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

[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

[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

[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.

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

[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.

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.

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

[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...

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.