Legal issues for a “fangame” of a commercial franchise?

Question

I've played around in the past of the 2D Flash fan-made version of the popular Valve game Portal. It has basically the exact same mechanics, but as a 2D side-view flash game.

Lately I've toyed around with creating a simplified flash version of some of my favorite franchises (such as Zelda, Mario, Splinter Cell, etc.). Of course, nothing is "stopping" me from just using the same mechanics and just changing the name to something not copyrighted.

I have witnessed projects that have tried to directly port a 3D game into a 2D simplified version, with the exact same plot and puzzles (Ocarina of Time in 2D comes to mind), and I have seen them being shut down. But I am not likely going to exactly duplicate any game...just borrow some of the source material and basic underlying mechanics.

For example, if I were to make a Zelda-influenced fan game, I would have items such as the Hookshot, Boomerang, and all other sorts of ones from the Gameboy Zeldas; just with a custom plot and dungeons. With likely the same mechanics.

What are the legal issues involved in this? I used to think it was a "Don't do this ever; it's a bad idea."

But then I've seen the Portal clone, and now I'm curious.

Answer 1

Have a read of this. Here are some quotes.

The original copyright holders have full legal justification to order a cease and desist upon fangame projects, as by definition, fangames are unauthorized infringing uses of copyrighted property.

Most companies that don't outwardly promote or challenge fangames have in the past exacted a de facto policy of non-involvement or neutrality, officially stating that their copyrighted material may not be used without permission, but refusing to prosecute fangamers for doing so, in much the same way as fanfiction is tolerated.

Answer 2

Fangames (or fanart) are really a gray area in copyright laws since that protects the "work" itself. Here is the dirty secret lawyers don't want you to know; characters cannot be copyrighted. Character portrayals can be protected by copyright, since that is actual work, which is what lawsuits specifically on copyright usually hinge on. If you are using someone else's actual art assets then that is a direct violation of copyright.

The closest anyone got by fully protecting a character portrayal was Disney company who managed to trademark Mickey Mouse's ears. Which is, as Tetrad mentioned, the reason why companies usually send out cease-and-desist on trademark issues. Using trademarked names of the game or game characters is an violation of trademark. The reason is that the trademark is rendered useless if the protected name is used regularly in daily speech or denote something different. This is why Google's lawyers have been so adamant about sending cease-and-desist letters telling people to stop "google" for stuff. Another well-known example of trademark under fire has been Xerox.

As far as I know gameplay mechanics could be patented by software patents (something you can ignore if you're not a US-resident). Patenting gameplay mechanics is ludicrous at this point because the gaming industry hinges on copying mechanics between each other.

The worst thing that could happen is the offended company sends you a cease-and-desist order, in which your response is to stop working and/or spreading your fan game.

Answer 3

Just because things exist doesn't mean that they aren't violating copyrights or trademarks. I'd recommend reading up on those two terms first and understanding them fully.

I'm not a lawyer, but from my understanding the breakdown basically goes like this:

Brand names, logos, etc. fall under trademarks. So if you call your fan game Sonic anything you can pretty much expect a cease-and-desist from Sega. Trademarks are funny things in that companies are practically required to defend them lest they end up losing them.

Things like individual graphics or other art assets, level design, etc. fall under copyright law. If you aren't the copyright holder, you don't have legal authority to distribute them without the permission of the copyright holder. However, things like overarching game design are not.

Then there are a few patents here and there. These aren't as common, but do exist. For example, I think the scoring mechanism in Tony Hawk Pro Skater 2 is patented.

There are some things that probably fall under both categories. I'm pretty sure an image of Mario can be seen as both a trademark of Nintendo, as well as a copyright of them.

So basically, don't do it. You can use game mechanics, and you can make "spiritual successors" all day long, but don't use the name of the game or any non-generic names of items used in the game, or any graphics/sounds/levels from the game.