cuz slashdot has an anti copyright bias. Im not trolling.

I think what you call "anti copyright bias" is just plain common sense in most cases. Nintendo or whoever they are have made a shedload of cash from a single creative event that happened about 30 years ago. They then "rewrote" this idea numerous times and re-sold it because the copyright system allowed them to, and will allow them to pretty much for ever.

How about limiting the TIME of copyright to about 10 years so that people can rip mix and burn stuff to their heart's content, just like they used to a few hundred years ago?

Who knows, maybe we'll derive some BETTER works out of that, and ALL benefit from it. Not just bunch of non-creative suits and lawyers from Namco.

Re:Don't rip off games

[Blakey Rat]

I think what you call "anti copyright bias" is just plain common sense in most cases. Nintendo or whoever they are have made a shedload of cash from a single creative event that happened about 30 years ago. They then "rewrote" this idea numerous times and re-sold it because the copyright system allowed them to, and will allow them to pretty much for ever.

How about limiting the TIME of copyright to about 10 years so that people can rip mix and burn stuff to their heart's content, just like they used to a few hundred years ago?

People are already doing that, though. Super Meat Boy and Braid are two recent examples of games that benefit *a lot* from Nintendo's inventions, but they are allowed to exist just fine. Why? Well, because while they benefit from Nintendo's work, they don't flat-out copy it... this guy? He flat-out copied Pac-Man.

Re:Don't rip off games

[The End Of Days]

People use to rip, mix, and burn a few hundred years ago? That's perhaps the best anti-copyright stance I've ever seen.

Do you have anything more meaningful than "we should dismantle a working system so people can have free stuff, and that might be better?"

Re:Don't rip off games

[Manos_Of_Fate]

Copyright is a public investment in the arts. He doesn't want free stuff, he wants the stuff we've all invested in to become ours at some point in his own lifetime (or his children's, at least).

Re:Don't rip off games

[Anonymous Coward]

#undef original
#define original copy_of_somethng_less_famous_than_pacman

Rome

[ixidor]

i cannot find a link right now, but i seem to remember from Western Civ. class, that as the number of laws went up, the amount of crime went up. to the point that, the eqivilant to police were using laws to punish who ever the did not like, not all criminals. similar to whats going on now with the RIAA/MPAA, going after a small % of the population. Now you need a lawyer just to sell your hard work.

Re:Rome

[Bigjeff5]

Obviously the more laws there are the more laws can be broken, and therefore the more criminals will be.

Simple logic will tell you that.

Without laws there would be no criminals.

Re:Rome

[Surt]

A criminal is by definition someone who violates the law. And police have abused their powers since the beginning of there being police, that's relatively independent of the density of laws, it's more a measure of the corruptibility of human nature. Of course, it worsens the more power police have.

where you from?

[Anonymous Coward]

Would be interesting to know which country you come from since you claim that you dont understand why they regard you to break copyright :)

As usual...

[fuzzyfuzzyfungus]

The best advice is probably "Get a real lawyer", which is generally economically unfeasible.

Speaking strictly as a 'neither a lawyer nor your lawyer' though, Bandai's DMCA notice sounds like bullshit. Your game may well amount to trademark infringement or even step on some kind of insane patent(apparatus and methods for inducing gamer to care about motile pie-chart); but DMCA notices deal only with copyright violations. Not trademarks, not patents, not defamation, not libel, etc.

Unless your game contains sprites/sounds etc. either ripped directly or falling into the category of "derivative work", a DMCA notice is just the cheapest way to get you offline, not a legally correct approach. In fact, not that this ever happens, Bandai may actually have exposed themselves to some sort of liability by bad-faith filing of one, not that that helps you much. Of course, Bandai could likely crush you like a bug with actual lawyers, this is just a low-cost first shot.

Re:As usual...

[Sigma 7]

Unless your game contains sprites/sounds etc. either ripped directly or falling into the category of "derivative work"

They look derivative enough to me. It's also "Based on the classic arcade game Pac-Man", and update 1.05 increased the speed of Pacman. Thus, he is using the character Pacman. The ghosts also appear to be quite close to what they appear in the arcade game.

Still, there's plenty of room to create Pacman clones without using Pacman. For example, CD-Man replaces the pizza with a biped rather, Lock-and-Chase replaces the ghosts with police, and Lady Bug adds spinning walls.

Re:As usual...

[Anonymous Coward]

You should read the "derivative works" section again, because this is exactly that and is covered by copyright. He would be wasting his money with a lawyer in this case. "It's not Super Pac Man because I call it Super Pac, and its not a rip because I drew the characters exactly like the originals myself!" ROFL.

Re:As usual...

[fishexe]

Unless your game contains sprites/sounds etc. either ripped directly or falling into the category of "derivative work", a DMCA notice is just the cheapest way to get you offline, not a legally correct approach.

This is a pretty big "unless." Follow the link, look at his graphics, and see how derivative the graphics actually are. It's pretty hard to see it as non-infringing of the original Pac-man images.

Re:As usual...

[Anonymous Coward]

Unless your game contains sprites/sounds etc. either ripped directly or falling into the category of "derivative work", a DMCA notice is just the cheapest way to get you offline, not a legally correct approach. In fact, not that this ever happens, Bandai may actually have exposed themselves to some sort of liability by bad-faith filing of one, not that that helps you much. Of course, Bandai could likely crush you like a bug with actual lawyers, this is just a low-cost first shot.

So you think I could make a Brownie Charles game by drawing a character that looks exactly like Charlie Brown, but drawn by MY hand, and that's not copyright infringement? You're wrong.

I can see where they're coming from

[atari2600a]

...At least in terms of the trademark. Super Pac is too close to Super Pac-Man ( http://en.wikipedia.org/wiki/Super_Pac-Man ), & when it comes to trademarks, close enough is always too close. There is a chance they may have copyrighted the gameplay or game scenario as well, though with the millions of Pac-Man clones out there that won't hold up in a court IMO.

Re:I can see where they're coming from

[Hognoxious]

Do you know what the C in DCMA stands for? Hint: it isn't "trademark".

Re:I can see where they're coming from

[icebraining]

You can't copyright gameplay. You can patent it, though.

Re:I can see where they're coming from

[Anonymous Coward]

But what about the C in DMCA?

Re:I can see where they're coming from

[Curmudgeonlyoldbloke]

Jim Naughtie's on Slashdot now?

Can't Be The Name

[Bigjeff5]

"Pac-Man" is trademarked, not copyrighted. They would hit you with a cease-and-desist for trademark infringement if that were the case.

I'm not sure how DMCA notices work in detail, so I don't know if a lack of specifics makes it unenforceable or not.

The only thing I can think of that might trip you up is if the map layout is identical. I'm not entirely sure how that would work for Copyright.

It would be a risk on your part to tell Google not to take it down, so you should probably talk to a copyright lawyer first.

Rename it

[whiteboy86]

I am quite certain the problem here is the "Pac" in the name, if the game itself is a Pac-Man lookalike then similar sounding name is an obvious trademark collision. In other words, you can make a Tetris kind of game and put it on the Android market, you just can't name it "Super Tetris".

Re:Rename it

[Bigjeff5]

That's a trademark, not copyright.

I'm quite certain the problem here is that it looks identical to Pac-Man.

Clear case of copyright infringement

[fair use]

Your game is a complete knock off of the original. From your website, it looks like you copied:
(1) the pac man character
(2) the ghosts
(3) the dots and power dots
(3) the style of the maze
This is clear case of copyright infringement.

You say that "no original artwork or sound has been copied", but this is clearly not true. If you draw it yourself to look like the original, it is still a copy. Instead of copying the original do something new. Change the characters. Put the bad guy box in a corner. Have the maze look different.

You clearly have trademark issues as well. "Pac" is distinctive so any name using "pac" will likely be a trademark infringement.

Re:Clear case of copyright infringement

[KDR_11k]

That's what a copy is, something made to resemble the original.

Re:Clear case of copyright infringement

[Blakey Rat]

Look at the screenshot on his site. If you "draw it yourself to look like the original", and it turns out *pixel for pixel* to be identical to the original, how does that differ from copying? We're not dealing with a Van Gogh painting here; we're dealing with a computer graphic composed of limited amounts of pixels.

Re:Clear case of copyright infringement

[Anonymous Coward]

You can however copyright character design.

Re:Clear case of copyright infringement

[blackraven14250]

"Copyright infringement liability for a later work arises only if the later work embodies a substantial amount of protected expression taken from the earlier, underlying work. The later work must take enough protected expression (it does not matter how much unprotected material is taken, for the latter is open to the public) for the later work to be "substantially similar" to the earlier work." -Wikipedia.

That shit is blatantly infringing on the PacMan character, which is absolutely copyrightable. There's also the need for sufficient originality in a work, which this game does not have any of.

Re:Clear case of copyright infringement

[gilgongo]

Your game is a complete knock off of the original. From your website, it looks like you copied:
(1) the pac man character
(2) the ghosts
(3) the dots and power dots
(3) the style of the maze

It's amazing how, in a world full of copyrights and trademarks and patents and intellectual "property" and all sorts, that people just don't understand any of it.

The items you list above CANNOT be a "clear case of copyright infringement" because you cannot copyright an idea. If you could copyright an idea, then Hollywood would probably produce about 1 film a decade while the lawyers researched the script for stuff people had done before ("This script has a cop with a chip on his shoulder. That was done in Lethal Weapon. Next! Nope, you can't have a bunch of 20-something yuppies living together, that was done in Friends.").

There may be a case against the guy for using the word "Pac" in the name of the game, but not even in the wildest dreams of any copyright lawyer are you going to get away with saying that having a ghost in an arcade game is copyright infringement!

What next? Sue Jamiroquai for singing like Steve Wonder?

Re:Clear case of copyright infringement

[Surt]

It doesn't even have to be a pixel-for-pixel match for the original. Just close enough for the judge if it comes to that.

Re:Clear case of copyright infringement

[Surt]

You've misunderstood the parent.
Try rereading it as:

The image of the pac-man.
The image of the ghosts.
The image of the dots and power dots.

All of those are clearly copyrightable, and what he did was an utterly clear case of violation. There is absolutely no chance of him winning in court, even if he wasn't up against a monstrously larger and well financed opponent.

The style of the maze is more interesting. That would probably fall under the special protections for gameplay mechanics.

Re:Clear case of copyright infringement

[techhead79]

He's talking about what they look like not the "idea" of how they work together. It's amazing how, in a world full of copyrights and trademarks and patents and intellectual "property" and all sorts, that people just don't understand any. - hey look I'm unique I left off the last word!!!!

Re:Clear case of copyright infringement

[fishexe]

I hope you aren't a lawyer. You just said a work and a derivative work are the same thing "If you draw it yourself to look like the original, it is still a copy.". That's not only wrong, but stupid.

Except that it's legally accurate. Comedy III Productions v. Gary Saderup. 25 Cal. 4th 387 (2001). (among many others)

Re:Clear case of copyright infringement

[fishexe]

Your game is a complete knock off of the original. From your website, it looks like you copied: (1) the pac man character (2) the ghosts (3) the dots and power dots (3) the style of the maze

It's amazing how, in a world full of copyrights and trademarks and patents and intellectual "property" and all sorts, that people just don't understand any of it.

The items you list above CANNOT be a "clear case of copyright infringement" because you cannot copyright an idea.

While you're correct that you cannot copyright an idea, you can copyright and image, and all of the above-listed things were images copied into the new game from the original.

Re:Clear case of copyright infringement

[bennomatic]

Work: Circle with a wedge cut out, named Pac-Man, in the greater context of a maze-dot-ghost-fruit-powerup game.

Copy: Circle with a wedge cut out, named, alternately Superpac or pacman, in the greater context of an identical maze.dot-ghost-fruit-powerup game.

Derivative work (maybe): Circle with a wedge cut out, wearing a hat, called Cap-Guy. Even better would be if that character were in the context of a Zaxxon-style 3/4-perspective scrolling shoot-em-up.

IANAL, of course, but my understanding is that even if you painstakingly reproduce every element of something, that makes it a copy, not a derivative work.

Let's not forget, of course, that Namco was sued by the makers of Corn Nuts. They that Pac Man was an infringement on their logo--a circle with a curved (i.e. smiling) wedge cut out. I don't recall if that was a copyright or trademark suit, but there was indeed a suit, although clearly it did not end with the destruction of Pac-Man.

Re:Clear case of copyright infringement

[Anonymous Coward]

There was a court case about this in 1984 - Data East v. Epyx.

Data East released Karate Champ in the arcades and then released a home computer version. Shortly afterwards, System III released International Karate in the UK. This was then picked up by Epyx and released as World Karate Championship in the US.

Data East took Epyx to court because they said that World Karate Championship infringed on their game.

The judge (William A Ingram) found 15 points of gameplay similarity between the two games, including the number of moves available, the types of moves and the scoring system. Although the fact that both games depicted Karate tournaments meant that there was always going to be some similarity, the judge ruled that the similarities were just too great and ruled in favour of Data East.

However when this went to appeal, Judge Stephen S. Trott overturned the ruling. He said that in order to prove copyright infringement, you had to prove that actual copying had taken place. In the case of the Karate games, he recognised that the similarities were mainly down to the fact that two games representing a Karate tournament would by necessity be pretty similar and that therefore the test was by looking at the parts of the game outside the actual Karate, where the programmers had a 'creative contribution'. In this case, the backgrounds and scoreboards were not dictated by the subject matter and as these were the areas that were substantially different in the two games, he ruled that copyright infringement had not taken place.

Later when Capcom released Street Fighter II and Data East released Fighter's History, which was a game with similar fighters and similar moves, but with different graphics, the courts ruled in Data East's favour. So similar gameplay, even if not based on a real-life event (as was the case in the Karate games) does not necessarily mean copyright infringement as long as you are making a 'creative contribution'.

IANAL and I have not played your game, but looking at your website, I think that you have a few problems to ensure that you are demonstrating that you are making a 'creative contribution'. You seem to have copied the characters directly from Pac Man - even keeping the same colours for the ghosts and pac-man - if you had used a substantially different design, then you might have a better argument. The maze design is also lifted from the original Pac Man game. You have the dots in more or less the same places (though slightly fewer than the original) and the power pellets in the same location. It is difficult therefore to argue that you are making a creative contribution in this area. Although you have added two new mazes, keeping the original puts you on pretty shaky ground.

Using the trademarked 'Pac-man' on your website is like a red rag to a bull. It is difficult to argue that you are creating a new work if you specifically use trademarked names in your descriptions!

In my opinion you need to show that you are making a creative contribution by changing the name, changing the graphics and removing the original maze. Of course this is likely to take your game some way away from the original and might not be as attractive to your customers. But that is the point. Namco, who own the rights to the original game, have the right to make money off it - you don't. If you can come up with something inspired by the original game, but which adds significant creative contributions of your own, then you can do so, and best of luck to you. But simply ripping off somebody else's work is not acceptable.

With reference to "The Ultimate History of Video Games" by Stephen L. Kent, ISBN 0-7615-3643-4 for details of the court cases.

Re:Clear case of copyright infringement

[Anonymous Coward]

If you look at his website it appears that all his games are a knock off of another game. Almost all of the descriptions for his games read like this - "This game was inspired by (insert game title)" Also if you read the comments on his site it appears that he makes very buggy knock offs.

Re:Clear case of copyright infringement

[Late Adopter]

You can copyright the fixed expression of an idea, like the Pacman software and promotional artwork. And that covers derivative works, even if you don't use a technical process to translate the old bits to make the new bits.

Re:Clear case of copyright infringement

[binaryseraph]

You clearly have trademark issues as well. "Pac" is distinctive so any name using "pac" will likely be a trademark infringement.

Yeah you are better off calling it Super Face.... errmm..

Re:Clear case of copyright infringement

[Anonymous Coward]

Pac-man was created in 1980. By the original terms of copyright in the US, it should be in the public domain by now, and free for people to port it to new platforms without getting sued. (Of course, copyright has been rather extended since then.)

Trademark vs copyright?

[Anonymous Coward]

Your web site says: "27 Nov 2010 - Super Pac V1.05 released - Increased speed of Pacman"

Perhaps the fact that Pacman is in your game has something to do with it? This is trademark, not copyright, aren't Pacman's look and name trademarked?

You might also avoid using the same terms

[Anonymous Coward]

Any video game with "Pac" in the title is inviting trouble, unless it's a virtual Political Action Committee, and maybe even then.

There was a guy in Kansas who had to change the name of his restaurant because it had "Big Mac" in the title.

While I suppose it's possible to emulate the look-and-feel of a popular game without getting sued, it's asking for trouble

Sorry, Captain Hindsight doesn't have better advice than you've already gotten here. I'm no lawyer either, but I would think you should be able to get access to your work-product to modify it. But it will probably take some kind of legal stand to make that happen, and I have no idea what the terms of use for creating apps are (small print: we own your soul!). Reading those would be where I'd start.

Just my 2 cents.
.

Seriously, you are whats wrong with the world

[Anonymous Coward]

If you are seriously complaining that you totally ripped off an extremely famous game for profit and got called out. Consider yourself lucky thats all they did!

Re:Seriously, you are whats wrong with the world

[gilgongo]

If you are seriously complaining that you totally ripped off an extremely famous game for profit and got called out. Consider yourself lucky thats all they did!

I'd say that this is in fact what's wrong with *copyright* (if this is a case of copyright infringement, which I doubt).

Nintendo had the original idea for Pac Man in the friggin' 1980s! Don't you think it's been enough time for them to have made some money off it so we can now do our own versions?

The fact that cigar-smoking nobodies can build swimming pools and retire on huge pension for decades and decades on the back of some tiny act of creative genius is ridiculous.

I hope this guy wins, and better still, goes on to make a good deal of money from his own interpretation of Pac Man.

Re:Seriously, you are whats wrong with the world

[techhead79]

So what your logic is they have enough money so now it's time someone else cashes in on their idea?...oh right you can't copyright an "idea". So what your logic is they have enough money so now it's time someone else cashes in on their game's look/graphics?

