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]

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]

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

[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

[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

[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

[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

[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

[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.

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

[uglyduckling]

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

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

[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.

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/

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

[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.

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.

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.

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.

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 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

[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

[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

[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

[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...

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.

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.

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: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.