Can I use a no longer protected by copyrights game's sprites?

Question

I've been looking around but couldn't really find anything conclusive. First of all, as the title says, in case a game's copyrights expire can I use its sprites for my own game and claim copyrights?

Secondly, how do I know a game's copyrights have expired? In my particular case I'm interested in this game's sprites, the website is entirely in Japanese and due to their sole use of images with text, I cannot translate it. Can't seem to find any information regarding its copyright anywhere.

Thanks for your time.

Answer 1

Disclaimer: This is not a legal advice site. I am not a lawyer. For a definitive legal advice, hire one.

[...] in case a game's copyrights expire can I use its sprites for my own game and claim copyrights?

As far as I know, copyright laws around the world protect content for so long that any digital game that has ever been created is still protected.

If you think the copyrights have expired "because the company who made it was shut down", think again: the company's IPs have probably been transferred to another company, or a bank that seized their assets. Unless the company has explicitly stated that they give up copyright and made their assets available to public domain, you can't assume the copyright has expired.

Also you have to keep in mind something: even if the game copyrights have expired, if the characters are still used somewhere else, they are probably trademarked, which would still prevent you from using the sprites of the characters.

Unlike copyrights, which do have dates of expiration, company trademarks are valid for as long as the company uses those trademarked items commercially. [ref]

So it's not just a question of "copyright expiration".

In my particular case I'm interested in this game's sprites [...]

In this case, even if the copyright has expired, since it's a Nintendo DS exclusive, I would guess that you still can't use the data, because it would imply that you use the software or the hardware in a way not authorized by the EULA.

Secondly, how do I know a game's copyrights have expired?

You ask the last copyright holder :) Depending on the company, however, you'll probably have to hire a layer to ask them, because their legal departments won't waste their time with non-layers. (From a webinar with a game-industry lawyer, companies like EA will ask you "Are you a lawyer?" as their first question. The source for this is here. The rest of the video is quite interesting.)

It does not cost you anything just to try and talk with them. Depending on the company (and your company) you could work a deal or something.

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Now, this is assuming that the copyright holder has not released their material to public domain.

I guess that if they said "We're done with the franchise, here are the assets, do what you want with it, good luck and have fun", you probably could use the sprites.

Answer 2

This is no legal advice. However: Copyright expires about 70 years after the death of the author (exact time frame depends on your country, it goes up to 95 years). For any computer stuff that is unlikely to be the case anytime soon.

So... you won't find sprites where the copyright expired.

You may find sprites where the license allows usage. That can be that the completely free-to-use ones like public domain or WPL, or slightly more restrictive ones like some flavours of the creative commons one.

In any case: read the license terms carefully! No license terms mean NO PERMISSION whatsoever. You'll have to ask in those cases. And asking doesn't hurt either in the cases where a license is stated explicitly as well. Authors usually can license their stuff however they see fit - and the conditions may vary depending on who asks and for what purpose.

Answer 3

The following is not legal advice. If you would like to verify the situation, you must speak with a lawyer who specializes in copyrights.

Short answer: Possibly yet not likely.

Long answer:

If a game is no longer under copyright, a person very well can use it how they want, HOWEVER Stories, characters, and the likeness of an individual can carry copyright for a far longer period of time than the original product.

The prime example everyone is Mickey Mouse. Mickey Mouse made an appearance in the early 1900's. After a great deal of time, Mickey was looking at hitting the public domain and out of copyright protection. Their lawyers had made a bill which was eventually made into law to extend copyright. There are however a few exceptions that can take this a step further.

Corporations are able to sue governments for unjustified laws that cause the corp to lose money without a justified reason. If a character belongs to a company, their more than likely going to fight tooth and nail to keep their character privately owned for financial reason, and to preserve their characters from being put in explicit or demeaning situations.

If you do end up using the character, and your game doesn't launch on a large scale, your possibly going to go under their radar if the company is still around. However if your game gets a decent level of success for the indie world, the company will likely want restitution. Try to stay original as people don't like knock offs, regardless of which country your in.

Answer 4

Several points to keep in mind:

1. Copyright is awarded automatically these days. While some countries let you register for Copyright and many companies apply a Copyright notice, to make litigation easier, all it takes for something to be copyrighted is to make it. (unless you're in one of the countries that didn't sign the Copyright treaty, like Eritrea or Iran)

2. Copyright usually ends 70 years after the death of its author (in some countries, longer, for some very old stuff that was awarded Copyright retroactively, a bit shorter). If something's Copyright says a number higher than 1947, it's unlikely that its copyright has expired already.

3. If there is no note that says that something is free to use explicitly, it is Copyrighted. Theoretically, an author can also verbally tell you "sure, use this as you wish", but as they so facetiously say "a verbal contract isn't worth the paper it's written on." How would you prove in court that they ever said that, if they forget and sue you? How would you know what rights they assumed you'd be exercising?

4. Copyright explicitly includes creating derivative works of the copyrighted work. As such, you can not make works based on someone else's and just modify it and claim it as your own.

   There are a limited number of circumstances where you can use copyrighted works you don't own: Some countries have "fair use" (mostly for press and quoting purposes), and there is also parody, but these are kind of hard to rely on, as each country defines their limits a bit differently. In any way, if you're making a game similar to an existing one, or a totally different game with the same graphics, chances are you aren't making a parody.

So in your particular case, it's pretty much impossible, as it's unlikely your game sprites are from a game that was made less than 10 years after the first computer was created.

NB - I am not a lawyer, this is not legal advice.