Sounds like you're just upset you were not the owner of the company that first created it. You paint a picture of two or three men living it up at the cost of some slave driven coder. The reality is the income made from the game supports a company. And in japan at least the income differences between a ceo and the company's lower workers is not as extreme as it is in the US. So who are these fat smoking idiots again? http://en.wikipedia.org/wiki/Pac-Man

The game was developed primarily by a young Namco employee named Tru Iwatani over the course of a year, beginning in April 1979, employing a nine-man team. It was based on the concept of eating, and the original Japanese title was Pakkuman (?), inspired by the Japanese folk hero "Paku" who was known for his appetite[disputed – discuss] as well as by the Japanese onomatopoeic slang phrase paku-paku taberu (?),[31][32] where paku-paku describes (the sound of) the mouth movement when widely opened and then closed in succession.[33] Although Iwatani has repeatedly stated that the character's shape was inspired by a pizza missing a slice,[10] he admitted in a 1986 interview that this was a half-truth and the character design also came from simplifying and rounding out the Japanese character for mouth, kuchi ().[34] Iwatani attempted to appeal to a wider audience—beyond the typical demographics of young boys and teenagers. This led him to add elements of a maze, as well as cute ghost enemy characters. The result was a game he named Puck Man.[35] Later that year, the game was picked up for manufacture in the United States by Bally division Midway.[34] For the North American market, the name was changed from Puck Man to Pac-Man, as it was thought that vandals would be likely to change the P in "puck" to an F, forming a common expletive. The cabinet artwork was also changed.[36]

Re:Seriously, you are whats wrong with the world

[fishexe]

Namco had the original idea for Pac Man in the friggin' 1970s!

There, fixed that for you. (source)

Re:Seriously, you are whats wrong with the world

[nedlohs]

No his logic is that 30 years is long enough for society to grant them protection for their game. They've had a long enough run with it and it's well past time for pacman to enter into the public domain.

Of course copyright hasn't been that short since 1830...

Do NOT ask slashdot...

[Anonymous Coward]

1) Never ask slashdot for legal advice. You'll get advice from engineers who have good instincts but no formal training in the law. Formal training matters, because the law doesn't always make sense--at least not the kind of sense an engineer is used to. Despite attempts from the law and economics school to make law efficient (at the cost of any notion of morality), it is not.

2) Never ask slashdot for legal advice. We are not attorneys, so there is not likely to be attorney-client privilege. Attorneys who issued the notice could be reading all of this right now, or could do so later. Anyone here might happen to know the lawyer representing pac-man today; maybe they went to school with him. Maybe they had a party with his wife. Or maybe something embarassing will come up during discovery, if this ever goes that far.

3) Never ask slashdot for legal advice. But if you do, do not trust the advice to be right.

4) IANAL, and this is not legal advice.

Re:Do NOT ask slashdot...

[fishexe]

Yeah, that. ESPECIALLY #2. If you go into court against Namco now, everything you've said on /. and everything we've said back can be entered into evidence against you, and the other side will know your legal strategy too. This may not sound like a big deal now, but you never know what could happen. The large numbers of posts saying "dude, all you did was rip off pac-man!" could be entered into evidence to show that even a sympathetic community can't tell the difference between yours and the original, for example. That's just one possibility out of many.

Re:Do NOT ask slashdot...

[Brett Buck]

And, since that is in fact what he did, it would be a very good legal step. I can't see how anyone can defend the guy. It may well be a misuse of the DMCA but I guarantee there is some infringment of trademark or something in that area. He is clearly and admittedly trying to profit from someone else's work and legacy. I fail to see why that is laudable.

WANLs

[wasabii]

Hire a lawyer. He'll file a counter notice, and defend you in the lawsuit. Or preemptively sue.

Or hire a wizard and have him wave his fingers to make your game clone go away.

Re:WANLs

[Tharsman]

He will also take your money and you will loose.

If you happen to meet a honest lawyer, though, he will laugh you out off the office.

Re:As usual... [WRONG]

[fair use]

Don't listen to this guy. He doesn't know what he is talking about, and if he was a lawyer he would likely be committing malpractice. Many DMCA notices are unjustified, but this one clearly is justified.

Abandon your game.

[Anonymous Coward]

Seriously, just drop it.

Don't torture yourself by trying to fight a fight that you will never win.

Start over (from scratch) with something else.

Make up something *original* next time.

Good luck.

Not a lawyer...

[gnasher719]

First, what is a DMCA notice for: There are three parties involved; you, Bandai, and Google. The DMCA notice says: Google can either throw you out or be part of the copyright infringement. Google wants nothing to do with any copyright infringement, so they throw you out. You, on the other hand, can send a latter to Google claiming that you didn't commit any copyright infringement. Google will then reinstate you - they played by the rules of the DMCA act, and they will not be liable for any copyright infringement. And Bandai _will_ take you to court. Guaranteed. If you do nothing, then Bandai may be happy that they achieved their goal, or take you to court.

Now examine your situation. First, did you commit their copyright or not? Copying the game play is most likely copyright infringement. If you did commit copyright infringement, then the best you can do is hope you don't get sued. If you didn't commit copyright infringement, the situation is roughly the same unless you have lots of money to defend yourself. One iron rule: Don't talk to them without a lawyer. Anything you say will be used against you. If you can't afford a lawyer, don't talk to them unless you have to. And if you have to, get a lawyer whether you can afford it or not.

Re:Not a lawyer...

[simon0411]

Game play is not copyrightable. However, it is very clear this guy copied the character design, map design, and "general spirit" of Pac-Man. Those are copyrightable, and it doesn't matter what method was used to do the copying, it doesn't matter that he didn't lift assets directly from Pac-Man; they are similar enough when taken as a whole to be clear infringement. And let's not forget about the blatant trademark infringement (Pac is a unique word, so its trademark protection is extra strong.) He doesn't need a lawyer. He needs to remake his game with original characters/level designs/storyline, i.e. actually become creative, or partner with someone who is.

Re:Not a lawyer...

[fishexe]

Now examine your situation. First, did you commit their copyright or not? Copying the game play is most likely copyright infringement.

This seems to be a common misconception. As a law student who's studied copyright, let me clear this up right now: copying the game play is never copyright infringement. On the other hand, he appears to have copied nearly all of the images (yes, redrawing something from scratch to look like the original is "copying" in most cases) and is probably on the hook for that.

One iron rule: Don't talk to them without a lawyer. Anything you say will be used against you.

Right on, and I would add to that: don't talk to Slashdot without a lawyer. Anything you say to the Slashdot community or that the community says back will also be used against you. It was really poor judgment to let us know what the game in question and the company sending the takedown notice were, rather than trying for anonymity with something like "I am selling a game which is a remake of a well-known game and the publisher has issued a takedown notice"...be generic or you risk hurting your case.

Re:Not a lawyer...

[fishexe]

He needs to remake his game with original characters/level designs/storyline, i.e. actually become creative, or partner with someone who is.

...or partner with Namco to release the game legitimately and give them their fair cut, rather than sneaking around like he was.

Re:Not a lawyer...

[Anonymous Coward]

> Copying the game play is most likely copyright infringement.

Gameplay cannot be copyrighted: http://www.copyright.gov/fls/fl108.pdf

Do not wake the sleeping giant

[SuperKendall]

I agree with others. You could probably file a counter-DMCA notice, and be fine.

Then, NamBandiCo will take more notice, look at your game, and sue your pants and several layers of skin from you for blatant infringement. And they will (rightfully) win. And it will be good. For them.

So basically, count yourself lucky you only have a DMCA notice and call it a day.

Slashdotters please....

[Dexter Herbivore]

Have a look at this game, the guy has ripped off Pacman... there is no doubt. I'm sorry, but he's pleading innocent when he's trying to profit off an established product. Not only that, he's tried to ride their coat-tails by including "pac" in the title. I'm all for fighting bad DMCA notices but this one has been targeted appropriately and andriodstevep should be ashamed of himself for trying to so blatantly rip off an existing product.

Hiring an attorney may be cheaper than you think

[Grond]

(Note: I am an IP attorney, but I am not your IP attorney. This is not legal advice.)

You should consult a competent IP attorney in your jurisdiction. Many attorneys offer free consultations, sliding fee scales, fixed-fee arrangements, and many also do outright pro bono work. Many attorneys, especially IP attorneys, are often nerds themselves and are likely to be sympathetic and willing to work with you to develop a custom fee arrangement. In this economy a lot of attorneys have free time and are going to be more willing to work for cheap or free in the hopes of developing better paying business in the future. Don't be afraid to ask directly about costs.

All that said, you definitely don't want to ignore this. The Pac-Man copyrights are well-established and well-defended in court. You really should consult an attorney.

EFF

[doherty]

You should speak with EFF about this. They might be able to offer you (real) legal advice, and if there is a defense to be mounted, might represent you. http://eff.org/

your statement is factually incorrect

[Surt]

Looking at your artwork, it seems obvious that you copied theirs. Probably not with a photcopier, or a binary file copy, but with a paint program of some sort I'd guess. It's still copying. Whatever you believe about the rightness/wrongness of copyright itself, I think you'd be hard pressed to find even a tiny fraction of the population that wouldn't say this fits the definition of copying.

trademark not copyright

[nten]

SuperPacman is a trademark, you cannot copyright a name. I think a court would rule that "super pac" is too close to the original trademark. However, copying the "look and feel" of a game using different code and different art, is not copyright infringement. There are multiple precedents for this. If he had borrowed either code or art it would be considered a derivative work under copyright. Its software patents that are used when software preforms the same function as software you wrote first, but I doubt pacman was patented.

This wasn't legal advice, I'm just regurgitating the sage advice of past /.ers who said TWAL.

Re:trademark not copyright

[Xest]

"However, copying the "look and feel" of a game using different code and different art, is not copyright infringement."

No, this is completely wrong. If you copy the characters- i.e. Pacman, then it IS copyright infringement, that is Namco's IP.

What you're thinking of is gameplay- that's something you can copy. You absolutely can create a game where you go round a maze collecting things whilst being chased by enemies, that's no problem, but copying the fundamental IP such as the characters or the storyline is a problem. That's why this is copyright infringement.

Re:trademark not copyright

[Anonymous Coward]

Okay, you addressed the name. Now, what about the characters and game mechanics?

Re:trademark not copyright

[Anonymous Brave Guy]

As the Wikipedians would say, [citation needed].

If they've copied things like graphics from the original game, then that is almost certainly a violation of copyright.

If they have only copied the ideas, but used original artwork etc., then that is an entirely different situation. For example, storylines are not inherently subject to copyright, which is lucky for every "boy meets girl, boy loses girl, boy gets girl" romance author.

Re:trademark not copyright

[fishexe]

"However, copying the "look and feel" of a game using different code and different art, is not copyright infringement."

No, this is completely wrong. If you copy the characters- i.e. Pacman, then it IS copyright infringement, that is Namco's IP.

What part of "different art" don't you understand?

What you're thinking of is gameplay- that's something you can copy.

Yeah, that's the feel part of "look and feel".

You absolutely can create a game where you go round a maze collecting things whilst being chased by enemies, that's no problem, but copying the fundamental IP such as the characters or the storyline is a problem. That's why this is copyright infringement.

So anything that's IP is necessarily copyright? Where did you study law???

Re:trademark not copyright

[Anonymous Coward]

The distinction being missed here is what "copying art" means. It doesn't just mean not copying the actual files, it means not using the same art, regardless of who drew it. I couldn't go draw an exact picture of Mickey Mouse but call him something else and claim it be original just because I didn't break into Disney and steal their cells.

Re:trademark not copyright

[MattW]

There's obviously going to be a judgment call at some point.

Are stories about boy wizard orphans all protected by copyright? Of course not.

But if you make a story about Larry Potter and his trip to Gogworts from platform 8 and 3/4s, you should expect to get sued as a copyright infringer.

In this case, one example of problematic content that would, I think, be infringing, is the maze itself (shown on the developer page). There are almost an infinite number of ways to structure a maze but at a glance, it appears he has ripped off the exact layout of one or more of the Pac-Man mazes. (Pac-Man and the ghosts seem nearly identical, too; was the artwork literally copied? It doesn't need to be. If you sit down and sketch a mouse that is "inspired by" Mickey Mouse, it doesn't have to be a perfect copy for it to be infringing.)

Re:trademark not copyright

[Anonymous Coward]

Pacman has a storyline?

Re:trademark not copyright

[NoSig]

Wait... Pacman has a storyline outside of "nom nom nom aarrgh ghost nom nom nom"!?

Re:trademark not copyright

[Anonymous Coward]

Either way, it's lame.

If you are going to spend the time coding something, at least make a minuscule effort to do something original rather than 'yet another blatant rip-off''.

Re:trademark not copyright

[Lunix Nutcase]

What part of "different art" don't you understand?

Which is irrelevant. One doesn't need to copy the exact art assets to face copyright infringement issues. People like you need to realize that the law doesn't much such hard distinctions and there is no case law to back up your interpretation.

Re:trademark not copyright

[Yvanhoe]

But if you make a story about Larry Potter and his trip to Gogworts from platform 8 and 3/4s, you should expect to get sued as a copyright infringer.

On which ground ? Plagiarism is not copyright infringement. I had this interesting read from Stross on fanfiction : http://www.antipope.org/charlie/blog-static/2010/05/faq-fanfic.html
And here is what this serious guy who has lawyers says :

If you want to sell fanfic based on my work, you have three options:
1. File off the serial numbers, rename the characters, and try to sell it as All Your Own Work. This is, believe it or not, neither illegal nor immoral and I have no problem with it as long as you don't try to market it on the back of my name and reputation.
...

Re:trademark not copyright

[Anonymous Coward]

You are still confusing copyright with trademark. A name or logo or character would be IP that is handled by trademark law, not copyright law. The game concept of having a character eat pills while traveling a maze-like map and munching larger pills so he can eat ghosts could also be conceivably covered under patent law. None of this falls under copyright.

Re:trademark not copyright

[rworne]

How about Minesweeper?

http://www.youtube.com/watch?v=LHY8NKj3RKs

Re:trademark not copyright

[sosume]

" If you copy the characters- i.e. Pacman, then it IS copyright infringement, that is Namco's IP."

Because Namco invented ghosts. And mazes. And pie charts too, now that we're at it.

Re:trademark not copyright

[Creepy]

yes, and this is also not the first time - K.C. Munchkin and Snapper had the same problem, and Atari went after others, as well, but I remember several clones that survived - Gobbler, Puck Man and Super Puck Man, Snack Attack!, etc. There also were play-alikes with some gameplay changed like Microwave and Lock 'n' Chase.

I'm fairly certain the creator of super puck man got sued, however there doesn't seem to be much info on the intertubes since it pre-dates them. Reminded me of searching for info on the Super Pirates of Minneapolis (I know it was one of the first major software pirate rings busted by the FBI - I was trying to figure out if it was the first or if there were others).

Re:trademark not copyright

[Anonymous Coward]

No problem. Just write a story about Leisure Suit Harry instead.

Re:trademark not copyright

[Rary]

I think the point the GP and the GGGP was making was that, while what you've described might be a violation of various Intellectual Property (the thing that encompasses trademarks, patents, and copyrights), the particular brand of Intellectual Property that may (or may not) be violated is not copyrights. Trademarks, probably. Patents, maybe. Copyrights, definitely not.

You can't copyright a name, or a character. Those would be trademarks. So, while there may be an IP infringement case, there is not a copyright infringement case. Since the "C" in "DMCA" stands for "Copyright", there can be no DMCA violation if there is no copyright violation.

IANAL*, IDNRTFA**, and IOIOPCH***.

*IANAL: I Am Not A Lawyer
**IDNRTFA: I Did Not Read The Frickin' Article
***IOIOPCH: I'm Only Interpreting Other People's Comments Here

Re:trademark not copyright

[genner]

Wait... Pacman has a storyline outside of "nom nom nom aarrgh ghost nom nom nom"!?

yes
http://www.youtube.com/watch?v=n3n22GQMgcU&playnext=1&list=PLAD314629A9CB1ED9&index=10

Re:trademark not copyright

[bennomatic]

For some reason, your post reminded me of a movie that came out at the same time that Disney's Lion King came out on DVD. This other movie--a straight-to-DVD release--was called (small letters) Larry the (HUGE LETTERS) LION (newline) KING (small letters) of the Jungle.

I wonder how many people got suckered into buying or renting that when they meant to get the "real thing".

Re:trademark not copyright

[Anonymous Coward]

But if you make a story about Larry Potter and his trip to Gogworts from platform 8 and 3/4s, you should expect to get sued as a copyright infringer.

Actually, the author of the Barry Trotter books seems to be doing ok, although he gets away with it as parody.

Re:trademark not copyright

[Anonymous Coward]

But if you make a story about Larry Potter and his trip to Gogworts from platform 8 and 3/4s, you should expect to get sued as a copyright infringer.

Really? Someone should sue everyone in the porn industry

(yes I know these ones aren't real.)

Re:trademark not copyright

[Xest]

"If they've copied things like graphics from the original game, then that is almost certainly a violation of copyright."

Which they pretty much have, hence why I made the comments I did. If it was a fringe case, I'd instead be encouraging him to look into fighting it, but as it's such a close clone I think he'd be stupid to do so.

"For example, storylines are not inherently subject to copyright"

Meh, perhaps I wasn't clear enough. If you copy the storyline including character names, settings and so forth then they certainly are, but if you're talking about rough outline of the story then you're right. I was referring to the former case.

Re:trademark not copyright

[Xest]

No, but they put them all together into a game where you go around munching power pills.

This is the problem with copyright in this case, and something many Slashdotters are apparently struggling with- it's not the individual components that matter, it's the whole thing that constitutes Namco's copyrighted work and it's creating a clone of the whole that is the problem.

Re:trademark not copyright

[Theaetetus]

As the Wikipedians would say, [citation needed].

If they've copied things like graphics from the original game, then that is almost certainly a violation of copyright.

