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I've done an indie remake of an old arcade game from 1980.

Can I use its name? I thought copyright expired after 25 years but I could be wrong, hence this question.

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Seems I post this comment about three times a week, but.. Definitely ask a qualified attorney in your area before making assumptions about what is or isn't illegal. It's really not worth risking fines and/or jail time for violating the local IP laws in your area on the basis of any answers you get here or anywhere else on the internet. – Trevor Powell Jul 16 '11 at 13:55
-1 What for? Make a cool game on your own. – Maik Semder Jul 16 '11 at 16:23
@Maik tell that to OpenTTD? – Nick T Jul 16 '11 at 16:34
Also important to note is that a copyright is quite different from a trademark. In North America, copyright lasts for some period of time after the author's death (possibly 50 years), but a trademark, which has to be renewed, can last as long as renewal fees are paid (and the mark isn't struck down for some reason such as through litigation, getting adopted as a natural part of the language, etc.). – Randolf Richardson Jul 16 '11 at 17:04
@trevor agreed but this one is so obviously "uh, no, don't do that" – Jeff Atwood Jul 16 '11 at 18:23
up vote 15 down vote accepted

You're asking about more than the name, if you re-made the actual game (rhyme unintended). In the US, copyright has been constantly extended, and is now the author's life + 75 years - so no, the game is still copyrighted.

And the name is covered by trademark, not copyright (which also would not have expired - I don't think it does expire). If your name is identical, then yes it's a trademark violation. If it's similar, then it depends - some companies are more litigious than others (See Edge Games, who sued anyone that had a game with the word edge in it, like "Mirror's Edge" by EA.

Activision had to license the name Civilization from Avalon Hill, maker of a board game with the same name.

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Trademarks last for as long as the trade name is in any sort of commercial use or planned future use. Copyright will cover the game's logo, and that copyright will still be in effect. – Trevor Powell Jul 16 '11 at 13:51
@Trevor Powell: Trademarks must be renewed as well (there are fees involved with this). "Planned future use" can be problematic because marks not in use are usually much easier for another party to contest. You have the right idea though, so +1. – Randolf Richardson Jul 16 '11 at 18:29
Note that game clones are not a violation of copyright. Making a copy of a game executable violates copyright, as does using someone's source code without their permission, but game mechanics cannot be copyrighted. They might be patentable. – Gregory Avery-Weir Jul 17 '11 at 1:28
@Gregory: I would avoid blanket statements like that. "Sweat of the brow" is enough to establish copyright in some European jurisdictions, which easily covers things like damage tables. I am also not convinced that more abstract works like (a complete copy of) fighting game movesets would not be covered, as there's clear creativity/originality there. – user744 Jul 17 '11 at 22:33
@Joe: You're right. What I said is generally true in the US, but the boundary between copyrightable works and patentable methods is fuzzy. – Gregory Avery-Weir Jul 18 '11 at 13:30

The only safe way to do this is to buy or license the rights for the game from the current owner. This can be expensive and time-consuming. The rights holder might ask for a fixed fee plus royalties, and as an indie game developer, that's likely going to be more than you expect to earn.

On the other hand, if the original game was produced by a very small company or an individual, you can probably contact them and get permission to do the remake pretty easily.

If you do a remake of a classic game, the rights holder can sue you and has a reasonable chance of winning. Tetris Holding is renowned for this.

If you just use the name in an unrelated game whose name is not currently being used for any commercial purpose, the rights holder can still sue you to bankruptcy.

It's slightly safer if you are not selling the game, I think. More likely to avoid notice, and the potential fines might be smaller. But you're only safe if you get an agreement with the rights holder.

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