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Avoiding DMCA Woes As an Indy Game Developer?

Posted by timothy on from the jealously-guarded dept.

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?"

72 of 494 comments (clear)

  1. Try having an original idea by Animats · · Score: 4, Insightful

    "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.

    1. Re:Try having an original idea by Anonymous Coward · · Score: 3, Informative

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

    2. Re:Try having an original idea by hedwards · · Score: 4, Insightful

      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.

    3. Re:Try having an original idea by Anonymous Coward · · Score: 5, Funny

      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?

    4. Re:Try having an original idea by thue · · Score: 3, Insightful

      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

    5. Re:Try having an original idea by moortak · · Score: 2, Informative

      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.

      --
      Xavier Rabourdin for president 2012
    6. Re:Try having an original idea by camperslo · · Score: 2

      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.

    7. Re:Try having an original idea by KDR_11k · · Score: 4, Informative

      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.

      --
      Justice is the sheep getting arrested while an impartial judge declares the vote void.
    8. Re:Try having an original idea by Anonymous Coward · · Score: 2, Funny

      Maybe he used a clean room design.

    9. Re:Try having an original idea by Xest · · Score: 5, Informative

      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.

    10. Re:Try having an original idea by Surt · · Score: 2

      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.

      --
      "Who is the Journal of Quantum Physics going to believe?" --Stephen Hawking
    11. Re:Try having an original idea by fishexe · · Score: 3, Informative

      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.

      --
      "I don't care about the Constitution!" --Bill O'Reilly, November 17, 2009
    12. Re:Try having an original idea by Lunix+Nutcase · · Score: 4, Insightful

      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.

    13. Re:Try having an original idea by HungryHobo · · Score: 3, Informative

      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.

    14. Re:Try having an original idea by dbug78 · · Score: 3, Funny

      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.

    15. Re:Try having an original idea by bugi · · Score: 2

      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.

    16. Re:Try having an original idea by sribe · · Score: 2

      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.

    17. Re:Try having an original idea by hitnrunrambler · · Score: 2

      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
      |
      |

    18. Re:Try having an original idea by SnowDog74 · · Score: 2

      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.

    19. Re:Try having an original idea by TheoMurpse · · Score: 3, Interesting

      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.

  2. Nothing personal by deathguppie · · Score: 5, Insightful

    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.

    --
    once more into the breach
    1. Re:Nothing personal by brownerthanu · · Score: 2

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

    2. Re:Nothing personal by hedwards · · Score: 2

      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.,

    3. Re:Nothing personal by uglyduckling · · Score: 3

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

    4. Re:Nothing personal by goblin777 · · Score: 3, Interesting

      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.)

    5. Re:Nothing personal by Tharsman · · Score: 2

      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!

    6. Re:Nothing personal by Pharmboy · · Score: 4, Informative

      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.

      --
      Tequila: It's not just for breakfast anymore!
    7. Re:Nothing personal by SnowDog74 · · Score: 2

      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.

  3. Counter-DMCA notice by psergiu · · Score: 3, Insightful

    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/

    --
    1% APY, No fees, Online Bank https://captl1.co/2uIErYq Don't let your $$$ sit in a no-interest acct.
  4. As usual... by fuzzyfuzzyfungus · · Score: 2, Informative

    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.

  5. Clear case of copyright infringement by fair+use · · Score: 5, Insightful

    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.

    1. Re:Clear case of copyright infringement by blackraven14250 · · Score: 3, Insightful

      "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.

  6. Re:What relation does this have to the DMCA? by meerling · · Score: 2

    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.

  7. WANLs by wasabii · · Score: 2

    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.

  8. Not a lawyer... by gnasher719 · · Score: 3, Informative

    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.

  9. Do not wake the sleeping giant by SuperKendall · · Score: 3, Insightful

    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.

    --
    "There is more worth loving than we have strength to love." - Brian Jay Stanley
  10. Hiring an attorney may be cheaper than you think by Grond · · Score: 5, Informative

    (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.

  11. Re:Translation by wasabii · · Score: 2

    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.

  12. your statement is factually incorrect by Surt · · Score: 2

    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.

    --
    "Who is the Journal of Quantum Physics going to believe?" --Stephen Hawking
  13. trademark not copyright by nten · · Score: 4, Informative

    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.

