Slashdot Mirror
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?"
(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.
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.
"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.