If they have only copied the ideas, but used original artwork etc., then that is an entirely different situation. For example, storylines are not inherently subject to copyright, which is lucky for every "boy meets girl, boy loses girl, boy gets girl" romance author.

Yes, which is what the parent poster said. Storyline, in this context, is equivalent to gameplay - they can't claim copyright on running around a maze collecting things while being chased.

That said, they can have copyright in a character, provided that character is sufficiently developed. In other words, you can't copyright "cartoon mouse," but you can copyright "cartoon anthropomorphic mouse with two giant round ears that are approximately the same size as his head, named Mickey Mouse, who wears red shorts with white buttons, yellow shoes, and has black fur/skin, and pals around with Donald Duck, Goofy Dawg and his on-again-off-again girlfriend Minnie Mouse (no relation)."

Similarly, you can't copyright boy-meets-girl, but you can copyright Edward Scissorhands, who meets a girl.

Re:trademark not copyright

[fishexe]

What part of "different art" don't you understand?

Which is irrelevant.

No it's not, it's the whole point of what nten was saying and the whole thing that Xest was missing. Xest was making a claim that copying "look and feel" was a violation based on assuming "look and feel" included the art.

One doesn't need to copy the exact art assets to face copyright infringement issues.

No shit, Sherlock. I never said they did need to. I was responding to someone who said "copying look and feel with different art" was the same as "copying the characters".

People like you need to realize that the law doesn't much such hard distinctions and there is no case law to back up your interpretation.

And people like you need to learn (A) to actually argue the point at issue instead of something basically unrelated and (B) that you're full of shit because Apple v. Microsoft is case law that p. much says EXACTLY my interpretation.

Re:trademark not copyright

[dgatwood]

It's a fine line. Two people draw a picture of the Grand Canyon. One starts by taking a famous photograph and painting it. The other goes to where that photo was taken. At what point is copyright violated? Is knowing that the picture was taken from that point a violation of copyright? Probably not. Is painting the actual photo? Probably. A person paints a picture of Mickey Mouse based collectively on hundreds of images of Mickey Mouse and does so in a style that differs substantively from the original. Is that a copyright violation? It starts to get pretty fuzzy. (It's definitely a trademark violation, though.) Is copying the look of something as trivial as Pac-Man characters a violation? Maybe.

Now given that something a simple as a Pac-Man character would almost inherently look fairly similar to the original, that does raise the question of whether the original work contains sufficient originality to be protectable by copyright in the first place. I don't have an opinion on that, but I wouldn't want to be the one trying to use that as my defense. My guess is that the work is protectable by copyright and that this derivative work is not of a sufficiently transformative nature and looks way too similar to the original, and as such represents an infringing unauthorized derivative work. That said, IANAL, and the original poster should really contact someone who is instead of posting on Slashdot.

Re:trademark not copyright

[Xest]

"You can't copyright a name, or a character. Those would be trademarks."

A lot of people seem to be getting confused over this. You can't copyright a name in the general case- for example, you can't copyright Mario and Luigi as names, but you can have them protected by copyright as part of your greater IP- i.e. as names for plumbers who jump around on mushrooms and chase princesses or whatever.

Many slashdotters are pointing out that you can't copyright constituent parts of an IP by themselves and this understanding is completely correct, what they don't seem to realise is that you can copyright a game, a film and so forth and that covers the set of IP in that, so in the case of a small yellow circle with a mouth moving round a maze called Pacman, then yes the use of Pacman absolutely is copyright infringement.

Copyright protects the whole IP and you can't use copyright to protect constituent components of that IP individually, but you can use copyright to protect that IP as a whole. As such in a case like this changing the name IS an important part of avoiding copyright infringement issues because the name is part - not all certainly, but definitely part - of the copyrighted IP.

This is why it's a copyright violation, this is why the DMCA is relevant.

Re:trademark not copyright

[PopeRatzo]

Is painting the actual photo? Probably

Why?

Re:trademark not copyright

[Anonymous Coward]

http://www.iisandroid.com/wp-content/uploads/2010/11/10522548app-200x300.jpg

I dunno about you, but that looks pretty much like Pac-Man to me, original art or not.
Maybe if OP used a hero that didn't look like a yellow part-circle, or ghosts that didn't look almost exactly like Blinky, Pink, Speedy and Clyde he'd have a chance.

How about a little rodent eating up crumbs and bits of cheese whlist running away from two cats and a mechanized mouse trap?

Captcha: consort

Re:trademark not copyright

[dgatwood]

Because the painting is a copyrighted work. There is artistic value added in the framing, in the perspective, in the time of day the photo was taken, etc.

Re:trademark not copyright

[mcvos]

"However, copying the "look and feel" of a game using different code and different art, is not copyright infringement."

No, this is completely wrong. If you copy the characters- i.e. Pacman, then it IS copyright infringement, that is Namco's IP.

What does that even mean? There is no generic IP. There's copyright and there's trademarks (which serve entirely different purposes, mind you). If you copy a character's name, you might be violating a trademark, depending on how unique and distinctive that name is. If you copy a character's appearance, you might be violating copyright, depending on how accurately you copy its distinctiveness. But what does "copy the characters" mean? You can easily copy the character's behaviour, for example. And if name and appearance aren't special enough, you might be able to copy those too.

Re:trademark not copyright

[Anonymous Coward]

Surely you meant this: Pac Man: The Movie

Re:trademark not copyright

[ehrichweiss]

I dunno but that is the exact same thing that got the band Negativland(http://www.negativland.com ) sued by U2 over their(Negativland's) album called "U2".

Re:trademark not copyright

[Purity Of Essence]

In this case, one example of problematic content that would, I think, be infringing, is the maze itself (shown on the developer page).

You hit the nail on the head. That's exactly the problem here and Namco is 100% in the right. I'm amazed the author doesn't understand this.

There are numerous other potential problems that would be magnets for DMCA harassment, but the copying of the maze is blatant and indefensible, even if it does feature a slightly different arrangement and number of dots.

Re:trademark not copyright

[Anonymous Coward]

http://en.wikipedia.org/wiki/Fair_use#Fair_use_and_parody

Re:trademark not copyright

[Pharmboy]

But this example isn't plagiarism, which would be legal in this instance. This particular case is only like "plagiarism" if you consider looking at the book, and then copying virtually every single word in it, but it is now in your handwriting.

While not a legal standard per se, one of the old standbys to prevent being accused of copyright infringement is to make sure your version is different in three significant ways. If the guy didn't use the word PAC anywhere, made the characters different colors and look at least arguably different, and the maps were similar but obviously different, we wouldn't be discussing it. It would be a legit clone. Instead, it almost looks like an official version of the game at a glance, which obviously hurts the IP owner's ability to profit from their own previous work. That is the entire purpose of all these IP laws: to give the original creator a limited time monopoly on their original work, and prevent some clown from just making a copy and paste version of it to undercut them on price. What this guy did is almost a counterfeit version. I'm sure his intentions weren't bad, but it is what it is.

Re:trademark not copyright

[RobertM1968]

For example, storylines are not inherently subject to copyright, which is lucky for every "boy meets girl, boy loses girl, boy gets girl" romance author.

I think you should have went with a car analogy... honestly, how many slashdotters will understand the analogy you used?

Re:trademark not copyright

[jrumney]

If they have only copied the ideas, but used original artwork etc.

Does the law distinguish between electronic copying and copying by hand? If the characters look the same as the original characters, then they are copied, whether it was by screen grabbing or hand drawing.

Re:trademark not copyright

[jrumney]

It's a fine line. Two people draw a picture of the Grand Canyon.

Technically painting the photo would be copyright infringement, but it would be hard to prove. There is no reference point for drawing Mickey Mouse or Pacman for which that is true, however.

Re:trademark not copyright

[vux984]

If we accept that a photo is covered by copyright. (And legally this is absolutely the case), then a
a painting of a photo is clearly a derivative work.

Re:trademark not copyright

[Anonymous Coward]

Just because you didn't copy the binary file or source code doesn't meant that your artwork is "original". Think about the origins of copyright... they didn't have photocopiers back in the 1700s, but you weren't allowed to reproduce the same text and call it an original work. What this guy did was the equivalent of retyping a book, giving it a derivative title, and crying when the original content creator called foul. This is exactly the scenario that copyright should protect against.

I hope he takes it to court and gets trounced. What a leech.

Re:trademark not copyright

[dgatwood]

I would argue that any instantiation in the real world---and there are, after all, stuffed Mickey Mouse dolls, people walking around in suits at theme parks, etc.---is as good a reference point as the Grand Canyon. Pac-Man, not so much, perhaps. At some point, the existence of the object in the real world provides at minimum a fair use defense, e.g. taking or painting a picture of the guy in the Mickey costume talking to your kids. This doesn't help with trademark infringement, of course.

With Pac-Man, it isn't so much that there's a frame of reference, but rather that the imagery itself is trivial, and it's not clear whether it is substantive enough to even have copyright protection as a standalone work. It is basically a crude one-color representation of a pie with a slice taken out of it and a dot for an eye. I mean, I can draw a stick figure, but that doesn't mean it should enjoy copyright protection for the next hundred plus years, nor that I should have the right to sue somebody for drawing a similar stick figure. That's basically the level of artistry we're talking about here. Like I said, it's not clear-cut.

Re:trademark not copyright

[PopeRatzo]

a painting of a photo is clearly a derivative work.

So, a painting of a trademarked object, say a Campbell's Soup can, would be a violation? How about a painting of a photograph of Mao Tse Tung or Marilyn Monroe?

And how accurate would the painting of a photograph have to be before it would be considered a derivative work? If I did an abstract painting of the Mona Lisa, would that be a violation? How about if I did an oil painting of a photograph of the Mona Lisa?

Copyright of visual media is very tricky. If I do an oil painting of a Paul Klee work, and I tried to pass it off as the Paul Klee work, then I'm an art forger. But if I take the Mona Lisa, and do a watercolor of it, then it's an interpretation (and transgressive) and clearly would not be a violation. If I do a cubist interpretation of a photograph by Ansel Adams, is it less of a violation than if I did a hyperrealist painting of it? So if a cubist interpretation is at one end of the scale, and a hyperrealist painting of the Ansel Adams landscape is at the other end, how do we decide at what point it's too close?

Here's my answer: It only becomes a violation if I try to pass the "derivative" work off as the work of the other guy. As long as I say, "This is my watercolor version of an Ansel Adams landscape, and sign my name, then it cannot be considered a violation of copyright.

I realize that this is not the way the intellectual property racket or the RIAA or the MPAA see it, but this is just a theoretical conversation here. Except for the part about a painting of a Campbell Soup can or a famous photograph of Mao Tse Tung or Marilyn Monroe. All of those were done by Andy Warhol, of course, and his "derivative" work is way way way more valuable than the original in each case.

Re:trademark not copyright

[Anonymous Coward]

This is *not* copyright. Go ask a lawyer about it.

This is how large companies *steal* ideas from independents and previous ones, rework them and release them as their own. You cannot copyright an idea. The only thing that is copyrightable in the game are graphics and code, and you can reproduce your own versions of said work.

PacMan though, is a trademark. They cannot use a name. They could use Cookie-Eater-Man or whatever, but having Pac is confusing...

Anyway, whoever even thinks this is copyright, they do not know the law. Period.

PS. If levels and graphics are identical, then DMCA may be justified, but then the author can dispute it. Otherwise the DMCA notice is not even justifiable and they should be prosecuted for malicious notice.

Re:trademark not copyright

[Anonymous Coward]

The only thing that is copyrightable in the game are graphics and code, and you can reproduce your own versions of said work.

You fail it. Derivative works are covered under copyright, as many other posters have pointed out. This is clearly derivative, i.e. he would never have designed it that way if the original Pac-Man hadn't been created by Namco.

Re:trademark not copyright

[Sethumme]

Violation of copyright "if you try to pass the 'derivative' work off as the work of the other guy"? You are mixing up art forgery and copyright violations. Quite different.

In fact, if you use a photograph as a direct guide for a derivative painting without getting permission from the photograph's copyright holder, the you will be violating copyright. It's simply a matter of whether the copyright holder decides to press the issue. Even Andy Warhol was sued for using Patricia Caulfield's photograph in his prints. And since trademarks are not about image ownership, but rather brand association, it's perfectly fine to use a trademarked image in transformative way and in a different market or industry than the commercial sector that the trademark actually exists in. In Warhol's case, it helped that Campbell's Soup enjoyed his works, but it wasn't the deciding factor.

I understand you're not claiming your description is how IP works, and just how you wished it worked, but you're way off base from the current legal system. You're right that there's a scale, and it's often the whole point of a lawsuit to decide where on the scale your work actually falls. There are guidelines, but it still has to be decided on a case-by-case basis. The reason you can do an interpretation on the Mona Lisa is because it is not protected by copyright (Public Domain!). A cubist interpretation of a current work still under copyright protection, if identifiable as a derivative work (or if you say you derived it from another work), would fall under the regulations of copyright derivatives. Then it's up to the court and jury to decide if you were co-opting too much of the protected work (and it wouldn't help that you were working in the same format -- 2D visual art). Using the same subject matter as depicted in an existing work is not a violation of copyright unless you were using their actual work as the source (at least as far as the other side can successfully demonstrate that to a jury). IANAL, etc.

Re:trademark not copyright

[vertinox]

No, this is completely wrong. If you copy the characters- i.e. Pacman, then it IS copyright infringement, that is Namco's IP.

No. Characters are not covered by copyright, but the media about them.

In theory, you could write your own fanfiction of "Harry Potter" and publish it as long as you don't use any source material of the original books and not violate copyright.

You can be sure as heck to be violating a trademark though.

http://wiki.answers.com/Q/Can_you_get_a_copyright_on_a_character

Re:trademark not copyright

[Anonymous Brave Guy]

Oh, I think plenty of Slashdotters get the first two parts of the analogy. It's that final step that always seems just a little too elusive...

Re:trademark not copyright

[Thing 1]

Copyright law actually got easier of late: if the original work was written before 1923, you're in the clear. Otherwise, you have to pay Disney.

Re:trademark not copyright

[Xest]

In the gaming industry when talking about IP it's a reference to the combined constituent parts of the game- the characters (names, visual depictions, etc), the storyline, the world, the sounds etc.

You don't copyright constituent parts individually, you copyright the work as a whole. When considering a case of infringement there will be a comparison between the constituent parts of the original work, and the alleged infringing work and that comparison will involve character names. If the alleged infringing game was just using the same names of characters and nothing more than it's unlikely a copyright case would rule in their favour, and in fact, it's unlikely even a trademark case would, but if you create a game where the characters look the same, and are named the same then it will be a violation of copyright because copyright protects the work as a whole, including all it's constituent parts.

Trademarks protect against use of say, "Sonic the Hedgehog" in a 3rd party game created without permission, even if that game is nothing like any of the existing Sonic games. A copyright case would not be sufficient here because not enough IP from an existing Sonic game has been copied.

This is why naming is relevant in copyright cases- because it's part of an overall copyrighted work that must be considered in an infringement case.

Re:trademark not copyright

[RobertM1968]

Oh, I think plenty of Slashdotters get the first two parts of the analogy. It's that final step that always seems just a little too elusive...

LoL, I stand corrected!!! :-)

(did I actually just type LoL in a post?)

Re:trademark not copyright

[mcvos]

In the gaming industry when talking about IP it's a reference to the combined constituent parts of the game

The thing is, the industry doesn't make law. If they call something IP, that doesn't automatically make it legally protected. The only thing that matters is what is legally protected, and that's copyright and trademarks.

You don't copyright constituent parts individually, you copyright the work as a whole.

And that protects that work from direct copying. But it doesn't protect the idea behind that work against reimplementation using different art, different code, and different names.

Because in the end, the only things that are legally protected are the art and the code (through copyright) and the names (as trademarks). Ideas aren't copyrightable. Some people consider them patentable, but it's highly debatable whether they really are and should be.
And I don't think computer game concepts tend to be patented.

Trademarks protect against use of say, "Sonic the Hedgehog" in a 3rd party game created without permission, even if that game is nothing like any of the existing Sonic games. A copyright case would not be sufficient here because not enough IP from an existing Sonic game has been copied.

You still sound a bit confused here. Names aren't copyrightable at all. The entire idea behind trademarks is to protect customers against fakes. A third party can't use "Sonic the Hedgehog" because that name might lead customers to believe it's a real Sonic game from the original makers/owners of Sonic.

In trademark cases (in my country at least), judges tend to look at whether it's confusing to the customer. Whether they are likely to confuse the alleged violating product with the original. If that's not the case, it's not a trademark violation.

Industry lawyers do often try to confuse this issue, claiming copyright and trademark are related and throwing a lot more in there under the name "IP", but that doesn't make it law.

Re:trademark not copyright

[brirus]

Pac-Man isn't a character, he's a yellow dot. Yellow dots with mouths were popularized in the 1960's and orginated much earlier; Wal-Mart can't claim ownership, and neither can Namco.

Pac man is also deeply ingrained in (and is therefore part of) my unconscious mind. Corporate ownership of any part of my unconscious mind is problematic to me. But that's just me.

Re:trademark not copyright

[vux984]

So, a painting of a trademarked object, say a Campbell's Soup can, would be a violation?

A violation of what? Trademark law or copyright law? You can generally depict a trademarked object in an art piece without running afoul of trademark law. As for copyright, sure the artwork of the can itself is copy protected...

Campbells could absolutely have launched a suit based on copyright. But unlike trademark which they have some obligations to defend, copyright enforcement is discretionary.

As it happens, apparently Campbell's sent him some campbell's soup rather than a cease and desist.

Apparently post mortem Campbell's and the foundation responsible for licensing Warhol's work have formal permssion for the use, and Campbell's apparently the foundation and Campbell's now jointly exercises rights over the Warhol image.

Probably not the answer you were expecting?

How about a painting of a photograph of Mao Tse Tung or Marilyn Monroe?

Copyright applies on Marilyn photos. As for Mao, it depends when the photo was taken; early photos will be in the public domain.