    --
    refactor the law, its bloated, confusing and unmaintainable.
    1. Re:trademark not copyright by Xest · · Score: 5, Informative

      "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.

    2. Re:trademark not copyright by Anonymous+Brave+Guy · · Score: 4, Informative

      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.

      --
      If you disagree, post your argument. (-1, Overrated) isn't your personal censorship tool for views you don't like.
    3. Re:trademark not copyright by Anonymous Coward · · Score: 2, Informative

      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.

    4. Re:trademark not copyright by MattW · · Score: 4, Insightful

      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.)

    5. Re:trademark not copyright by NoSig · · Score: 2, Insightful

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

    6. Re:trademark not copyright by Yvanhoe · · Score: 2

      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.
      ...

      --
      The Wise adapts himself to the world. The Fool adapts the world to himself. Therefore, all progress depends on the Fool.
    7. Re:trademark not copyright by rworne · · Score: 2

      How about Minesweeper?

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

      --
      I tried every decent and legal way I could think of to resolve the issue w/the business before I rented the chicken suit
    8. Re:trademark not copyright by dgatwood · · Score: 3, Interesting

      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.

      --

      Check out my sci-fi/humor trilogy at PatriotsBooks.

    9. Re:trademark not copyright by Pharmboy · · Score: 2

      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.

      --
      Tequila: It's not just for breakfast anymore!
    10. Re:trademark not copyright by RobertM1968 · · Score: 4, Funny

      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?

      --
      StarTrekPhase2 - The Five Year Mission Continues!
    11. Re:trademark not copyright by Anonymous+Brave+Guy · · Score: 4, Funny

      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...

      --
      If you disagree, post your argument. (-1, Overrated) isn't your personal censorship tool for views you don't like.
    12. Re:trademark not copyright by RobertM1968 · · Score: 2

      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?)

      --
      StarTrekPhase2 - The Five Year Mission Continues!
    13. Re:trademark not copyright by vux984 · · Score: 2

      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.

    14. Re:trademark not copyright by Theaetetus · · Score: 2

      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.

    15. Re:trademark not copyright by Schnapple · · Score: 2

      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

      --

      Schnapple

  14. But...but corpra$hun'$ are teh €eevu£! by Hognoxious · · Score: 3, Insightful

    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.

    --
    Confucius say, "Find worm in apple - bad. Find half a worm - worse."
  15. Re:huh? by Surt · · Score: 2

    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.

    --
    "Who is the Journal of Quantum Physics going to believe?" --Stephen Hawking
  16. further information by androidstevep · · Score: 2

    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

    1. Re:further information by simon0411 · · Score: 2

      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.

    2. Re:further information by km_2_go · · Score: 2

      "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!

  17. Copyright Law. Read it. by EightBits · · Score: 2

    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.

  18. Re:But...but corpra$hun'$ are teh €eevu£ by Surt · · Score: 2

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

    --
    "Who is the Journal of Quantum Physics going to believe?" --Stephen Hawking
  19. Re:Hiring an attorney may be cheaper than you thin by ColdWetDog · · Score: 2

    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.

    --
    Faster! Faster! Faster would be better!
  20. Just look at the screen shot... by WPIDalamar · · Score: 4, Insightful

    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.

  21. Maybe the pac-man icon is protected by TM by roguegramma · · Score: 2

    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?

    --
    Hey don't blame me, IANAB
  22. WHAT DOES IS MATTER THAT IT'S A RIP-OFF? by gilgongo · · Score: 3, Insightful

    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.

    --
    "And the meaning of words; when they cease to function; when will it start worrying you?"
    1. Re:WHAT DOES IS MATTER THAT IT'S A RIP-OFF? by Urza9814 · · Score: 2

      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.

  23. Modern copyright law is STUPID by airfoobar · · Score: 2

    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!

    1. Re:Modern copyright law is STUPID by airfoobar · · Score: 2

      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.

  24. The best way to avoid problems. by Restil · · Score: 2

    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

    --
    Play with my webcams and lights here
  25. Re:Knee-jerking != making an informed argument by mwvdlee · · Score: 3, Interesting

    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.

    --
    Slashdot social media options: AIM, ICQ, Yahoo, Jabber and Mobile Text. Why no MySpace?
  26. Author got what he deserves. by ravyne · · Score: 2

    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