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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.

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marked as duplicate by Anko, Seth Battin, Josh Petrie Apr 20 at 15:26

This question has been asked before and already has an answer. If those answers do not fully address your question, please ask a new question.

    
Ocarina of Time 2D, good times :p –  Bart van Heukelom Jul 28 '10 at 20:18

5 Answers 5

up vote 19 down vote accepted

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.

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Yes, the art and name and such are protected, but the mechanics are not and may be cloned. –  Bart van Heukelom Jul 28 '10 at 20:19
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So the flash version of Portal is completely legal since it doesn't use any resources from the original game, just the name? –  Oxide May 12 '11 at 23:49
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@Omega: The Portal: The Flash Version is legal because Valve says so. Valve has a long history of allowing fan games and modifications, and don't often send out cease and desist orders for non-commerical activities. I'm not entirely sure if they bothered to seek permission ahead of time or not, but Valve is well aware of the game, and has chosen not to shut it down, and that is really all that matters. –  Kevin Cathcart Nov 2 '11 at 16:49
    
Of note is that there has been more than one fan project that was looked upon benevolently by the original studio... right up until the studio sold and the new owner shut down years of work without even blinking. –  Patrick Hughes Jun 19 '13 at 2:41

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.

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+1 thought I should mention parody/satire which could make you get away with quite a lot in some contries. –  Oskar Duveborn May 9 '11 at 8:31
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Just to be complete for those reading this: "art assets" also includes any sound samples the game uses. Even if it's a recording of a car engine on a busy intersection, that particular recording is copyrighted and you can't use it. But if you made your own recording at the same time in the same intersection, you're in the clear. (But be wary if there's a street musician playing, at least in Germany where I live, that musician has copyright, as does the composer of whatever is being played) –  uliwitness Mar 24 at 11:33

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.

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i may look like a fool saying this but, why not cite the sources via putting the credits on start-up or on the post/website/where the people download it.

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I don't recall the "citing credits" part of copyright law that makes it legal to use copywritten materials that way. –  Nicol Bolas Jun 19 '13 at 0:58
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Although copyright law varies in different countries, it's rarely true that simply "give credit" to the original author gets you immunity from legal repercussions. -1 because this answer is actively detrimental as a result. –  Josh Petrie Jun 19 '13 at 1:43

This is the answer I gave on Am I allowed to release a fan-made version of a Trading Card Game on a fansite?, which was marked as a duplicate of this one. I hope nobody minds if I re-post here as I think it mentions some points that haven't been raised here and summarizes a bit better:

I am not a lawyer, but as a software developer and occasional artist, I've investigated this a bit so I know what I can do to protect my work and also so I don't accidentally screw myself over. While it would help to know what country you're in, because different countries have different laws that may also affect you, I'll make an attempt at answering your question.

You'll likely run afoul of Copyright. The owner of Copyright over a certain work (and Copyright in most countries is implicit, and does not require it saying something is copyrighted explicitly) has full control over how and whether at all something may be distributed. This applies to any graphics in the game, any sounds. While it's OK in most countries to make a photocopy of something for personal use, and sometimes even pass it on to a friend, most courts will consider posting something on the internet (where it's publicly accessible) as redistribution. So unless all of this is in a closed, password-protected area, you shouldn't be doing this. It would be treated about the same as pirating software or movies.

Also, keep in mind that many countries have higher fines for commercial infractions. And in many countries (e.g. where I live in Germany) just having ads on your page or having a link to your company's (unrelated) store in the navigation will make it considered commercial (as you could be using it to draw customers there).

Names are usually covered under trademark law. So if anyone already uses that name, and it's not a generic term, you can not use that name. If they've registered the name as a trademark, they can cause even more damage more easily (but a trade mark doesn't have to be registered to let them sue you). So you can't use the others' name either. At most, you might get away with saying that your game is "in the style of" another game, but that's a risky proposition.

So in short: Don't do it. Just make placeholder graphics (or hire someone to do them), make up your own names. The rules are not protected, but even though you can draw your own graphics for a deck of regular French playing cards, the graphics of commercial decks being sold out there are copyrighted, unless they explicitly say otherwise or you can prove that the artist has been dead the requisite 70 years (or more if you're unfortunate enough to live in the US with its endless copyright term extensions).

Note: There are fan productions out there that don't adhere to these rules and get by fine. That usually is totally due to benevolence on the part of the Copyright owners, you can't expect this in every case. E.g. Anne Rice was known for a long time to go after fan fiction web sites asking them to take down stories.

Update: Here's a recent case where Nintendo is requesting a takedown of a fan-game, though apparently they actually took graphics and sounds from original games, so this is a much more clear-cut case than most fan-games: http://www.eurogamer.net/articles/2015-03-31-nintendo-issues-takedown-notice-for-super-mario-64-hd-project

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