And how accurate would the painting of a photograph have to be before it would be considered a derivative work? If I did an abstract painting of the Mona Lisa, would that be a violation? How about if I did an oil painting of a photograph of the Mona Lisa?

a) up to a court to decide. if you are worried it might be judged a derivative work... then it probably is one. :)

b) an abstract of the Mona Lisa would be safe, because the mona lisa image is in the public domain.

c) depends if it can be discerned that it was derived from the photograph. The photo is protected by copyright; but its subject, the mona lisa isn't. If the painting includes elements particular to the photograph, then it is a derivative work of that photograph.

Copyright of visual media is very tricky. If I do an oil painting of a Paul Klee work, and I tried to pass it off as the Paul Klee work, then I'm an art forger.

Art forgery is entirely separate from copyright. forgery is a form of fraud. Its criminal.

But if I take the Mona Lisa, and do a watercolor of it, then it's an interpretation (and transgressive) and clearly would not be a violation.

If you knowingly tried to pass it off as an original da Vinci then it would still be fraud. But you are right that you can't violate copyright.

As for Paul Klee, his early work should be entering the public domain now, I think.

If I do a cubist interpretation of a photograph by Ansel Adams, is it less of a violation than if I did a hyperrealist painting of it? So if a cubist interpretation is at one end of the scale, and a hyperrealist painting of the Ansel Adams landscape is at the other end, how do we decide at what point it's too close?

See point a) above.

Here's my answer: It only becomes a violation if I try to pass the "derivative" work off as the work of the other guy. As long as I say, "This is my watercolor version of an Ansel Adams landscape, and sign my name, then it cannot be considered a violation of copyright.

Er...You seem to conflate forgery with copyright infringement. They are entirely separate.

I realize that this is not the way the intellectual property racket or the RIAA or the MPAA see it, but this is just a theoretical conversation here.

In your theoretical world:
a) you could write a novel. I could translate it to French, add some illustrations and sell it as "my interpretation of your novel", and give you nothing.

b) you could write a play. I could perform it, and pay you nothing. For the performance is my intepretation of your play.

c) Carry that line of though... you could perform a play, and I could show up with a camera and record it, press it to disc and sell it as "my recording of your play", and give you nothing, and of course give nothing to the person who wrote the play.

Current copyright law ensures the original authors and performers retain rights of those derivatives. I think this is generally a good thing.

Re:trademark not copyright

[Anonymous Coward]

DUDE- we just said this isn't a derivative work. It is based on an idea (creatures running around eating things) and similarities to pac man certainly aren't creative. Thousands of people have created similar games pac-man like games with similar levels. They are trivial to make. Unlike modern games which are complex and much more creative. However the creativity even in a modern game is questionable. Legally though I don't think much is required.

Re:trademark not copyright

[taxevader]

"If they have only copied the ideas, but used original artwork etc., then that is an entirely different situation. For example, storylines are not inherently subject to copyright, which is lucky for every "boy meets girl, boy loses girl, boy gets girl" romance author."

Hey pal, this is Slashdot. It goes more like "boy downloads girl, boy faps off to girl, boy deletes girl" round these parts.

Re:trademark not copyright

[Xest]

"The thing is, the industry doesn't make law. If they call something IP, that doesn't automatically make it legally protected. The only thing that matters is what is legally protected, and that's copyright and trademarks."

That's just a pointless argument of semantics really, it's simply a commonly used term to refer to a companies assets and that's merely the context I was using it in.

"And that protects that work from direct copying. But it doesn't protect the idea behind that work against reimplementation using different art, different code, and different names."

It covers more than direct copying, it covers copying of an arbitrary set of the constituent parts, this is where the problem is though, it's really quite arbitrary which is where the courts decide, but the point is this, if something is 90% copied as in this particular case, you can safely say it's copyright infringement, it's when you get to lower levels of similarity that it becomes hard to guage.

"You still sound a bit confused here. Names aren't copyrightable at all. The entire idea behind trademarks is to protect customers against fakes. A third party can't use "Sonic the Hedgehog" because that name might lead customers to believe it's a real Sonic game from the original makers/owners of Sonic."

I don't think you get the point still. I gave the example that using "Sonic the Hedgehog" by itself wouldn't fall under copyright, but would fall under trademark law, however if you create a game with a hedgehog in and call it "blue hedgehog" or similar then even use of a common word coupled with other components baring similarity to an overall copied work does constitute copyright infringement.

You're still making the false argument many others here have, and that's separating out constituent parts of the copyrighted work, such as the name and saying "Hey, but this part by itself doesn't fall under copyright law" and you're right, but that's not the context here, we're not talking about someone taking Pacman and putting him in a game genre he's never been in before such as a first person shooter or RTS game or whatever, if we were then because no copyrighted work had been imitated but a trademarked character had still been used then a trademark case would be valid. Instead we're talking about his use in a fall blown copy of the original Pacman game and once again, that's why it falls under copyright- again, with copyright, it's the whole work that matters and how representative of that original work this new work is, and Pacman is part of that work. In this case Namco could always ignore the copyright infringement and focus directly on the Pacman character with a trademark case, but why when it's much more a case of full blown copyright infringement? Copyright is the correct thing to use when an entire work has been copied, or closely mimiced, trademark is the correct tool to use when a trademarked entity (i.e. a character) has been used in a context which the company did not want it to be used, but which otherwise bears no other resemblance to copyrighted works in which that entity may previously have been used.

Re:trademark not copyright

[AmiMoJo]

Most Japanese companies allow fan made works based on their IP to be produced inside Japan. Most popular games, TV shows, movies, music and so on have fan made material available. Artwork, cover versions etc. Part of it is down to the fact that if a company did try to agressively enforce its copyright it would generate a lot of bad press and ill feelings toward them. They see fan material as boosting the value of their IP. It is after all grass-roots support and free advertising.

To give a somewhat similar example there is a clone of the first Mario game that uses all the graphics and sound from the original. The only difference is that it is insainly hard - everything kills you (even the background clouds) and there are hidden death traps everywhere. I think it was called Cat Mario or something like that, can't google it from work. Nintendo don't seem to care though. There are many fan made games using characters from popular media in Japan.

For some reason this does not happen in the west. Even the western arms of Japanese companies are quite happy to sue their fans.

Re:trademark not copyright

[PopeRatzo]

In your theoretical world:
a) you could write a novel. I could translate it to French, add some illustrations and sell it as "my interpretation of your novel", and give you nothing.

That's right. And musicians could take my song, chop it into pieces, re-arrange the pieces and release it themselves. In my theoretical world.

Here's the thing: I believe copyright and trademark are becoming confused and will become harder to enforce. In a global economy, if you have the biggest market completely ignoring it, how well can you enforce it in the rest of the world? You make it sound like everything is settled and everybody's in agreement and it's all eternal. I think it's all a lot mushier than you make it out, and I believe it's a good thing. I believe, as someone who makes his living and supports a family on "intellectual property" that much too much value is being put on ideas. If you believe in a "free market" (I do not) then maybe the extensive flouting of the copyright laws is actually the "free market" saying that yes, ideas have too high a valuation in the marketplace and are due for an adjustment, in the form of widespread infringement.

Re:trademark not copyright

[PopeRatzo]

but you're way off base from the current legal system

Not the first time.

Re:trademark not copyright

[julesh]

On which ground ? Plagiarism is not copyright infringement. I had this interesting read from Stross on fanfiction

As much as I respect Charlie and suspect he's probably right about this, there's a big difference between your average fanfic and a direct, absolute rip-off of the original source material, which is what we're talking about here.

Fanfic usually takes characters, places and concepts from one story and creates new stories based on them. Note that 'character', 'place' and 'concept' are all abstract ideas, and the notion that they are protected by copyright is dubious at best. A character in a work of written fiction is defined by a few factors: a name (which is generally held to not be subject to copyright due primarily to it being too short to be an entirely original expression), a general 'personality type' (which is typically too vague and/or derivitive of either reality or other fiction to warrant copyright protection), and a list of events that are supposed to have happened to this character in their past (the knowledge of which will influence how the character acts in future). By 'filing off the serial numbers', Charlie means (1) changing the name, and (2) changing any past events that are unique enough to firmly identify the character. By doing so, you remove any aspects of the character that could be subject to copyright protection.

OTOH, to get back to the topic at hand rather than analogies, this game includes, among other things, a maze layout which is very similar if not actually identical to an original one, and visual designs that are very similar to the originals. This is very different to the kind of abstract stuff that's involved in fanfic; we're talking concrete visual and logical designs adopted with relatively few changes.

Re:trademark not copyright

[mwvdlee]

The Campbell's Soup can and similar works are about context and intent. The authentic soup can's visual design was meant to sell a food product, Warhol's painting of it was meant as an artistic social criticism. Fair use applies here.

If your intent of the Ansel Adams watercolor copy was to sell it as such (regardless of how you label it), you can't really claim fair use. If you made your copy in order to express an original thought or solely for your own benefit of improving your art skills, fair use should apply.

Re:trademark not copyright

[aeoo]

You're making shit up. Copyright is very simple. Copyright doesn't protect ideas. (Patents don't protect ideas either btw, no law does.) It doesn't even protect likeness! Copyright only protects the exact image, the exact sound, and the exact text. That's it. You are allowed to cite text without breaking copyright. You're allowed to mix sound and art also without breaking copyright. You're basically not allowed to cut-n-paste things verbatim. That's it.

So if you draw something that is reminiscent of pac-man but isn't a direct cut-n-paste of the original graphic, it's not a copyright violation. It's that simple.

There is no such thing as "IP." IP is a bogus concept that doesn't exist in law. It's more like a dream of some greedy people rather than reality. The dream is that virtual things and ideas could be privatized. It won't happen.

Re:trademark not copyright

[aeoo]

If you sit down and sketch a mouse that is "inspired by" Mickey Mouse, it doesn't have to be a perfect copy for it to be infringing.

Wrong. It has to be a perfect copy. Obviously if you add a pimple to the exact copy, it will be infringing. There is some standard to how much novelty is required to make a non-infringing work, but you can certainly make a non-infringing inspired-by mouse.

Re:trademark not copyright

[Xest]

"Copyright only protects the exact image, the exact sound, and the exact text. That's it."

Okay genius, so why is encoding an audio CD track to MP3 format, which changes the sound slightly a copyright issue? Why is changing a few words in an eBook so that it's no longer the same and uploading it to The Pirate Bay a copyright issue?

You are wrong. You're confusing fair use provisions, which allow exemptions from copyright with limits, such as for academic research, and providing you do not copy the entire text.

"There is no such thing as "IP." IP is a bogus concept that doesn't exist in law. It's more like a dream of some greedy people rather than reality. The dream is that virtual things and ideas could be privatized. It won't happen."

What rock have you been living under? Do you think the US economy is still manufacturing based, or do you think it's an agrarian society or something? The majority of the US (and many other Western economies) are based around the concept of IP. If you think it doesn't exist in law you need to take a peek out from under your rock.

If you're going to accuse someone of making shit up, then at least have a clue what you're on about. Something you clearly do not.

Re:trademark not copyright

[Anonymous Coward]

PAC-MAN was in fact originally named PUCK-MAN. Turns out they had a problem with vandals scratching out the bend in the 'P'.

Re:trademark not copyright

[operagost]

Mickey Mouse is a trademark, not copyrightable. Stories are copyrightable. So are works of art, so a specific image of Mickey Mouse could be copyrighted, but not your description which clearly describes a trademark (but for superfluous mentions of his pals).

Re:trademark not copyright

[ben0207]

That's bullshit and you know it is. You can't just choose to ignore major parts of copyright and trademark law just because you're able to remember things.

Re:trademark not copyright

[Theaetetus]

Mickey Mouse is a trademark, not copyrightable. Stories are copyrightable. So are works of art, so a specific image of Mickey Mouse could be copyrighted, but not your description which clearly describes a trademark (but for superfluous mentions of his pals).

Nope, you'd be wrong there. Characters can be copyrighted, provided they're sufficiently developed. As Judge Hand said, "It follows that the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for making them too indistinct."

Back in the day, Neil Gaiman sued for copyright infringement by McFarlane of his Spawn character... From that decision:

McFarlane argues that even as dolled up by the penciler, the inker, and the colorist, Cogliostro is too commonplace to be copyrightable. Gaiman could not copyright a character described merely as an unexpectedly knowledgeable old wino, that is true; but that is not his claim. He claims to be the joint owner of the copyright on a character that has a specific name and a specific appearance. Cogliostro’s age, obviously phony title (“Count”), what he knows and says,his name, and his faintly Mosaic facial features combine to create a distinctive character. No more is required for a character copyright. DC Comics Inc. v. Reel Fantasy, Inc., 696 F.2d 24, 25, 28 (2d Cir. 1982) (Batman, though assumed rather than actually determined to be copyrightable); Walt Disney Productions v. Air Pirates, 581 F.2d 751, 753-55 (9th Cir. 1978) (Mickey Mouse et al.); Detective Comics v. Bruns Publications, 111 F.2d 432, 433-34 (2d Cir. 1940) (Superman); Fleischer Studios, Inc. v. Ralph A. Freundlich, Inc., supra, 73 F.2d at 278 (Betty Boop).

(emphasis added). Note the string cite, too - the fictional characters of Batman, Mickey Mouse, Superman, and Betty Boop are all protected by copyright. Not just their graphic depictions, but their description.

Re:trademark not copyright

[Anonymous Coward]

None of these problems need to be had in the first place if folk would just cease to be so lazy and plagiaristic in principle, and spend five minutes thinking about what they're doing, and turning their ghosts into spirals, their pacmen into snappers and make their own mazes. Jeez it really doesn't take much, does it!

Re:trademark not copyright

[Anonymous Coward]

Well in fact Larry Potter and his trip to Gogworts is pastiche and it's fine. c.f. Cherry Bobbins, and almost every other fictional guest character ever in the Simpsons.

Re:trademark not copyright

[commodore64_love]

Maybe this Questioner should do what Mattel (16-bit Intellivision) did and release "K.C. Munchkin"

- Atari tried to sue Mattel for infringing their Pac-Man Console license. As far as I know, Mattel got away with it since the game was different enough to be considered a separate creation, even though it played close to the arcade. http://www.google.com/images?hl=en&client=seamonkey-a&q=k.c.+munchkin

Re:trademark not copyright

[AdamWill]

I haven't played the game, but nothing in the cited text indicates he did copy the character design. The main character isn't described at all. The adversaries are described as 'ghosts'; Namco of course does not have copyright on every possible way you can draw a ghost. The power pills, ditto: they're just described as 'power pills'. There's no indication they use the same design as Namco's power pills.

Re:trademark not copyright

[Chowderbags]

How about Battleship?

Yes, that's right, they're spending $200,000,000 on a movie about the game Battleship. And to think that they could spend that money on food for starving children.

Re:trademark not copyright

[Schnapple]

Actually they never had that problem, they just anticipated that they'd have the problem in America, so they changed the name for the American release. It was still Puckman in Japan

Re:trademark not copyright

[PopeRatzo]

The Campbell's Soup can and similar works are about context and intent.

I agree of course. But "context and intent" seem to be very hard concepts to pin down. I'm not sure how the law measures "context and intent", or if they should try.

Re:trademark not copyright

[TheStatsMan]

[quote]There are almost an infinite number of ways to structure a maze[/quote]

Not really. Consider you're limited by corridor width and overlap rules of some kind. Also, certain maps do not make for a playable game experience (routes of escape and choke points are things to consider). In addition, maps in games like this tend to exhibit some sort of symmetry which further limits the number of maps.

On topic, do developers really have a copyright (or some other claim of ownership) to maze layouts? That seems far-fetched.

Re:trademark not copyright

[mattack2]

You're wrong.

http://www.patentarcade.com/2005/04/case-atari-v-north-american-phillips.html

Re:trademark not copyright

[Xest]

Do you have images disabled or something? The linked article quite clearly shows screenshots of the game which are nigh on identical to classic copyrighted Pacman.

Re:trademark not copyright

[bennomatic]

I thought that album was basically a bunch of U2 recordings with urban sounds mixed over them, and that's why they were sued...

Re:trademark not copyright

[ehrichweiss]

No, the core of the problem was the album cover. The other stuff was merely incidental.

Re:trademark not copyright

[Requia]

It's not allowed, but it's not a copyright violation either (unless you also copy the mannerisms or story of the character), it's a trademark violation. There are entirely different rules for the two, among other things you can't use a takedown notice for a trademark violation.

Re:trademark not copyright

[jbolden]

I'd question whether this is different art in a copyright sense. I think its close enough to constitute a derived work. And of course there is the trademark violation everyone is addressing.

Not copyright, trademark

[SuperKendall]

The use of the DMCA in this case appears incorrect since he's not using any copyrighted materials.

What is happening is blatant trademark infringement; he should have been sued instead.

So he sort of has a valid complaint but as you say he doesn't really have moral cause to be complaining.

Re:Not copyright, trademark

[Surt]

He is absolutely clearly using copyrighted materials. If you can look at his game and not see that, you either have a misunderstanding of what 'copyright materials' are, or you are blind.

Re:Not copyright, trademark

[sjames]

It looks like he could argue the exact methods, but the end result of Bandai doing it the "right way" would be that the game is still withdrawn and everyone gets to pay lawyer bills for a while.

Probably time for him to quit while he's ahead.

Re:Not copyright, trademark

[Anonymous Coward]

The use of the DMCA in this case appears incorrect since he's not using any copyrighted materials.

/facepalm

Look at the screenshot. IT'S THE SAME. GOD. DAMN. MOTHER. FUCKING. MAP.

Re:Not copyright, trademark

[gnasher719]

The use of the DMCA in this case appears incorrect since he's not using any copyrighted materials.

I think a DMCA notice is correct if you are the copyright holder or have the right to act for the copyright holder (for details ask a lawyer), and you believe that someone is infringing on your copyright. If the person accused disagrees, they can very easily file a counter notice. That, of course, means that the gloves are off and we now have a real fight.

