Using trademark or famous game characters for free (related to collaboration)?

Question

Let's say, for example, I'm making an indie version of a Batman game using the signature DC character and my concept project of my own. It's like a fan base-project with some income earned. Then, added with some ads library, published in Google Play Store (via developer account) and leave a "disclaimer" note just in case.

Few days later, I got a hundred-thousand downloads with a lot of income I've earned. Some DC team notice this without permission even though it was a successful. Here's the catch: negotiate and agreed to split the earnings in order to support the project and became part of it without getting sued.

Can this work that way?

This method I believed is 50-50 and I need a confirmation if it is effective that way like what I've mentioned above example of this situation.

Answer 1

Another reason why this is not a good plan: think about the people.

I doubt you have a lot of funds to make that game, and as @Philipp already pointed out, to make a game that DC would be ready to put their logo on, you need a lot of money. A lot of that money goes to paying people to make the game (salaries).

To make a game of that scale, you'll need people. Where will you find them? If you have no money, will you be able to convince developers, artists, support people, marketing people, managers, etc. that your plan is going to work, and that all the time that they spend making the game (one year and more of hard work) will be paid by DC a couple of days after the game launches? And if you manage to convince some, and your plan doesn't work and you get poorer than before, no one knows what they'll think about you.

If your plan is to borrow money to pay the salaries, you'll have to convince some investors. And I'm not sure you'll find any serious investor ready to get on with that plan.

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If you want to make a deal with a bigger company and work on license games, I suggest you create your own game studio, make a few games with your own IP, get noticed for your skills, then bigger entertainment companies will know that you can make games, and it will be easier to make deals with some of them.

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P.S.

Keep in mind that these companies want to make money, so working with them can be very hard.

Answer 2

While it is theoretically possible to end up with such an agreement (they sue and you negotiate this as a settlement), you should not bet on it.

1. You obviously violated their copyright and their trademark. Why would they settle for a 50% split when they can sue for 100%, and then possibly damages and legal fees (beyond what you already have to pay for your own legal fees)? And there is not much you can do to defend your point, because they have a legal department stuffed with IP rights specialists and you don't (there is no right to a free attorney in a civil lawsuit). You have literally nothing you can offer them. They got you in a corner. A best deal you can realistically hope for is that they offer to buy the game rights from you for one symbolic dollar in exchange for covering your legal fees.

2. They have to make an example out of you. When they let you get away with that, others will too. When a company doesn't defend their trademark, they risk losing it. That's why most companies have a zero tolerance policy when it comes to trademark violations. Especially when it is about an immortal cash cow like the Batman character.

3. You just assume your game will be a huge success. But you can not bet on that. Most indie games thrown into the play store barely break even. When you don't have a million dollar budget and a team of experienced industry veterans at hand, it is extremely unlikely that you will live up to the standards of quality and success the DC Comics executives expect from one of their most valuable brands.

And all of that is not just theoretical. The list of fan projects smashed by the legal hammer is endless. Most projects which look slightly more ambitious than "school kid discovered Game Maker" don't even make it to release.

When you want to create a game based on someone's intellectual property, negotiate and sign a license deal before you start sinking serious work and money into the project. That's likely what happened in the Abe's Oddysee remake and what usually happens with any other game based on a license.

Looking at who DC Comics is working with usually, there is little chance that they would give the Batman license to a newcomer. But there are companies which are more cooperative. Games Workshop, for example, seems to sell their licenses to almost everyone nowadays (Even if you just want to make a chess game).

Answer 3

Absolutely not. Do not do this.

A general rule of thumb, is that you should not use or reference any property that you do not exclusively own, e.g. you should not even be saying "This game is like a better Tetris!" or "This is a Super Mario Style Game!"

The reason being, say your project that is about the DC character Batman is a complete failure, and it is generally universally hated... Do you think DC would be happy to find out they lost fans, whose first experience with DC, was your hated game? Equally it doesn't have to be about a first experience, just a consistent one.

You might wonder, "I've seen games pop up online before using copyrighted materials, and they seem to be fine." - Well the answer to this is that they will either have been so unpopular that they have gone unnoticed, or the big difference (and this is the big one) is that the game did not make any money whatsoever.

If you do this, you will have no leg to stand on, and all your money can be taken at any time, you can be sued, and your game can be removed. Do not risk this if you consider yourself a respectable game developer.

Equally (I am only mentioning this to preemptively counter anyone who argues the following defence); consider that when someone suggests a particular copyright claim is protected by "Fair Use" - Fair Use is a court defence. Not a protection from a summon. Meaning that whether it does or does not come under fair use (this example 99% does not), you will still have to appear in court, pay legal fees, and most importantly spend inordinate amounts of time preparing and attending a case, that ultimately you will lose.