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A friend and I were wanting to create a Pokemon battle simulator in our mobile development class as our final project but are worried whether or not it would be permissible under "Fair Use" for educational purposes. We have no plans on doing anything with the game after the class and our presentation of the app, we just wanted to try to clone some very basic parts of it onto Android.

Edit: I'm located in the US.

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    \$\begingroup\$ Possible duplicate: gamedev.stackexchange.com/questions/23047/… \$\endgroup\$ – MichaelHouse Nov 17 '15 at 17:40
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    \$\begingroup\$ Relevant question on law stackexchange: Use material without permission for educational purposes \$\endgroup\$ – Philipp Nov 17 '15 at 18:19
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    \$\begingroup\$ Is this really an educational game, or just a game made for a class assignment? "Educational game" means (to me at least) a game that teaches to players. \$\endgroup\$ – jhocking Nov 17 '15 at 21:03
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    \$\begingroup\$ For your very specific purpose, this is the worst case scenario. The people who created the assets you want to use, hunt you down because they've heard that somebody in your class (out of millions of classes in the world) used their assets in a final school project. Needless to say, they only heard about this after the assignment has been turned in. They then hire lawyers to get you to cease and desist using their assets in your final school project. You don't need the assets any more, so you agree and no longer use them in your school project, which has already long since received a grade. \$\endgroup\$ – Dunk Nov 17 '15 at 21:53
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    \$\begingroup\$ I agree with jhocking, you should change "educational game" to "class assignment" in the title. "educational game" is a specific genre of game. If this "educational game" were to be created with commercial purposes in mind or if the use could impact the creator's commercial purposes then using the assets would certainly be a much bigger issue. \$\endgroup\$ – Dunk Nov 17 '15 at 21:58
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Users of this site are mainly game developers, not lawyers, so we're not able to give you legal advice.

However, I have been told that "Fair Use is a defense," not a classification. You don't get to label your creation "fair use" - rather, if an IP holder tries to sue you, you can try to claim fair use as a defense. That still means going to court most likely, which is probably something you don't want to risk.

Consider using game content that's offered freely under a permissive licence, like what you can find at opengameart.org or game-icons.net. That way you can be confident you're in the clear, and your game project will look more original as a bonus. :)

And if it's for a school project, your instructors will probably appreciate you using content with appropriate permission - since using other people's assets without permission is not typically a practice that schools want to teach or reward. By creating or seeking out content you have permission to use, you're demonstrating resourcefulness and a respect for fellow creators.

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  • \$\begingroup\$ To assist with your response, I was recently informed by my Computer Science Department Chair that, as a faculty member of the institution, they were legally allowed to replicate copyright works and materials in bits and pieces for redistribution so long as the files are 1) kept behind a password (protected from public access somehow) and 2) for students. However, as an aside, Copyright also allows you to create backups of the works for personal use. To re-use the assets/code all that should be required is to cite where you retrieved your code. We must cite StackOverflow code there. \$\endgroup\$ – Cole Busby Nov 19 '15 at 14:49
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Considering that there is a tag in this site named "licensing" and another named "copyright", I understand you bringing up such question to here before thinking of hiring a lawyer. But as the other two answers have already stressed, it's important to have it clear that most people here are probably not well equipped to give you the accurate technical answer you are looking for.

That said, if I understood your question correctly, you are thinking of using Pokemon characters for a school project. So, in similar situations when I was at university, it was frequent that people asked their institutions for counseling on that kind of matters. That is the first thing you should do. Educational institutions often have people with specific expertise on the specific law details related to the educational world - for instance copyright for educational uses and fair use (see more about fair use here, besides reading the basic wikipedia description).

In fact, there are often flexibilities when the use is purely educational - i.e. presenting a project in a class. However, the two important details are the meaning of what is "educational purpose" and whether you plan to take assets directly from the original source. For instance, posting online a learning game project, made for learning purposes, but which uses trademarked assets, not only is known to be a problem, but Nintendo has already fought that battle and took down a fan-made non-profit learning project: http://ca.ign.com/articles/2015/03/31/nintendo-takes-down-super-mario-64-hd-fan-project

But again, you should think of asking you own institution - specially because laws vary by country. Besides, maybe that is a fairly good question for https://law.stackexchange.com/. A similar question was already asked there, but from a Denmark-based poster and didn't got answers due to being non-specific. Maybe you can try it with further details there: https://law.stackexchange.com/questions/5226/use-material-without-permission-for-educational-purposes

Lastly, in case you feel unsure or get negative answers by your institution, what you can always do is try to simulate the combat system from Pokemon games but with your own characters and present it as such. It means, you can explain that you are going to present an application of the ideas behind how you understand the combat system and, for that, you are going to illustrate the problem using you own "creatures".

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It's quite simple: If you do not hold copyright to a work, you are not allowed to reproduce it. Since using it in class would be reproduction, you are not allowed to do it under US copyright law.

The one exception is "fair use" (well, there are others, but if they applied you'd probably know about it). It is very clearly defined and there is a plethora of court cases covering specific instances. You should peruse this information and decide for yourself (better yet, ask a lawyer) whether your work is fair use or not. We cannot decide for you, and even if we wanted to, we are not supposed to give legal advice on this site.

That said, your case does not sound like fair use. Speaking very broadly, fair use exists so that you can't abuse copyright to stop people from talking about your work - it is not a magic loophole that lets you ignore copyright whenever you want simply because you are doing it for "educational purposes". Yes, copyright holders can prevent you from using their work, even if you are not deriving any income - perhaps they are worried you will hurt their image, or that you will cause them to lose the copyright, or they think they can force you to pay for it - the reason is irrelevant, the point is that the law gives them the right. If this was not the case, every infringer would start claiming they are somehow doing it for educational purposes and completely sidestep the spirit of copyright law (in fact, back in the day software pirates used to claim their cracks were for "educational purposes only" - I don't believe that worked too well, since the practice hasn't persisted, while the lawsuits have).

Incidentally, Wikipedia has a section on common misconceptions which include:

"Any use that seems fair is fair use."

"Noncommercial use is always fair."

Note that both statements are false.

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tl;dr: No, it's not.

Reproducing content you don't have a license for to reproduce is not allowed by copyright law. Fair use might save your bacon here. You probably don't want to rely on that. Do you really want to take the risk to be sued where you can try to defend your work as transformative and/or educational, and have the judge/jury determine whether the portion of the work you used stands in proportion to how transformative your use of the copyrighted material is? I wouldn't want to bet $50 on the outcome of that case. Would you want to bet statutory damages of up to $30.000,- per work on it?

Aside from copyright law, you would also tangle with trademark law. The name Pokemon, and (many of) the individual Pokemon are trademarks. Your use of those trademarks may also fall faul of trademark infringement.

Nintendo has been known to actively pursue their copyright and trademarks. See for example http://arstechnica.com/tech-policy/2015/08/pokemons-copyright-lawyers-wipe-out-themed-pax-pre-party/

Summing up:

  • You don't have a license for this use, so in principle you're not allowed to do this
  • You might be able to get away with a fair use defense if you're sued
  • Apart from possibly violating copyright law, you may also be violating trademark law.
  • Nintendo is known to actively litigate against this kind of use
  • You probably don't want to be in this situation at all
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