So as long as these guys wrote to Google "we own the copyright on Pacman, and this game infringes on our copyright", the DMCA notice in itself would be correct. If they didn't put all the required details into the DMCA notice then Google can and should ignore it (like forgetting to give a contact number). If they claimed a trademark violation then I think Google could and should ignore that because it isn't covered by DMCA, but I might be wrong. If they lied about owning the copyright, that would be criminal. But if they are just wrong about there being an infringement, that doesn't make the notice incorrect, it just means they would lose if it went to court. The DMCA basically says "Google, we want a fight, get out of the way". A counterclaim says "Google, there will be a fight, but it has nothing to do with you".

Re:Not copyright, trademark

[Anonymous Coward]

The use of the DMCA in this case appears incorrect since he's not using any copyrighted materials.

What is happening is blatant trademark infringement; he should have been sued instead.

Wrong. Visit http://www.pacmancedx.com/ and scroll down.

PAC-MAN© Championship Edition DX© 2010 NAMCO BANDAI Games Inc.

Just because you didn't use the name "Pac Man"

[Anonymous Coward]

Doesn't mean you're not infringing the trademark.

Notice, you used "Pac".

But...but corpra$hun'$ are teh €eevu£!

[Hognoxious]

I must be in that episode of "Sliders" where they were in a world where a red traffic light was go and green meant stop.

Because on the slashdot in *my* universe, information wants to be free and anyone complaining about copyright/patent/trademark infringement is a exploiting an illegal artificial monopoly.

Re:As usual... [WRONG]

[Securityemo]

Could you elaborate?

Re:Hiring an attorney may be cheaper than you thin

[KDR_11k]

This isn't worth it, the game is too much of a direct rip-off. Considering the high probability that his game is beyond help (look at the screenshot, show that to anybody and they'll say "that's pac-man!") and how little effort it likely took it's more economical to just walk away, call it a write-off and make something original next time.

The ghosts only look "generic"

[Anonymous Coward]

Because you are thinking of the original pac-man ghosts

I mean, seriously. Ghosts don't actually look like that. Pretty blatant case of ripping off the artwork.

further information

[androidstevep]

I guess it was a bad choice of name. I would happy to rename the app, but because my access to the app is now disabled, I can't do this.
Of course I could get access by filing a counter notice, but was too scared to do this :-P

To answer of the "rip off" accusations: My understanding of copyright is that it's perfectly acceptable to create something that is inspired by something else as long as the original source material is not used. I would add that there are plenty other pacman clones out there with a variety of names, so I don't believe the mere act of making a similar game is a breach. It is different from the original in that
- graphics are different (but in some cases similar)
- sound is different
- ghost movement is different
- number of dots in maze is different

Re:further information

[simon0411]

Your understanding of copyright law is imperfect. The copying need not be exact. Method of copying need not be mechanical. You've copied the creative expression of the Pac Man characters and the map designs. You've reproduced the entire atmosphere of Pac Man. Copying the gameplay, however, is perfectly fine. Why not retool the game with a little more of your personal creativity? Surely that's more attractive than constantly trying to find how closely you can skirt the law.

Re:further information

[km_2_go]

So, you're a human photocopier that changed the number of dots in the maze, yet you call yourself an Indy Game Developer?!

Re:further information

[mikestew]

Hey, you don't have to convince us. Ultimately you have to convince a jury. And Namco pulls a screenshot from your own site and asks, "what you do you think, ladies and gentlemen? PacMan, or a derivative work?"

Look, your game isn't "inspired", it's a clone a.k.a. "rip-off". You set out to do PacMan for Android, and from the looks of it did a damned fine job. But pointing out the subtle differences is silly. Be honest, were each of your points of difference deliberate design decisions, or just parts you couldn't get quite right before releasing it?

Re:further information

[Surt]

Your understanding of copyright is incorrect. You should consider reading the faqs if not the actual laws provided by the copyright office.

You can get started here:
http://www.copyright.gov/

Re:further information

[km_2_go]

"number of dots in maze is different" Well, in THAT case, I say screw Namco! You obviously were "inspired" by the game, but otherwise, like many artists, are being screwed by the system!

Re:further information

[hitnrunrambler]

Yes this IS a self-referencing double post, but when I saw a comment by you directly in the thread (after I posted) I figured I might as well address you directly.

Don't respond by trying to defend your existing work, respond by improving your work.

In fact this whole event could be a great source of inspiration. Imagine a large yellow © navigating through mazes.

Super IPa©

"Instructions: Inspired by arcade classics and based on corporate greed! You control IPa© (Intellectual Property & Copyright).
The aim is to eat all the $ in the maze, while avoiding four Independent Programmers. There are [DMCA] power-pills available in each corner which temporarily turn the Independent Programmers into Frightened Infringers. Chase them down and devour them! Constitutions also appear and can be eaten for additional points.
Thank you to Bamco Nandai for the back story and to Rambler for the satire."

ps. if anyone actually wants to take this idea I hereby give full concept ownership to the public domain, and all who fly the pirate flag.

| ©X
|
|

Re:further information

[Anonymous Coward]

Man, that game would be so much better than Pacman. I never understand why people can't put the bare minimum amount of effort into creative expression. I blame our schools, for crushing every child's spirit since before they can remember.

Re:further information

[Blakey Rat]

The most disgusting part of all of this is that you went through the effort of creating a new game, including (according to your post) re-creating all the graphics and sounds, and yet you didn't inject a single original idea . Even if you're not in the wrong legally (although I believe you are), you're a completely hack.

If I were you, I'd be ashamed of myself. All you've done is demonstrated to the world how bankrupt your creative vision is.

Re:further information

[fireylord]

IANAL, however

I guess it was a bad choice of name. I would happy to rename the app, but because my access to the app is now disabled, I can't do this.

Of course I could get access by filing a counter notice, but was too scared to do this :-P

The name is not the cause of their DMCA notice, as the name would be a trademark issue.

To answer of the "rip off" accusations: My understanding of copyright is that it's perfectly acceptable to create something that is inspired by something else as long as the original source material is not used. I would add that there are plenty other pacman clones out there with a variety of names, so I don't believe the mere act of making a similar game is a breach. It is different from the original in that

- graphics are different (but in some cases similar)

- sound is different

- ghost movement is different

- number of dots in maze is different

The issue isnt that individual parts are or aren't using their original art, but that, taken as a whole, the entire work is a wilful copy of their game.
The minor insignificant differences are not going to be anough to disclaim the infringement.

By far the easiest way to avoid the issue.

[3278]

You can certainly, as slashdotters assuredly will, endlessly debate copyright law and trademarks and the DMCA and how close to using someone else's ideas you can get before triggering legal action, but I maintain that the simplest method of completely avoiding the issue is to make a game that isn't anything like what someone else has already done. Instead of trying to just barely skirt the law, make your mark as an originalist, as a creator. It's /much/ more difficult to do - you might even respect copyrights and trademarks a little more afterward, although you also may not - but it's still much easier than lawyers' fees and court dates and trying to squeak your imitations past the DMCA. You'll also almost certainly find that it's much more deeply satisfying to create something entirely new, entirely your own, than to clone someone else's work.

Making a Pac-Man clone should be a requirement for anyone learning about game coding, there's no doubt, but you don't /distribute/ it. If Namco Bandai wants to put Pac-Man on the Android Market, that's their decision: you should come up with your own thing, and put /that/ on the Android Market. Besides, does the world /really/ need another Pac-Man clone?

Copyright Law. Read it.

[EightBits]

I am not a lawyer and as such, do not have the training and experience required to be able to help you. However, I am an American citizen and that makes me responsible for making sure I myself do not break U.S. laws. In our legal system, ignorance of the law is no excuse. While being ignorant of the law can, in some cases, change the punishment you receive, it will not excuse you from breaking the law entirely.

This is why it is so important for us to read at least the aspects of the law that are relevant to what we do. Given the nature of the Internet and computers in general, copyright law is very important to all of us. Despite this, somehow almost no one reads it yet everyone tries to wax intelligent about it.

Many laws are very very cryptic. Luckily, copyright law is not one of them. Go here to obtain a copy of the current U.S. Copyright Law:

http://www.copyright.gov/title17/

Be sure to check back regularly for updates. When reading this document, it is important that you read and understand Chapter 1, Section 101, "Definitions" before reading anything else. If you do not read this and understand it, you *WILL* misunderstand the rest of the document. Once you understand this section, the rest of the document becomes far easier to understand.

Doing this will not prepare you to battle IP lawyers in court, but it will give you a better understanding of copyright in the U.S. and help you avoid copyright issues in the first place. As always, even if you read this law, go hire a real lawyer if you know you are on shaky ground. Attempting to clone someone else' product should immediately make you realize you are on shaky ground, even if you have not read Title 17 of the U.S. Code.

Hint: You don't have to read the entire document. There are sections that do not directly pertain to most modern computing situations. However, it should become very clear very quickly which sections are important to you.

Doing this now will help you to see the infringements you have made in your game. Just one look at the screenshot of your game reveals too many copyright violations to ignore, let alone the text on your web page.

It's almost certainly not a copyright violation...

[Anonymous Coward]

It's almost certainly not a copyright violation, but it's also almost certainly a trademark violation. Good luck with that.

Indy Game Developer?!

[Anonymous Coward]

Okay, the "game" part is covered, but "Indy" and "Developer" have about as much relevance to your work as photocopier's.

Wow front page of /.

[techhead79]

I can't believe I'm reading this on the front page of /.!

A simple consult from an IP lawyer will cost you about $400ish per hour....but it's not going to take them that long to tell you what's obvious. As others have noted this is in violation of copyright law for being a derivative work. Functionality can not be copyrighted...but we're not talking about that we're talking about a game that acts and looks EXACTLY like another game that was written a long time ago. Images and look and feel can be copyrighted. If I have a website and put copyright on the bottom and then you put up another website with the exact same images you just created yourself...it is in violation of copyright law. The same is for games.

If you want to go into business for yourself and strike it rich on some code you wrote you need to take at least an intro course to IP law. This can be found at just about any 2 year college and up for paralegals. It honestly should be included in most CS courses along with ethics relating to software development.

Let's reverse the roles here. Say you made your pacman and then some larger company came along redid all your work in a fraction of the time it took you...made their app look and feel exactly like yours and then out marketed you. What is your fall back? How would you defend yourself? Using your logic it's all fair game so to speak.

I would do what someone else above suggested. Get rid of all the images you're currently using. Redo the mazes. Call it zombie eating lawyers as some one suggested...and even then you might be at risk if you still got dots all over the maze. If you coded it right though this should be doable. Maybe make the score based on how long you can stay alive or how much of the maze you can cover instead of how many pez bits you eat.

Seriously this seems obvious...and it's a shame that a developer wasted his time recreating something and thinking he could sell it. Take an IP class...redo all the graphics to something unique...change up the rules a bit and the mazes and cross your fingers no one notices you're a pacman derivative work under the hood.

Hypocrite

[Tharsman]

You, honestly, are a huge hypocrite.

From your own comments, in your own game, in the link you provided:

Game running slowly on your phone:
- Try shutting down any other CPU-intensive apps.
- Try switching off optional graphics e.g. arrows.
Pacman too slow:
Pacman now moves faster (from V1.05). In later levels, some of the ghosts may move faster then Pacman .

I dont wish a lawsuit on you, but should you get yourself in one, it will be well deserved. Your best bet is to just back off and hope they don't take any further legal action against you. The court costs alone will kill you, your own comments already labeled you guilty.

Re:Hypocrite

[Anonymous Coward]

He didn't say it's not based on Pacman.

Re:Hypocrite

[Tharsman]

He said it was not Pacman, but he calls it Pacman in his own patch-notes!!!

Re:Hypocrite

[Anonymous Coward]

> He said it was not Pacman,
Where?

> but he calls it Pacman in his own patch-notes
So?

It's consistent to think copying graphics or music is wrong, but copying a character is ok. What he said was that it wasn't clear exactly what the DMCA notice was for. That's why he's asking.

I'll Tell You How to Avoid DMCA Woes

[mikestew]

Want to avoid DMCA woes? Don't make a pixel-for-pixel copy of someone else's game.

You learned a valuable lesson: companies defend trademarks. Granted, DMCA takedown notice probably isn't the correct avenue, but they would have hit you with something regardless. As would you, if the roles were reversed.

Re:I'll Tell You How to Avoid DMCA Woes

[fishexe]

Want to avoid DMCA woes? Don't make a pixel-for-pixel copy of someone else's game.

It wasn't literally "pixel-for-pixel" and that's part of the problem. People think you have to literally make a digital or photographic copy for it to be copyright infringement. This is not true. It has always been copyright infringement to recreate an image by painting, drawing, or digitally imitating it if it ends up resembling the original enough that a reasonable person would take it to be a copy, except in limited circumstances (such as parody, social commentary etc. which this game is clearly not). So not only don't make a pixel-for-pixel copy, don't draw from scratch something that ends up looking like a copy either.

Or you could do what this guy did and do make a pixel-for-pixel copy that adds enough awesomeness that even though it would be an open-and-shut case the original copyright holders don't even want to take action for fear of squelching the awesomeness.

Court

[Andy Smith]

Trademark and copyright disputes between two rights holders should be resolved in a court room, not in a letter from one rights holder to a third party.

I say "rights holder" because the owner of Pac Man holds the rights to that game, and the owner of Super Pac holds the right to that game. The issue here is that the Pac Man rights holder claims that the Super Pac rights holder cannot lawfully distribute his product, and Google (private company, not a judge) has no business deciding on the validity of that claim.

I understand that Google has acted to protect itself from being sued for hosting material that violates someone's rights. But to pull Super Pac without discussion or reasonable recourse is simply too close to Apple behaviour for me to be comfortable with.

Re:Court

[Tharsman]

Google's market is, well, a market. It's not a repository. What this means? Google is selling the products you provide. If they don't cooperate, they are just as likely to be held liable. This is not like hosting videos or blogs that some one else uploaded to your open hosting site. This is direct profiting from potentially copyright infringement. You can't expect Google to sit back and wait for a lawsuit to pull the app out. Instead they freeze the app until you can prove it's not infringing.

Re:Court

[nedlohs]

The guy can just file a counter notice and google has to put it back (and of the guy will then be sued into oblivion since it's a blatant copy and he refers to the main character as "pacman" for the Namco lawyers to slam dunk with).

Google's just doing what they are supposed to do. If you don't like that than find some Congress critters you can afford to bribe and have the law changed.

Re:Court

[simon0411]

Following the DMCA absolves Google of responsibility in case Namco does decide to pursue further legal options, and Google has no obligation to do do business with any entity it feels may harm it. That is a private decision which needs not take place in a court room; the whole point is for the middle party to avoid the court room. I'm sure if Namco does decide to pursue this in court, there would be many who would call them out for disproportionate use of force. That'd be correct, and I think Namco itself agrees too. The ball is now in the indy developer's court, and after purusing his website and looking at screenshots, it's probably best to just pick the ball up and go home, imho.

Re:Court

[Andy Smith]

"it's probably best to just pick the ball up and go home, imho"

While hundreds of other Pac Man clones continue to chomp their little pills, untroubled by DMCA claims.

Re:Court

[simon0411]

Somehow he attracted Namco's attention while those others did not, on a third party web store owned by a major company. Touch luck.

Re:Court

[Anonymous Coward]

Then you take issue with U.S. copyright law, and not the actions of Google. But don't let that stop you from passing moral judgement. Read --

512. Limitations on liability relating to material online11

...
(c) Information Residing on Systems or Networks at Direction of Users.--

(1) In general. -- A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider -

(A) (i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;

(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or

(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;

(B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and

(C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.

[cont'd]

(2) Designated agent. -- The limitations on liability established in this subsection apply to a service provider only if the service provider has designated an agent to receive notifications of claimed infringement described in paragraph (3), by making available through its service, including on its website in a location accessible to the public, and by providing to the Copyright Office, substantially the following information:

(A) the name, address, phone number, and electronic mail address of the agent.

(B) other contact information which the Register of Copyrights may deem appropriate.

...

(3) Elements of notification. --

(A) To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following:

(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.

(iii) Ident

Re:Court

[Eskarel]

You have reasonable discourse, he can send a letter in writing to Google guaranteeing that super pac does not violate copyright. Google can and probably will reinstate said product and will furnish his letter to the copyright holder. Said copyright holder must then take up any further issues with him, and Google is indemnified from liability. Of course this would be a bad idea because the immediate result would be that he would be sued. This is a lawsuit which he would lose, primarily because he cannot afford a lawyer, but also because he's almost certainly actually guilty.

You are a fucking moron

[Anonymous Coward]

Do not talk about the law

Re:You are a fucking moron

[Anonymous Coward]

Law != Fight Club

Sure do: Showing you're a cowardly troll stalker

[Anonymous Coward]

http://tech.slashdot.org/comments.pl?sid=1891254&cid=34413838 TheEndOfDays likes stalking and trolling others (as well as starting it up as shown right there)? I like how he was put into his rightful place here in the end http://tech.slashdot.org/comments.pl?sid=1891254&cid=34418274 where TheEndOfDays ran like the trolling little coward he really is, unable to back up his trolling and stalking crap.

Re:But...but corpra$hun'$ are teh €eevu£

[Surt]

What you've run into is that Slashdot is even more vigorously anti-stupidity than they are anti-copyright.

I agree...

[SuperKendall]

On further reflection, I retract my statement, theres trademark violations for sure but it's close enough it has copyright problems too.

Re:Hiring an attorney may be cheaper than you thin

[ColdWetDog]

That's not the point. He should talk to an attorney because, among other things, there is nothing to stop Bambi or whoever from prosecuting this further. He can still be in further trouble, even if the game has been pulled.

Really guys, lawyers don't bite (most of them anyway(. As Grond points out, a brief conversation with one won't set you back much, if at all. He needs very basic advice, not a trip to the Supreme Court.

You then have the advantage of knowing what you should and should not do instead of having to wander through some hundred odd mutually incompatible posts. Put your big boy underwear on and go out into the real world. It's good practice.

