Are references to other games considered an infringement of copyright?

Question

My team frequently reminisces about the games we grew up with in the 1990s, and we'd like to include references and Easter eggs that pay homage to this decade and that will invoke nostalgia or even make players smirk.

One example would be a character calling out another character: "Dude, why on Earth are you hiding in a stupid box?" (a reference to hiding in cardboard boxes from Metal Gear). Think of it as being similar to when the characters from Bad Company 2 teased the snowmobile level from Modern Warfare 2.

Would these sorts of references be considered copyright infringement? As far as I'm aware, this falls under parody and fair use, as it is neither used to capitalize on a specific game element (like basing our gameplay on people hiding inside cardboard boxes) nor does it directly reference a game character. To me, it seems more like paying homage to the companies making those games. Of course, when the time comes, we will consult with a lawyer and are willing to go as far as asking direct permission from the copyright owners.

But until then, I'd like to be informed on the topic.

Answer 1

It depends. You should consult a lawyer for each case to be sure (in particular since there are intellectual property laws beyond copyright that may or may not be involved, such as trademarks and - though it is unlikely - patents); I am not a lawyer and this is not legal advice.

If you have a character who sneaks around, and you have an Easter egg where that character hides in a cardboard box and somebody comments on it, that's fine. The concept of "using a cardboard box to hide" is not covered by copyright; you cannot copyright a concept.

If that character begins to bear a substantial similarity to any version of Solid Snake, then you're starting to get closer to the line, however. Parody and fair use can cover you here, but parody and fair use is surprisingly complicated and you will definitely want to involve a legal expert.

Copyright only covers works that have been put into a fixed and tangible form. This includes works of literature, musical composition and recordings of performance, recorded sound, architecture, and art (graphics, drawings, sculptures). But it doesn't include systems and processes and it doesn't prevent you from talking about or referring to the existence of a copy-written work. You just cannot use the work itself or anything derived from it.

(The above is only applicable to US copyright law; copyright law in other jurisdictions varies somewhat.)

See 17 U.S.C. § 102

Answer 2

No.

Concepts are not copyrighted.

If you use art from another game, that probably is copyrighted.

Given how many games actually intentionally copy previous games in very deliberate ways for the purpose of trying to sell well like the other games did, any humorous or nostalgic references should be far safer, as long as they aren't copying specific content.

Answer 3

There are 4 factors when bulding a defense of Fair Use to consider -

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

2. The nature of the copyrighted work;

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4. The effect of the use upon the potential market for or value of the copyrighted work

These four factors often play differently weighted roles from case to case,

See American Bar - Satire/Parody Fair Use

It would probably be really hard to prove damages from such "infringement".

The main idea behind copyright is to protect the vested interest of the copyright holder from losing value due to someone stealing the holder's work and passing it off as their own. Without a copyright law, the stealer could gain profit from the holder's work and the holder would have no legal recourse to gain back the lost value. When referencing other's work, you have to consider, does their work benefit from your perspective and provide mutual gain, or does your work benefit from the reference and hinder their's?

One example would be a character calling out another character: "Dude, why on Earth are you hiding in a stupid box?" (a reference to hiding in cardboard boxes from Metal Gear).

Consider the factors:
1 - purpose of this character is commercial in nature, as even if it's a small event in your game, everything about it would be a commercial for the game
2 - no actual work is being copied here, only a reference to an idea
3 - no amount is copied, again only an idea is used
4 - one could hardly claim that MGS series would be out any consumers due to a minor reference in your game

Now for extreme contrast suppose you had this example:

A character calling out to another character, who has a mullet and is smoking a cigarette while dressed in tactical sneaking gear, "Folid Flake, why on Earth are you hiding in a stupid box?"

Consider the factors:
1 - purpose of this character is commercial in nature, as even if it's a small event in your game, everything about it would be a commercial for the game
2 - the persona of Solid Snake is clearly captured in this work,
3 - the combination of the hair style, personality trait(smoking), similar appearance, and very close sounding name create a large portion of copied work,
4 - it is possible that some potential consumers of MGS thought your work was a legitimate MGS work, and those consumers only purchased your product because they thought it was Solid Snake

In the first example, it would probably be very easy to win the defense case of Fair Use due to each factor strongly favoring the defense. In the second example, the case could go either way, and depends on how strongly each factor was argued and how much it was shown to weigh into the argument. It's key to remember that copyright claims are 'reactive', so a copyright holder has to feel infringed upon to enact it. Therefore, the "grey area" cases are only an issue when actual damages are occurring.

In any case, an extreme example, like one where Solid Snake's persona was so accurately copied that you would think Konami/Kojima was credited but was not, is a clear violation.

Answer 4

If creating easter eggs and pop culture references to other media was copyright infringement, I doubt games that are filled with them like World of Warcraft (an entire zone dedicated to Indiana Jones), Sam & Max (an entire episode dedicated to spoofing MMOs) and many others would still have them.

In fact, if it's clear that you're making fun of them, and the reference isn't the schtick of the entire game, it likely falls under the parody clause of fair use. IANAL, so consult a lawyer.

However, I am going to give the related remark that pop culture references can and will be outdated quite fast, and can even make it cringeworthy. To give an example from a popular webcomic: Andrew Hussie's Homestuck had a major character use a computer that looks like Bill Cosby. Back in those days, that was just a goofy reference. Nowadays though, with Cosby being involved in sexual abuse scandals, it was somewhat cringeworthy to read how a teenage boy praises his machine.

In addition, you might run into a player that does not get the reference at all. MGS may have sold millions of copies and be quite known, but if you make a reference to a game that didn't sell as well, there's a good chance the player gets confused about it.

Now, I'm not saying you shouldn't put references into them. I'm just saying that your game should still make sense without them. References are a good way to add some flavor to areas that would otherwise be uninspired and bland. For example, if your game is an open world gangster game and you have a coffee table that would otherwise be empty, put a magazine on it with a cover dedicated to Devil's Column or something (as a reference to Saint's Row).

In short: you're generally fine with references, but don't go overboard with them, make them audience-appriopriate (don't go putting blow-up dolls in kiddie games) and be aware that they might be misunderstood or even cringeworthy if the wrong events happen.

Answer 5

this Will help even More not a copyright 1-Hyperdymention neptunia: refrence " hey look at those guys using martial art to break a car.. geez dont they have any thing better to do?" cuz its a parody 2-Skyrim: in a mountain u can find a Pick Axe called Great Notch Pick Axe. is not a copyright since its Paying respect for a real guy. 3- dont remember which game i heard this from but a character was mocking another character for having a spikes on his back like sonic and have some other superpower and said to him "oh i thought the only thing you can do is spin really fast and collect Rings" (lol) any those are examples for non copy rights references you can see more in youtube

by the way make your character pays condolences on other character from another game company (Like bow infront a tomb stone that hints its for whom (without writing the character name since name is copy right) which other company like to see stuff like this and might ends in them paying you with the same respect or more) Which is this what am doing now for my game its preferred to notice them in advanced if its the first time referencing them.

Your welcome