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Before proceeding on with the idea of developing a mobile game that involves superhero characters from both Marvel/DC Comics, I am taking a serious dip into looking into things from a legal point of view. As what I have observed so far that all the games of this genre are under the banner of warner bros. or some other concerning production company.

I need to know whether it is legal to use the names/images/weapons/sounds/themes or any other specific association of a given character in a game?

If not, then what is the right way of going about to make one? Should I need some sort of permission/license to make one?

What if the game developed is kept free? Will that give us a safe passage to walk on?

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2 Answers

up vote 7 down vote accepted

IANAL, and it would potentially be different in different countries, but some guidelines:

  1. Anything that references trademarked and/or copyrighted content (and everything is copyrighted at the moment of creation by its creator) should not be used without explicit permission from the trademark/copyright owner.
  2. When in doubt about trademark or copyright status, assume trademarks and copyright exist, see 1. on how to proceed.
  3. Commercial status of either the original or the derived work are irrelevant to this.
  4. Don't assume a "fair use" claim on your part will be valid. Such systems are far from universal in IP law and where they do exist can be interpreted to be extremely restrictive.
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I am from Pakistan, and so far the cookbook of piracy/infringement laws does not exist...(not that I am aware of any). Could someone possible take action if something like this was to happen? –  faizanjehangir Apr 29 '13 at 6:33
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It doesn't matter where you are from, it matters where you want to sell your game or distribute it. It may be "legal" in your country, but in others it most clearly won't be - and people may not want anything to do with distributing your game as a result. –  Tim Holt Apr 29 '13 at 6:41
    
@TimHolt well said..Ofcourse I will not be able to get someone to market or distribute it for me. Any work around this issue? Other than renaming the characters..? Or should I contact the respective owners of the characters themselves? –  faizanjehangir Apr 29 '13 at 6:45
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@faizanjehangir You comment overtook my answer, where I tried to answer the plagiarism issue. Just renaming the characters will normally not do. Why not invent your own, that can't be so hard. –  rioki Apr 29 '13 at 6:50
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to clarify Tim's first comment: I've been involved on the sidelines in an international piracy case involving the laws of at least 4 countries. Got so confusing the court gave up trying to untangle the mess and I think the hosting provider for the pirate was ordered blocked by all ISPs in that country instead. –  jwenting Apr 29 '13 at 8:34
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@jwenting Has a very valid point on restrictions of use. But you also asked about licensing and creation.

Any copyrighted work or trademark can be licensed, if the copyright owner agrees to. (He may have his own plan for a game or may think you will not build a quality game and devalue his brand.) As a default and especially in your case you need to go to the copyright holder. (the name after the ©)

In the case of music and movies there are royalty collection agencies. But these are only for so called "mechanical royalties", such as verbatim playback. So if you want music in your game, you can contact the your local royalty collection agency and they will license it to you for a reasonable fee. Note, specify where you want to license it, for example "for worldwide distribution", since they either may not be able to grant that license or apply different fees.

Also a word about fair use. In your case, fair use may apply if you make a comedy or satire of something. Here is a quick primer on the issue: Fair Use School But note that this only applies to copyright, not trademarks and most characters in comics are trademarked. But you can work around this by using funny alteration of the make, so Super Man it not ok to use, but Supper Man is... (Supper Man, the hero that feeds the homeless ^_^)

Finally a word about plagiarism. This is a difficult subject, since the comic books did copy many characters from each other; then again they had many legal fights too. Basically you can not make a super man clone, buy just swamping the names of things. So you can not have Ulta Man for the plant Zipton that exploded on his birth. You need to have a story, character and setting that is unique.

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Really helpful detailed insight over the propsed issue. What about the images/clothing and other accessories? Do they fall under that category? –  faizanjehangir Apr 29 '13 at 7:01
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Technically anything. The costume and the "logo" of the hero are normally also trademarked. Ever played Monkey Island™? Remember all those ™'s? That was not a joke, that was dead serious, they trademarked almost nay name in that game. –  rioki Apr 29 '13 at 7:07
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Additionally, anything that can be associated in context can be a trademark violation. In some cases just the colors are sufficient. Look at the super man knock of in Megamind, even though fair use applied (it's a comedy) they very clearly kept Metro Man unique in colors and style. –  rioki Apr 29 '13 at 7:11
    
So reinvention is the safe path to take in this battle royale of legal issues...or you can try getting Marvel or DC Comics to save your a** –  faizanjehangir Apr 29 '13 at 7:18
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