DMCA would *SEEM* invalid but...

[Khyber]

I haven't read the full complaint against you. Are all required six elements clearly defined in the DMCA takedown notice against you (for example, they MUST make specific mention of what is being infringed, how it is being infringed, and the location of the infringement must be stated?) If not, then the DMCA notice is improper and Google followed through without proper cause as required by the DMCA.

Re:DMCA would *SEEM* invalid but...

[Rockoon]

Google is within their rights to take "invalid" DMCA notices and act on them, and they are also within their rights to not re-instate your contents availability even when you send a "valid" counter-notice.

Google is not ever forced to make your content available.

Still a copy even if it's rewritten.

[Quick Reply]

Just because you didn't reverse engineer the code or rewrite it based off screenshots, doesn't mean that it's not a copy. If you make it look/do the same, even without original code, it's still a copy

IANAL

[bgspence]

But, I've been a juror. And, I don't care what the lawyers and judge will say. You are guilty on 21 of 23 counts. No need to list which ones.

Re:Hiring an attorney may be cheaper than you thin

[Anonymous Coward]

I can prosecute you for that advice. you are just scaremongering. fear leads to the dark side.

Just look at the screen shot...

[WPIDalamar]

Put this image in front of an average citizen.
http://spwebgames.com/pacman/screenshot2.png

Ask him what it is.

He'll say "Pac Man"

That's the guy that's in the jury of the trial figuring out if it's copyright infringement or not.

Re:Just look at the screen shot...

[kaoshin]

"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." - US Copyright office

I agree with the parent. There are obvious artistic similarities that would make this subject to copyright.

Re:Just look at the screen shot...

[noidentity]

But it has those annoying arrows blocking things, so it's clearly not Pac Man. Acquitted!

Imitate, but don't copy.

[Anonymous Coward]

You copied it. You should have just imitated it.

Re:Imitate, but don't copy.

[cheekyjohnson]

From the looks of it, that's exactly what he did. Imitated but not copied. All of the work is his, even though it is similar.

Re:Imitate, but don't copy.

[Tharsman]

Did you look at the game's page? It's all copied, not just "imitated". Identical maze, identical characters, I didnt bother counting the dots but would not be shocked if they are the same count. To tip things off, he himself calls it Pac Man in his patch notes and updates.

He did not even bother to change the colors of the player character or the ghosts, they are exactly the same colors as the 4 ghosts in every single incarnation of the game.

Re:Imitate, but don't copy.

[cheekyjohnson]

Did you look at the game's page?

Yes.

It's all copied, not just "imitated".

Well, when I made that comment I was thinking of copy as in actually directly copying another games' resources.

I can definitely see where the problems arise, though (even though I disagree with them). It's heavily uninspired and pretty pointless.

Re:Imitate, but don't copy.

[Anonymous Coward]

> You copied it. You should have just imitated it.

Better yet, he should have made a generic engine that allowed skinning the characters and mazes. Then he could have offered a "Pac Skin" that looked just like the original Pac-Man, but could be easily disabled if legal troubles arose.

Re:TheEndOfDays is an online troll and stalker?

[The End Of Days]

I do like it! I really do! When I get reactions like this, it's all worthwhile.

Now you can link to this post as proof as you continue to stalk me. I look forward to spoonfeeding you even more in the future.

Snood

[Anonymous Coward]

Sure, but Snood is Puzzle Bobble, and they got away with it.

Pile-on

[Anonymous Coward]

Why would a good attorney even help him? He doesn't have income, he doesn't have an idea, and a search of the web would lead to Slashdot comments with lots of people (i.e. an informed set of potential experts) saying that he's infringing. The plaintiff's attorney would be very happy with this situation.

It's much cheaper and more rewarding to have your own idea than to copy others' and deal with their legal claims. Unless you're Zynga, in which case the rules don't apply.

Your profiting off somebody elses' work

[Evets]

This isn't "small independent development". This is leveraging somebody else's hard work for your own profit. Hopefully you are in bigger trouble than a DMCA notice.

Be prepared to give back all of the money you earned and to throw in some additional funds as well. And go find a new line of work. You're giving the rest of us a bad name.

Maybe the pac-man icon is protected by TM

[roguegramma]

I did a trademark search for PAC-MAN at http://tess2.uspto.gov/bin/gate.exe and I'm unable to find a non-word mark match. Does that mean I'm incompetent in searching or does the "namco bandai"-company really only have word marks?

Re:Maybe the pac-man icon is protected by TM

[Anonymous Coward]

Sorry, but TM doesn't get DMCA protections. If it's trademark that they're having a problem with, then they're in trouble as it's a mis-use of takedown- an actionable one.

Re:Maybe the pac-man icon is protected by TM

[Pharmboy]

Does that mean I'm incompetent in searching or does the "namco bandai"-company really only have word marks?

It means you are assuming they trademarked the image of Pac-man, which they obviously didn't. They DID, however, trademark an image of the words "PAC-MAN" in several instances, which is technically a non-word match, but it is an image of the words. Of course, that doesn't matter since DMCA covers copyright, not trademarks, and the image of Pac-man is automatically copyrighted upon initial creation.

Oh, and don't bother ever linking to tess, those are per session, and the links never work.

http://www.chillingeffects.org/dmca512/faq.cgi

[Anonymous Coward]

http://www.chillingeffects.org/dmca512/faq.cgi

Question: What are the counter-notice and put-back procedures?

Answer: In order to ensure that copyright owners do not wrongly insist on the removal of materials that actually do not infringe their copyrights, the safe harbor provisions require service providers to notify the subscribers if their materials have been removed and to provide them with an opportunity to send a written notice to the service provider stating that the material has been wrongly removed. [512(g)] If a subscriber provides a proper "counter-notice" claiming that the material does not infringe copyrights, the service provider must then promptly notify the claiming party of the individual's objection. [512(g)(2)] If the copyright owner does not bring a lawsuit in district court within 14 days, the service provider is then required to restore the material to its location on its network. [512(g)(2)(C)]

A proper counter-notice must contain the following information:

        * The subscriber's name, address, phone number and physical or electronic signature [512(g)(3)(A)]
        * Identification of the material and its location before removal [512(g)(3)(B)]
        * A statement under penalty of perjury that the material was removed by mistake or misidentification [512(g)(3)(C)]
        * Subscriber consent to local federal court jurisdiction, or if overseas, to an appropriate judicial body. [512(g)(3)(D)]

If it is determined that the copyright holder misrepresented its claim regarding the infringing material, the copyright holder then becomes liable to the OSP for any damages that resulted from the improper removal of the material. [512(f)]

If I had mod points this would be funny.

[fishexe]

...This is not legal advice...

...You really should consult an attorney.

As a law student I understand the need to disclaim everything, but it seems really funny to say that "you should consult an attorney" (which was the gist of the entire post) is not legal advice. Also, your link uses the phrase "audiovisual game". That's good for a chuckle.

Definitely true though that many IP attorneys are nerds who are likely to be sympathetic. Someday soon I'll be yet another.

Re:If I had mod points this would be funny.

[TheoMurpse]

"You should consult an attorney" is not legal advice. I suppose you haven't taken the MPRE yet.

Re:If I had mod points this would be funny.

[fishexe]

"You should consult an attorney" is not legal advice. I suppose you haven't taken the MPRE yet.

So why disclaim it if it's the only advice he gave? And yes, I am a neophyte, I freely admit there are a zillion things I don't know yet.

Re:If I had mod points this would be funny.

[TheoMurpse]

He also gave this advice:

you definitely don't want to ignore this. The Pac-Man copyrights are well-established and well-defended in court

THIS ISN'T LEGAL ADVICE. I'M A LAWYER BUT NOT YOURS. :)
Beyond that, it's a good idea for you to start adding that disclaimer to basically everything even touching on the law you ever post here. Without it, you could inadvertently form an attorney-client relationship (A-C relationship forms when the "client" is reasonable in believing one has formed, regardless of your intent, IIRC) and get pwned hard down the line.

Re:If I had mod points this would be funny.

[fishexe]

He also gave this advice:

you definitely don't want to ignore this. The Pac-Man copyrights are well-established and well-defended in court

Yeah, good point, he did say that too.

THIS ISN'T LEGAL ADVICE. I'M A LAWYER BUT NOT YOURS. :) Beyond that, it's a good idea for you to start adding that disclaimer to basically everything even touching on the law you ever post here. Without it, you could inadvertently form an attorney-client relationship (A-C relationship forms when the "client" is reasonable in believing one has formed, regardless of your intent, IIRC) and get pwned hard down the line.

Thanks for the tip. We haven't studied A-C client relationship formation yet, but I know some of the clinics at my school make clients sign a disclaimer acknowledging that the attorney they meet with is only advising but not representing them. Good thing you disclaimed that, too. If I get into trouble for adding that disclaimer you're off the hook for advising me to ;-)

Re:If I had mod points this would be funny.

[Curmudgeonlyoldbloke]

... Also, your link uses the phrase "audiovisual game". That's good for a chuckle.

He's trying to prove he's really a legal professional - that's clearly from the same dictionary as "popular beat combo".

Re:It's almost certainly not a copyright violation

[Anonymous Coward]

It is a copyright violation for to manually paint a near identical copy of a manually painted artwork. It is a copyright violation to manually paint a near identical copy of a video game screenshot. It is also a copyright violation to make another video game that looks near identical to the older video game.

Shut down Hollywood

[OrangeTide]

Because Shakespeare and the Greeks already wrote all the common dramatic stories. Pretty much anything Hollywood makes that is any good is just a variation on thousand year old themes.

To summarize all the other comments:

[Anonymous Coward]

* You are violating the trademark of Namco by including "Pac" in your game's name. It is an established mark and you are detracting from the material interests of the company who owns it by your use. Change the name, remove all references to pac-man, and you'll be clear going forward.
* You are blatantly copying the gameplay of Pac-Man, but this IS NOT a copyright violation: http://www.copyright.gov/fls/fl108.pdf

However, the DMCA is NOT relevant in this case. You are NOT violating any copyright as long as you are not using any artwork, sounds, or text belonging to Namco, and the DMCA has no say over anything except for copyright.

What you should do:

* File a counter-takedown with Google.
* As soon as you are able to make changes to your product, get rid of all textual references to Pac-Man, including "Pac" in the name. If possible, re-do your sprites to get rid of the recognizable pac-man, ghosts, and any other unique artwork which you are imitating, which, by the way, could be construed as a copyright violation.
* Stop copying stuff and make your own games...all legal intricacies aside, this is quite obviously a pac-man clone and contains nothing original. (optional but recommended)

IANAL

And every lawyer born will tell him...

[Anonymous Coward]

"That's the same fucking maze as Pac-Man, asshole. You don't have a leg to stand on. That'll be $1000, please."

This whole article is mistitled

[MacGyver2210]

This article should be called "Avoiding blatant plagiarism as an Indy Game Developer"

WHAT DOES IS MATTER THAT IT'S A RIP-OFF?

[gilgongo]

Holy mother of screaming baby jeezus. I've been on /. for years and never have I seen such a frustrating thread as this.

Nintendo (or Namco or whoever they are) created Pac Man about 30 bloody years ago. Isn't that ENOUGH TIME for them to have made some money out of it?? Let it go to the public domain where people like this guy can re-interpret it (however incrementally) and maybe make it BETTER! If it's a boring clone, then it deserves to be - and will be - forgotten. If it's not, then cool!

To all those bleating "it's copyright infringement!" here: Would you have it that if I install the plumbing in your house, I should have the right to ask you for a payment every time you have a bath - for the rest of my life plus 70 years? And what do you think went on before about 1750? Was there no culture or innovation in the arts? There was no copyright then after all.

Can't you see that this post is a fantastic example of how we have been completely eaten up by crazy long copyright terms. WHAT DOES IT MATTER THAT THIS GAME IS A RIP-OFF OF A 30 YEAR OLD IDEA? I have no sympathy with cigar-smoking fatsos wanting to squeeze yet more money out of one person's ancient idea so they can build another swimming pool in their garden.

Absolutely none. I hope this little guy wins, and wins big.

Re:WHAT DOES IS MATTER THAT IT'S A RIP-OFF?

[Urza9814]

There are very, _very_ few posts here saying that what he did is _morally_ wrong. What they're saying is that it's pretty blatant copy and is, therefore, illegal. Yes, this game should be legal, but it's a pretty blatant Pac-Man ripoff. Not even the slightest attempt to change the game really. So based on our current laws, I don't think there's any way he can reasonably claim he didn't do anything illegal. (But of course, IANAL.)

Of course, there have been one or two posts saying it is morally wrong, based on the premise that he is trying to make a quick buck from a blatant ripoff of someone else's game. Which is a legitimate complaint, but I would imagine that everyone who buys it knows that's the case, and he does deserve some credit for bringing it to a new platform. If he was trying to pass it off as an original idea, then there'd be a problem.

Re:WHAT DOES IS MATTER THAT IT'S A RIP-OFF?

[Anonymous Coward]

Who are you to determine how much is "enough" money to be made off of a property? Why not let it remain the property of the creator and ask other people to be creative if they too wish to make money? It's really strange to me how many people think you shouldn't be entitled to the fruits of *your labor*, yet someone else should be entitled to profit from it.

By the way, your toilet analogy is stupid. If you purchased a stand-alone Pacman arcade console, you would not be putting in a quarter each time you play it.

Re:WHAT DOES IS MATTER THAT IT'S A RIP-OFF?

[Anonymous Coward]

We're talking about the legal implications here, not the moral ones. Legally, he's in the wrong. Morally? Well, he's not being creative in the slightest, so I can't say I care.

Re:WHAT DOES IS MATTER THAT IT'S A RIP-OFF?

[Anonymous Coward]

You play by the rules of the game. Under the current system, this is a pretty clear-cut case. If you don't like the rules, change them. Good luck.

Also, your analogy doesn't even make sense. When I use the pipes you've installed nothing is being copied (the whole reason for copyright law). It is futile to try to compare tangible property to intangible property (and vice versa).

Re:WHAT DOES IS MATTER THAT IT'S A RIP-OFF?

[WizardOfFoo]

Say what you will about what copyright law *should be* but previous posters are telling you what copyright law *is now*. Unfortunately for OP he looks like he's dead in the water under not just current copyright law, but trademark as well. If you don't like the situation, you've already used soap box so get on to using ballot box and hopefully you can get it changed without resorting to ammo box.

Re:WHAT DOES IS MATTER THAT IT'S A RIP-OFF?

[Anonymous Coward]

> There are very, _very_ few posts here saying that what he did is _morally_ wrong.

I'd say it IS morally wrong; it's basically plagiarism. It's taking someone else's work and passing it off as your own. That's deceptive at its root.

Re:WHAT DOES IS MATTER THAT IT'S A RIP-OFF?

[Anonymous Coward]

The question is not whether or not a company should still have their claws in Pac-Man.

The question is if this guy will get his clock cleaned if it comes down to court.

The answer is "probably," ergo the need for discussion. It's unfortunate that this is the case (believe me, the only way I'm for strict copyright enforcement is for a far, FAR shorter copyright time, say five to ten years). However, it IS the case, and even if copyright law changed tomorrow I'm not sure it would help him any because this is the set of laws that he acted under and was attacked under.

Re:WHAT DOES IS MATTER THAT IT'S A RIP-OFF?

[Anonymous Coward]

it's pretty blatant copy and is, therefore, illegal. Yes, this game should be legal, but it's a pretty blatant Pac-Man ripoff. Not even the slightest attempt to change the game really.

You utterly miss GP's point.

WHAT DOES IT MATTER THAT THIS GAME IS A RIP-OFF OF A 30 YEAR OLD IDEA? I have no sympathy with cigar-smoking fatsos wanting to squeeze yet more money out of one person's ancient idea so they can build another swimming pool in their garden.

Re:WHAT DOES IS MATTER THAT IT'S A RIP-OFF?

[Anonymous Coward]

What on earth does your view of an ideal world have to do with this, other than trolling?

Just because you don't like the law, you want to suggest people get themselves into lawsuits which, from the educated guess of it, they are probably going to lose?

Instead of whining about it, why don't you do something constructive about your deep-felt ideals and offer to pay for this guy's lawyer fees?? Oh, I see...

(btw. I happen to agree that copyright ownership is way too long, but I'm certainly not going to suggest this guys tries it.)

Re:WHAT DOES IS MATTER THAT IT'S A RIP-OFF?

[tmach]

I'm sorry, but that argument is just ridiculous. This guy didn't rip off the IDEA--screenwriters and authors have been doing that ever since the first caveman scrawled a "rich girl, poor boy" story on a cave wall. This guy ripped off the actual characters, and even named the main character "pacman". Sure, the original game has been around for almost 30 years, but it isn't like Pac Man is some obscure work that no one remembers. Namco/Bandai currently makes a version for every platform out there--Android included.

As many people have said, all you have to do is create your own characters. You can have them running around doing the same thing Pac Man does all day long, it won't matter because they're YOUR characters. This guy did not even bother to do that. He used someone else characters and someone else's design. Hollywood does this all the time, because it ran out if ideas a long time ago. However, you won't see someone remaking "General Hospital" using the same characters, names, etc. even though "General Hospital" has been around a lot longer than Pac Man. That's because "General Hospital" never went away. Neither has Pac Man.

What it boils down to is this: creative people deserve to be compensated for good ideas. (They can be compensated for bad ones, too... if someone's willing to pay.) The idea may be simple. You may look at it and say "I could have come up with that!". But the fact is, you DIDN'T come up with it--and the person who DID is the one who deserves the recognition. That is the legitimate use of copyright law.

Maybe you aren't the creative type who can come up with something simple and iconic that's still making money 30 years from now, but just because you can't do it, don't knock those who can.

Re:WHAT DOES IS MATTER THAT IT'S A RIP-OFF?

[bit01]

Look at all the "Anonymous Coward" corporate shills that have replied to you trying to neutralize your message! As usual deliberately trying to confuse the law with ethics. You're perfectly correct of course.

---

I own it therefore I get to decide what happens to it is a meaningless tautology. Ownership by definition is the right to control. The more interesting question is who owns it?

Re:WHAT DOES IS MATTER THAT IT'S A RIP-OFF?

[Anonymous Coward]

Pac-Man Championship Edition DX: Championship Harder, came out less than a month ago, so whats stopping them from claiming he infringed on the copyright of THAT game instead,
or any other Pacman game released since the first one?

If you think 30 years should be long enough for a copyright to 'expire', then it looks like Namco created a new one with Pacman "ultra-long-name-of-death"

Re:WHAT DOES IS MATTER THAT IT'S A RIP-OFF?

[johnsjs]

It matters because it might/is going to cost him a lot of money that he doesn't have, and could professionally destroy him.

Should Pacman still be under copyright? No, or at least very arguably not after 30 years.

Is Pacman still under copyright? Yes.

Is this copyright infringement UNDER THE RULES AS THEY STAND? Almost certainly

Does that make the author a bad man who deserves punishment? No inference can be drawn.

Is some form of copyright protection necessary in the modern world? Probably; 260 years ago before copyright the investment required to product a work of art was almost entirely personal - and anything substantial was commissioned. Without copyright blockbusters would not exist - you may not regard that as a bad thing, but many people like them.

What can we conclude? He is boned, copyright needs reform.

Is this an original conclusion? Not by a country mile.

Re:WHAT DOES IS MATTER THAT IT'S A RIP-OFF?

[Anonymous Coward]

PacMan variants are still a big money maker for Namco to this day. In fact they just released Pac Man Championship DX last week for Xbox 360, PS3 and other platforms. Just because YOU don't care about an "old game" doesn't invalidate a company or person's right to protect their work.

And the amount of people posting here actually in support of this rip-off is just mind-blowing. The author obviously has no clue about the reality of copyright and trademarks, thinking only the name or direct 1:1 copying matters, and then you morons come out furthering this ignorance. Whatever happend to Slashdot's collective IQ?!

Not that hard to avoid woes

[kenstcyr]

Pac-Man is abstract. Fill in the blank: ____ runs through a maze [of ____] being chased by ______. Along the way he picks up _____. For example, in my game Mun Kee Run A monkey runs through a maze of an abandoned city being chased by zombies. Along the way he picks up bananas and shiny objects. Same concept, fresh artwork, no DMCA notice.

Re:Not that hard to avoid woes

[mswhippingboy]

no DMCA notice yet .

There. Fixed that for ya....

Re:As usual... [WRONG]

[Anonymous Coward]

Look at the screenshot. It's the SAME. FUCKING. MAZE.

It's pacman!

[Anonymous Coward]

So you wrote your own pacman code right?
And knocked up some of your own bitmaps in place of the originals right?
And removed a syllable from the title right?
Sourced some sounds right?

Erm so comparing it to pacman, it's a copy right?

And you're bitching about what exactly?

Does it really matter if it's copyright...

[mswhippingboy]

infringement or not?

Big corporate vs small time developer.

Right vs wrong has nothing to do with it.
It boils down to high-powered legal team vs "can't afford a lawyer". Case closed. On to the next story...

fair?

[db10]

It's not complicated. If you want to be treated fairly, then you have to play fair. Ripping off a game lock stock and barrel, you already failed the test regardless of the merits of the DMCA notice.

Modern copyright law is STUPID

[airfoobar]

This highlights why today's copyright law is flawed. Pacman was created 30 years ago, and that someone could be sued for it today is just ridiculous. Plus, add to that the over-stretched "derivative works" laws, where things that look similar but are not copies can be legally considered copies (i.e., copyright no longer applies to the expression of an idea, but to the underlying concept as well -- definitely what the founding fathers intended!).

I'm sorry, but it really pisses me off to see someone's hard work being taken off the market because something similar was released in 1980. Take away the copyright protection, and let Namco compete with the OP to make the best clone of the 1980 game!

Re:Modern copyright law is STUPID

[SnowDog74]

30 years is too long? How old are you? The market for Pac Man hasn't died. It's still the top selling arcade game of all time. Just because other people lack creativity to come up with something even four or five degrees of difference from a game involving a yellow circle with a triangle mouth and four ghosts of different colors going around a maze with tunnels, pills and power wafers, doesn't automatically make licensing a moral obligation of the original creator/owner of the work.

It's also foolish of you to use the "hard work" argument in this context because as my description above demonstrates, Namco did 90 percent of the work for him.

Re:Modern copyright law is STUPID

[airfoobar]

30 years is almost half a lifetime, so yes it's too long. The same thing will be happening in another 60 years from now, so will you be asking for my age then?

So what if the market hasn't died yet? That they can still squeeze money out of Pacman doesn't mean they are entitled to do so. The monopolies given by copyright were meant to be for a limited time only, and entitlement is not a good argument for extending its duration.

And yes, hard work. Just coming up with an idea isn't copyrightable, nor is it really hard work. Being paid rent for something a former employee created 30 years ago is not hard work, either. Creating a tangible form for that idea --the expression-- is. All the code and graphics for the game were done by him, while Namco did nothing except block people from seeing his work.

Re:Modern copyright law is STUPID

[km_2_go]

I'm sorry that it pisses you off to see 'someone's hard work' being taken off the market, but what hard work are you referring to? Namco sells a port of PacMan for Android, Windows Phone 7, Palm PDAs, XBOX360, etc. So no, it isn't ridiculous that someone could be sued for trying to sell an almost exact copy of one of their most popular products.

Re:Modern copyright law is STUPID

[onefriedrice]

I'm sorry, but it really pisses me off to see someone's hard work being taken off the market because something similar was released in 1980. Take away the copyright protection, and let Namco compete with the OP to make the best clone of the 1980 game!

Far be it from me to poopoo someone else's "hard work," but a pac man clone? Really? Not just a remix, but an exact replica. His "hard work" would have been better spent on a game with some originality, then maybe he could exert some copyright enforcement of his own.

I guess I don't have too much of a problem with copyright law and games. Gameplay isn't copyrightable, but artwork and sound are. All he had to do was mix it up a bit.

Re:Modern copyright law is STUPID

[airfoobar]

Thank you! That's exactly my point, actually -- they don't want their Android remake of the game to have to compete with his remake of the game, so they just take his off the market.

I don't think anyone can deny this is about killing off competition. What bothers me is that it's now 30 years on and they still retain that privilege, and they'll still have the privilege many decades from now.

don't use apostrophes to pluralize

[Anonymous Coward]

It makes you look even dumber than someone who can't spell 'marshmallow'.

The best way to avoid problems.

[Restil]

You get permission. In writing. IN ADVANCE. Unless your idea is so unusual or unique that it can't reasonably be considered to be a direct derivative of some other copyrighted creative work, your best bet is to feel out those who might complain about it before its an issue. If they say no, you simply move on to the next idea, without losing any time, money or resources. While the world has spent the last couple of decades jumping on the multi-ghz 3D-everything bandwagon with regards to games, a lot of the simpler classic games have fallen off the radar, and yet the copyright and trademark owners have maintained and enforced them, because there's a good chance those old concepts will gain some new life in the handheld/portable/phone market, where they would never again see light on the desktop.

Besides, Pac-Man has had a long and colorful history of infringement lawsuits related to it. It's a field of landmines best left avoided.

-Restil

Re:The best way to avoid problems.

[Anonymous Coward]

Even Google was smart enough to ask Namco for permission before they created Google Pac-Man logo.

Base on what I saw on Super Pac I would say it's copyright infringement.

Indy Game Developer?

[Music2Eat]

Which part of this game did you develop exactly? The characters? The game play? The maze layout?

I haven't heard the sound effects, just seen your screen shots, but I'd be willing to bet they sound exactly like "pacman" as well.

You've developed nothing. All you did was steal someone elses ideas and try and claim them as your own. This is exactly what copyright is for. Try developing your OWN game, then claim to be an Indy Game Developer.

My guess is that maybe the name is too similar,

[John Hasler]

The DMCA does not apply to trademark infringement. It is for copyright only. Send Google a "counter-takedown notice". They will put your stuff back up and the complainant will then have to deal directly with you. Somewhere on Google's site are instructions on how to do this.

How does one avoid DMCA? Don't make a pacman game.

[SnowDog74]

Although my version is obviously inspired by the original arcade game, no original artwork or sound has been copied.

The idea of a "copy" means a facsimile... whether produced mechanically by an image, or produced by replicating the look and feel of, say, a Van Gogh painting, or by using your own code to generate a series of pixels that create a reasonably similar set of characters to the Pac Man game, that is essentially the definition of what it means to copy, transcending and irrespective of the particular technology used to facilitate the copy—whether by hand, photocopier or computer code. What also matters here is that your objective was commercial in nature, not related to education, criticism or comment as would have exempted you under 17 USC 1, Section 107. Bear in mind I'm not a lawyer, but I do know that you need to go talk to one now.

How does one "navigate the minefield" of copyright law? Well, for starters, don't attempt to make a spinoff of the most popular arcade game of all time without permission in writing from the creators.

Move to iOS

[Anonymous Coward]

Apple would have warned you of copyright infringement before publishing the app.

Can they be better than the original

[Anonymous Coward]

I think the issue of remaking classic games is pretty vague. This guy's game looks 100% derivative from the screenshots and gameplay description, but what if he added some new gameplay elements that Namco never bothered to incorporate? What if his game is significantly more fun than the "real" Pac Man? The real answer in that case is that he would have been better advised to make an original IP through graphics, names, and avoidances of the Pac Man association.

But what if nostalgia is one of the key contributors to something's quality? A very good argument for allowing near-perfect remakes is Super Mario Bros Crossover:
http://www.explodingrabbit.com/games/super-mario-bros-crossover

The game is more fun than the sum of its component games/characters available for legal purchase on the Wii Marketplace. Nintendo would never have made this game (without maybe employing unwanted 3D graphics and a $40-$50 price tag), but the demand is clearly there. Is the whole package enough to justify ignoring Nintendo's copyright claims (if they made them)? When is a derivative product justified or not? I'm curious.

Re:As usual... [WRONG]

[TheoMurpse]

There are already about a hundred posts here elaborating correctly in the exact same way. Just open your eyes and read any comment talking about how it's clearly a copyright violation, and you're likely reading something correct enough for /.'s purposes.

try to be original

[Nyder]

The problem is, you aren't original. In fact, you add very little to a classic game.

Even if this isn't a copyright violation or TM infridgement, you lack common sense.

Is there a shortage of Pacman games? No.

How about next time, you make something original? You can go with your pac man idea, but change the graphics, make new boards, etc.

Or how about you just make a different type of game?

Something, well, original. Not going to give you ideas, because you seem to follow them too closely.

Re:But...but corpra$hun'$ are teh €eevu£

[Anonymous Coward]

Yes, but even worse than that is making money off it!

The law matters.

[pavon]

He is asking for advice on how to handle the legal matters of this situation. Since Japan and the US have both agreed to the Berne convention, then legally copyright exists for at least 50 years past the death of the author. It doesn't matter what you think copyright duration should be, he has broken the law, and could be liable for damages. The courts aren't going to overthrow a law that has already been ruled constitutional, so it is futile to fight this in court. The best legal advice in this situation is to let it go.

"Indy"

[Anonymous Coward]

As a former resident of Indianapolis, this stuff drives me crazy. Indy means Indianapolis, and it's poisoning internet searches for anything in the area. I know it's getting too late to change it, but come on, it's the 13th largest city in the U.S.

Re:"Indy"

[Ash-Fox]

As a former resident of Indianapolis, this stuff drives me crazy. Indy means Indianapolis, and it's poisoning internet searches for anything in the area. I know it's getting too late to change it, but come on, it's the 13th largest city in the U.S.

You've got your work set out for you AC. You will also need to stop the following:

The Indy is also The Independent is a British newspaper published by Tony O'Reilly's Independent News & Media.

Indy is a music discovery tool for computers with an Internet connection.

INDY, short for I'm not dead yet, is a gene of the model organism, the fruitfly Drosophila melanogaster.

In professional wrestling, the independent circuit or indy circuit refers to the many independent promotions which are much smaller than major televised promotions, particularly the current World Wrestling Entertainment (WWE) and Total Nonstop Action Wrestling (TNA) promotions.

Indy is a self-released album by the nu metal music group Motograter in February 2000. The album has a total of 10 tracks. Only 1500 of the Indy albums were produced.

West Indies: the string of islands between North America and South America; a popular resort area

The Indies is a term that has been used to describe the lands of South and Southeast Asia,Oxford Dictionary of English 2e, Oxford University Press, 2003, East Indies/East India occupying all of the present India, Pakistan, Bangladesh, Myanmar, Nepal, Sri Lanka, the Maldives, and also Thailand.

Re:"Indy"

[Anonymous Coward]

As a former resident of Atlantic City, this stuff drives me crazy. AC means Atlantic City and it's poisoning internet searches for anything in the area.

do original stuff only

[Anonymous Coward]

First bit of advice; DON'T MAKE GAMES INSPIRED BY SOMEONE ELSE'S INTELLECTUAL PROPERTY. If you had simply invented your own original game, there would be no similarities to cause you legal issues in the first place. Remember facebook.com according to courts now owns 'book' and 'face' - silly yes, but a law we must live with or have changed. If you _must_ take inspiration from somewhere, look at OLD stuff out of copyright.

Gaming Guru

Lazy

[Legion303]

"As a part-time developer with limited means (i.e. can't afford expensive lawyers), but willing to make best efforts to avoid legal issues, how does one negotiate what seems to be a difficult minefield of trademarks, copyrights and DMCA?"

You make an original game that isn't a cheap knockoff of something that has already been cloned several fucking times. Good luck.

Dude, with all due..

[Anonymous Coward]

.. you are not part of the solution to copyright problems, you are simply a part of the problem.

Go get a life & do something original, for a change - the results would please you, us and Bandai/Namco/WhoeverTheFuck.

That they are setting a DMCA on your ASS.. ..Good for them & fuck you, you are nout but a leech - sorry but, be thankful the law allows you at least this chance to walk away with whatever grace reamains. Take the chance, seize the day - if you cannot provide the World something new otherwise, you are in the wrong business yourself. G>o be a lawyer, instead - maybe then, you can actuall appreciate things *from the other side*

Re:Dude, with all due..

[Anonymous Coward]

..and, I write this as someone who is fucking sick of people ripping my products - nor do I have the cash to hire a battallion of lawers.. DO YOU FUCKING KNOW HOW MUCH IT COSTS TO PROTECT SOMETHING IN THE FIRST PLACE?!

- fucking Mooch.

dude...

[rastoboy29]

you have the skills to make a video game, but all you do with them is clone an old (and fairly boring) game?

Why not make a new one?

Copyright DOES exist for a reason

[Trerro]

Is Copyright out of control in this country, and frequently abused? Yes. Does it need to be toned way the hell down and reformed? Yes. Does that excuse this game? No.

Wanting to duplicate the style and basic gameplay of a game is fine. Game genres exist for a reason, and many a solid game has been made on the concept of "hey, we liked this game, but we have our own story and characters, and we're going to change gameplay elements x and y to keep it fresh". Starcraft didn't do anything especially amazing in the RTS genre, but it paired solid, well-balanced gameplay with a couple of new elements with a good story-based campaign.

Really, even a clone that doesn't really change gameplay is generally fine as long as you at least have your own story, characters, and level design. These tend to be mediocre games that few care about, but occasionally one will succeed on its story as a "meh, this is worth playing through once" kinda thing. Even if you've got nothing going for you though, your game will simply suck. It won't violate copyright.

This, however, is very much not that kind of thing. You copied the characters. You copied the exact level design. Your scoring system is identical. Your powerup works the same way, and is in the same place. You copied the gameplay down to the point that no one would know it wasn't Pacman if they didn't see the title. Well, actually, you even used "Pac" in the title, so even THAT'S not guarenteed.

That's not merely creating in a genre, nor is it even a clone. It's a flat out copy of the game. This IS exactly what copyright is meant to prevent - you profiting from someone else's exact work. Indy means nothing here. I don't care if you're 1 guy coding in his dorm room or a megacorp, you're flat out ripping off someone else's game for your own profit, and no one is going to support that.

You clearly know how to program... apply that skill to your own idea and you'll do just fine as an indy developer. You can probably even reuse a lot of that code you just wrote on a game of your own design. Alternatively, if you have no creativity, team up with someone who's great at game design and story, but fails at code, and make it a 2 man project.

Sell the program on your site.

[Kaz Kylheku]

That's what you get for caving in to some "official store associated with device" extortion.

"Try having an original idea" : bullshit

[unity100]

bullshit of the first order.

either someone already registered something that your 'original' idea has similar parts to, or, registering it as of this moment, or will do it in a few days.

even if you run to register it yourself, its almost certain that someone registered something that can be used for dmca against you.

there is no end to this. you cant avoid dmca. eventually, if your thing becomes popular, someone will file one to you and you will either have to pay up (if you can come to a consensus) or fight it out in courts.

you said minefield. yea, it is. it is an evergrowing minefield in which anyone can mine anyone else, and the only ones who can traverse that minefield are those who have sufficient wealth. (armies of lawyers).

this is inevitable result of patent/copyright/trademark systems. you start giving ownership of ideas and creatives of mind to people, and eventually there comes a point in which the bulk of what mankind has created and what can be used for creating further stuff, becomes registered/owned. and then the turf wars begin.

it took approx 100 years for saturation to be reached. we are at the initial stage of the turf wars. from that point on, it may go in 2 ways :

a) consolidation begins, and a new era of intellectual feudalism begins, in which ideas and concepts are owned by a power hierarchy from top to bottom. (just like in the current economic system of products and services). you get to having to either pay up, or get permission for whatever you are doing.

b) rebellion begins, and countries and people start to abandon the idea of intellectual property.

c) an odd, unproductive state ensues in which the feudalism is still there, but it is largely ignored, unless what someone has created becomes popular/profitable. then vultures start hammering home.

Abuse of DMCA??

[imaginieus]

Seriously?

This guy stole someones idea, and made an exact replica of it. What he did is downright un-American. This country was founded on the principle that nobody should be allowed to reap the benefits of my hard work without my permission. If I work hard enough and create something new and original, I should be able to benefit from it for as long as people are willing to pay for my idea, and the time frame should not be cut short because someone decided to give away my art for free.

I've heard too many times, "information wants to be free", and "copyrights/patents stifle creativity". No, copyrights and patents encourage creativity. Freedom of information encourages poverty for anyone with creative aspirations. It doesn't cost an artist anything to have his music distributed over bit torrent, but guess what? It does cost him money and time to make that music. The fact is, most of your favorite songs, games, books, movies, and even software would not have been created if not for IP laws. If it wasn't for the rights Namco is choosing to exercise in this situation, games like pac man wouldn't even exist. The people who spend thousands of hours creating them would be working at a McDonald's trying desperately to support their families. They would not have the time to create the art that you enjoy so thoroughly.

If the creators of Pacman want to relinquish their rights to allow people greater access to their creation, I would greatly admire them for it. On the other hand, if they decide that they want to exercise their rights to the greatest extent of the law, I don't believe that I or anyone else has the right to question their decision. For all I know their retirement fund tanked, and they're living off of pacman royalties. Do I feel sorry for the guy that wasted his time replicating their work? Not really, he should have asked for their permission first. Do I wish that I could pacman on my android phone? Yes, but that is not my decision to make.

Now, aside from the moral issues, this guy just wasn't very smart. There are plenty of scavenger companies out there that make a lot of money my cloning other people's ideas, and my opinion of them aside, at least they're smart enough to make it appear that they had a unique idea. I mean:

1. Super *Pac*
2. Character named Pacman
3. Identical monsters
4. Identical layout.
5. Identical main character
6. Identical gameplay
7. DIRECT reference to the original work

This guy was asking for a lawsuit, and if he is reading this, my (non-lawyer) advice is: play dead and cross your fingers that they lose their appetite. If I were you, I would consult a lawyer ASAP to figure out how to protect myself from further legal action.

Re:But...but corpra$hun'$ are teh €eevu£

[nedlohs]

You haven't seen an article about some company not providing the source of a GPLed code they modified and put in their router/media player/etc?

Try to cut a deal with them

[Anonymous Coward]

Try to cut a deal with them.
Give them access to the code and allow them to release it under their own brand.
Continue to develop it and release it under a new name, unique graphics and try make the game more original.
Inquire if they need assistance developing other games. Be polite and easy to deal with.

Advice? Well, that's comes cheap!

[Anonymous Coward]

I have some advice:

          MAKE SOMETHING ORIGINAL!!!

Do we really need more copies of Tetris, PacMan, Breakout, SuperMario, yadda, yadda, yadda. I mean, really - it's just not that hard to make something new and original in these kinds of genre. I mean, you could just as easily be running round in a post-apocalyptic nightmare cityscape "maze" with four flesh-eating zombies chasing you around while you search the maze for clues to the fate of your long lost girlfriend - while finding ammo caches with which to blow the zombies away. It's a similar programming challenge - it can play kinda similarly so the fun value will be the same...and yet it's different and interesting. Substitute cute bunnies and unicorns and you have the other half of the gaming population covered.

Technically not a copyright violation

[Anonymous Coward]

The test is substantive similarity. However "look and feel" is only a small part of the overall expression of a work. Technically, if you wrote then entire source by yourself without copying from the original game PacMan, you would not be in copyright violation as the source difference would substantially outstrip the artwork similarities (or differences in this case)

You would however be violating Namco's trademark on PacMan because you would appear to be passing off your work as PacMan.

The problem with copyright law today (especially in the US) is the concept of derivative work. The idiots that came up with the concept where you can copyright a character needs to be shot and the laws completely expunged.

TheEndofDays admits stalking others & why?

[Anonymous Coward]

What was you reply on stalking others there? Here it is, a direct quote from your reply here on "why are you stalking others?" here:

http://slashdot.org/comments.pl?sid=1892470&cid=34419130

"Because I can" by The End Of Days (1243248)
on Thursday December 02, @12:07PM (#34419130)

So can I and I will expose you for it weasel. Now everyone knows you're a scumbag troller and stalker because you admitted to stalking others here. Above all else you ran there (like the little coward you are) proving you're nothing more than a worthless cowardly little troll.

Re:TheEndofDays admits stalking others & why?

[The End Of Days]

Are you getting a charge that I respond? I mean you seem almost too thrilled to think since you keep repeating yourself. I'm not sure who you're convincing, it's pretty damned likely no one is paying attention to this. Certainly no one cares about your accusations.

Mod parent up

[Guidii]

This is one of the few comments in this thread that actually answer the OP's question: What should I do to avoid IP issues?

Well done, Restil. Good advice, too.

indy?

[Anonymous Coward]

sorry mate, but you can't claim to be an "independent" game developer when your game idea is wholly dependent on someone else's.

show me the indy developer?

[Anonymous Coward]

How about showing me the indy developer, and not game knock off artist. except you're not even a knockoff artist, more like ripoff artist.

Can your lawyer beat theirs?

[Anonymous Coward]

Doubtful. Do you have a personal legal team?

In court, it doesn't matter what really happened, or what it's really like. It matters who can argue better, and which lawyers can cook up the best BS. Obviously you made a pac man clone. Obviously somebody had a problem with that. If a 7 foot tall man with a gun told you he had a real problem with you eating at McDonalds, I bet you'd go to Burger King. So when a major company tells you they have a problem, don't say 'I'll sure show you!'. Because you won't. You'll lose. Everything.

Here's another good analogy. Try to find a real nerd - someone who understands programming and computers to the fullest - and respects Windows. Bet you can't. But, if that nerd depends on Adobe CS5, I'll bet he has a copy of Windows running at home. You're not the biggest, meanest force in the world. If a bigger, meaner one gets on your case, don't try to change the world. If you were a world changer, you wouldn't be bitching on /.

Don't be a dick...

[Eskarel]

unless you have the lawyers to back it up.

In the unlikely event that what you have done doesn't actually violate any copyright or other intellectual property it's only in the most pedantic and legally technical way. If you are going to play the pedantic game you need to be able to back up your assertion that you are "technically" correct, which means you need to go to court with a lawyer and convince a judge. Since you don't have a lawyer(which is obvious because you did this in the first place) and can't afford one then your best bet is to keep your head down and hope bandai don't take this further. Not even the EFF or FSF will take this case pro bono and if they sue you, you're screwed.

Good luck

[Spit]

Considering the maze, gameplay, characters and name are all direct copies of the original game by Namco/Midway. Aside from the clear trade of Namco's Super Pac-Man, Pac-Man was the case that set precedent for "look and feel" with its quashing of KC Munchkin, a distinctive yet pac-man influenced title.

Namco have also recently released a new Pac-Man game of which yours is a direct competitor. Don't waste your time on this, do something else.

Innovative indie developer

[Anonymous Coward]

Maybe you should let it go and take on another innovative project, like a fart app.

yeah right....

[SuperDre]

Oh comeon, are you really that dumb? it looks like pac-man, it plays like pac-man, so it should be considered pac-man... You must be really a blockhead if you didn't see this coming, especially if you ask money for it (It's not clear if you do). If you every create a game that is clearly based on another game then make sure you've got clearance from the original creator, if you don't then at least make sure you don't make money of it. People shouldn't act like they are a victim if they clearly are stupid enough to rip someone's idea and think they can get away with it....

There is a precedent

[Anonymous Coward]

http://en.wikipedia.org/wiki/The_Great_Giana_Sisters#History

Advice

[David_Shultz]

The best thing to do is to find a free legal clinic in your area. I volunteered at a clinic in Toronto called Artists Legal Advice Services, which offered 1/2 hour of free legal advice to artists/creators/etc. There may be a similar clinic in your area. If not (or in addition) I recommend you read a primer on Intellectual Property Law. I like the "Irwin Law" introduction to Intellectual Property. Finally, questions about whether your game infringes someone's copyright or trademark often do not have right or wrong answers. That is precisely why we have a court system, and why we pay lawyers so much. These questions are argued and resolved at the time of trial. The best you can do is to be aware of the legal landscape and hope you can afford a good lawyer if it comes down to that.

Re:But...but corpra$hun'$ are teh €eevu£

[bit01]

Because on the slashdot in *my* universe,

Some people, possibly you, are fanatics who can't cope with the fact that slashdot hosts people with many and diverse points of view.

The fact that most of those points of view disagree with the copyright fundamentalists is the fanatic's problem, not the slashdot readership's. The "hive mind" or similar accusation is usually done by trolls, the simple minded or shills. They should all get a life.

---

Like software, intellectual property law is a product of the mind, and can be anything we want it to be. Let's get it right.

Now *that* was 100% wrong.

[Anonymous Coward]

Now *that* was 100% wrong. Because when you say "Absolutely, 100% wrong on both counts.", that is absolutely 100% wrong. If you'd said "that's not always the case", then you'd be right, but no, you had to go and throw your foot up to the jawline into it.

"and have thereby acquired copyright protection for the character itself."

And YOU keep forgetting that if the artwork is original, it's not a copyright violation.

"Accordingly, fan fiction often does infringe copyrights. "

Only if they take significant text verbatim. That people with pots of money sue over it is no proof it's a problem, since you can sue for anything. That people lose doesn't prove anything, since you may lose money to continue the fight, give up, have a crappy lawyer or they may have a good one. See SCO for examples on what you can sue for and CLAIM as copyright which isn't.

"However, no one sues them because it's just a dumb business move. "

See SCO again. And JK Rowling (though she's OK with having nicked someone else's work). Oh, and Disney wrt Simba/The Lion King.

Knee-jerking != making an informed argument

[RichiH]

Just because you like to pretend that you can "steal" an idea, and one that is a few decades old at that, does not make it so.

The DMCA is about copyright. The name "Super Pac" does not violate any copyright. If OP did not copy artwork or code, he should be clean.

Re:Knee-jerking != making an informed argument

[mwvdlee]

One look at the screenshots shows it's clearly copied.
He may not have ripped the original ROM files or even created pixel perfect duplicates, but it's quite obvious the graphics were intended to look identical to the arcade's.
You may remember that copyright law predates the age of perfect digital copies. Hand-made copies violate copyright laws just as well.

Re:Knee-jerking != making an informed argument

[texaport]

He could have named his PacMan clone as DMCA-Man and then maybe even reversed it to spell ACMD-Man to not be so obvious. Or perhaps changed a letter and called it ACME and put forward an original game idea about a wiley coyote who chases a roadrunner around a desert.

Re:Knee-jerking != making an informed argument

[stonewolf]

As you said the DMCA is about copyright and not about ideas. He did copy the idea, but that is not the question. Anyway, ideas are protected by patents, not copyrights. If there were any patents on Pac-Man they should have expired by now.

You say that the question is whether or not he copied the artwork or code. Sorry, no. It does not matter if he copied the code at all. If you go to his website you'll see that he clearly copied the artwork. Copying does not mean getting a copy of the orignal art work. It does not mean running something through a copy machine or type "cp" in to a command line. A copy is a copy if the copier had access to the original and the copy looks "substantially" like the original. That is why you are violating copyright if you draw a picture of Mickey Mouse. Humanity made copies long before there were computers. Copyright law goes back centuries.

For further reading I suggest you all go look at:

Atari v. NORTH AMERICAN PHILIPS CONSUMER ELECTRONICS CORP
http://ftp.resource.org/courts.gov/c/F2/672/672.F2d.607.81-2920.html

which is the federal district court ruling on a similar case from 1982. It just happens to cover exactly the same circumstances but 28 years earlier. It goes into depth on the method used by the court to determine that an illegal copy had been made and covers the law and precedents that applied up through 1982. This isn't a case of the DMCA making something illegal that used to be legal. This is a case of the owners of Pac-Man using recent law to rather politely and cheaply stop a blatant case of copyright infringement.

Like I said earlier, they could have sued him and left him penniless for the rest of his life. All they did was stop him from being able to continue to distribute their property. The new version of the game he has posted is most likely still in violation. All he did was change a little art to make it look a little different. Considering the existing precedent it would be a cheap suit to prosecute. It is the same circumstance as the one I pointed out from 28 years ago. I bet the court would just give them a summary judgment based on screen shots. The scum bag who asked the question would be sitting with a bill for legal costs and damages that he would probably never be able to pay off.

Stonewolf

woah

[Anonymous Coward]

anti stupidity? have you actually ever read some of the posts on slashdot?

god i hope not

[fireylord]

If the EFF want to get into bed with people attempting to profit off of copyright infringement (even if it is 'inadvertent' which is what the poster of TFA is seemingly attempting to claim) then any last vestige of their credibility is going to vanish.

Definitely not a DMCA issue

[Just Brew It!]

But that said, creating a game that is a blatant clone of Pac-Man, and using "Pac" in the name, and selling the game through a high-profile online store add up to the equivalent of hanging a huge "kick me" sign on your back. I would have been very surprised if they had not come after you. Even if none of the code or artwork has been literally copied, they may have a pretty strong case against you for trademark infringement based on the name alone.

Retraction and disclaimer

[fishexe]

Your advice is dangerous because you're telling him to fight against legal notice which he almost certainly has no chance of succeeding with and if he does take it all the way to court, it would probably destroy him as he really does not have a leg to stand on.

I think he does have a leg to stand on. Remember when Apple sued Microsoft for copying the "look and feel" of Mac OS into MS Windows?? The judge said "look and feel" was not copyrightable and threw the whole thing out. If the original poster is being honest about not directly copying any art, graphics, sounds or text (including source or object code), then he'll be in a similar situation. If anything, it would be a mistake to go to court because even if he wins he'll still be out all his court costs, not because he'll most likely lose.

So to the person asking the original question in the summary- if you want to know what you did wrong theres your answer. The worst thing you can do is fight this, because legally, you seem to be completely in the wrong, and will hence almost certainly lose.

The best thing you can do is start to fight it, then negotiate for Namco to give you permission in exchange for a cut. If you play your cards right it will work, I've seen it happen before with lawsuits which were even clearer slam-dunks for the copyright holder than this would be (i.e. the little guy had literally cut and pasted text from the original product, but the big guy didn't want to look like a bully so they negotiated a strategic partnership in the middle of the lawsuit and settled).

Having looked at the link I would like to basically retract what I've said above, particularly the bold portions, which were predicated on the assumption that "no original artwork or sound has been copied" was actually a true statement. Given that all the artwork, perhaps among other things, was copied, you're basically screwed.

It's also been pointed out to me that what I put forth as an attempt at counterpoint could be read as legal advice. Therefore, disclaimer: IANAL, and if I were I wouldn't be representing you over the internet, so go to a real attorney, and don't rely on what I've said or anything else you read on Slashdot except the advice to go to a real attorney.

For starters...

[Hamsterdan]

Not using pacman in the URL of his game...

Am I the only one to think Duh! ???

"Does anyone have tips in this area?"

[Ant P.]

Yeah. Don't give Namco free mindshare and they won't punish you.

The other thing you did wrong

[hendrikboom]

The other thing you did wrong (aside from copying too much of the original game) was leaving your only copy on someone else's site, without having a copy on your own system, nor on a thumb drive on your bookshelf or something.

As a result, you no longer have access to your own code.

If you had kept your own copy of the source code, you'd now be in a position to change your game so it no longer infringes.

Too late now, I suspect.

Author got what he deserves.

[ravyne]

Ok, so abuse of DMCA aside (though should not be overlooked, its just a different issue), the author got what he had coming.

Exhibit #1: It looks like fucking Pacman! -- Reimplementing the original artwork does not amount to your own original artwork. This is the same thing those fools did last year who claimed that they could legally sell Beatle's MP3s because they had filtered them through "a unique algorithm" and recorded the results. That work, and this, were not original -- they are derivative (and closely at that) which is protected. If you want to avoid that issue, create environments, and more importantly characters that are at least reasonably original.

Exhibit #2: SuperPac -- Pacman may be the explicit trademark, but trademark itself is essentially designed to be a bit fuzzy. Its purpose is to prevent fraud by confusing customers. In many cases (counterfeit goods) it is both the customer and the holder of the trademark who are harmed. "Pac-Something" used in the context of a video game is likely close enough that a court would uphold the violation, much less a video game about eating things in a maze while avoiding enemies, and much, much less about a yellow, puck-shaped thing eating dots and pills while being chased by ghosts.


The author is a tool and a moron for believing he has the right to profit from such wanton disregard for copyright and trademark and for his merry riding of coat-tails. Nothing is wrong with making a tribute to, or refining gameplay, but this is outright plagiarism.

Advice to the author -- Settle up and at least come up with some original artwork and environments. The look and feel of Pacman is *not* yours to profit from (whether in real money, reputation or pride). Better yet, have an original thought. A good one. Then make it happen. Clearly you are not incompetent, at least on the programming front, so no excuses.


Sincerly,

--A Real Indie Game Developer

You missed the point, poor developer

[Anonymous Coward]

The point is to make you stop making programs all together, this is what DMCA is for. To protect big corporation's income by giving them monopoly on releasing programs. The same goes for artists, if you want to make music, photographs or paint and release your works to the world the DMCA is there to stop you doing so.

The design of the law is to make it possible for anyone with a large legal department to stop anyone without from outputting the fruits of their label or, god forbid, profit from it (Even if the profits only cover some of the actual costs of producing the material). This is done, exactly as you experience it, by a large corporation making a simple claim "We do not like this" and "it" is them removed without any argument. So the large corporations can keep their monopolies on releasing software, selling music, photos etc.

You will find however that you have no power the other way. If Namco decides to blatantly steal (directly copy) your game and release it under their own name, you have little or no power to stop them doing so, the DMCA does not protect your work from theft only if you have a big legal department does it have any use.

Mistakes

[Anonymous Coward]

"It could be that the purpose of your life is only to serve as a warning to others."

http://despair.com/mis24x30prin.html