Attempting to make money gives the owner a bigger stick and more motivation to hit you with it…not making attempting to make money doesn’t mean you can’t get hit…really, really hard if they decided to. Have some cute children characters performing sexual acts is a fine example of another way to give them a bigger stick and more motivation to hit you.
Know what? I’ve been musing… Does a fangame or similar project… Actually classify as a Derivative Work? Because if it does… Well, it might not be as unprotected as previously surmised:
A quote from the Wikipedia article:
[quote]Even if a work is found to be an unauthorized derivative work, an alleged infringer can escape liability via the defense of fair use. For example, in Campbell v. Acuff-Rose Music, Inc., the Supreme Court found that although a parody of the song “Oh, Pretty Woman” by 2 Live Crew was an unauthorized derivative work, fair use was still available as a complete defense. This case marked the Supreme Court’s pointing to transformativeness as a major clue to application of the fair use defense to derivative works.
The defense of fair use has become very important in computer- and Internet-related works. Two 1992 Ninth Circuit decisions are illustrative.
In Lewis Galoob Toys, Inc. v. Nintendo of America, Inc.,[10] the appellate court held that it was a fair use for owners of copies of video games, such as Super Mario Bros., to use Galoob’s product the Game Genie to customize the difficulty or other characteristics of the game by granting a character more strength, speed, or endurance. Nintendo strongly opposed Galoob’s product, allegedly because it interfered with the maintenance of the “Nintendo Culture,” which Nintendo claimed was important to its marketing program.[11] The court held, among other things, that the fair use defense shielded Galoob’s conduct. The court said that “a party who distributes a copyrighted work cannot dictate how that work is to be enjoyed. Consumers may use … a Game Genie to enhance a Nintendo Game cartridge’s audiovisual display in such a way as to make the experience more enjoyable.”
In Sega Enterprises, Ltd. v. Accolade, Inc.,[12] the court excused Accolade from copyright infringement liability on fair use grounds. Nintendo and Sega produced video game consoles. Each stored the games in plastic cartridges that provided game data to the consoles. By way of analogy, the Sega hardware console’s “platform” differed from Nintendo’s, as a Macintosh platform differs from that of a PC. Hence, a video game cartridge that works on one system does not work on the other. Sega and Nintendo sought to “license” access to their hardware platforms, and each company developed software “locks” to keep out cartridges that did not have the proper “key.” Accolade sought a license from Sega for its key, but negotiations broke down over price. Accolade then decided to reverse engineer Sega’s lock and key system. To do so, it had to download (copy) all of the computer code from Sega’s product and disassemble it (translate it from machine code into human-readable assembly). Accolade succeeded and began to market new video games that it independently wrote, which were capable of being operated in Sega consoles. This led to copyright infringement litigation, in which Sega alleged that the downloading was improper copying (reproduction) of Sega’s code. The court held that Sega was trying to use the copyright in its computer code to maintain a monopoly over the sale of video games, to which it was not legally entitled. Accolade downloaded the computer code only to ascertain how the lock worked, so that it could make a key that would permit its games to work in Sega consoles. The court held that such a use was fair use: “We conclude that where disassembly is the only way to gain access to the ideas and functional elements embodied in a copyrighted computer program and where there is a legitimate reason for seeking such access, disassembly is a fair use of the copyrighted work, as a matter of law.”
[/quote]
It could be argued that fangames that drastically alter the content/gameplay (Or add their own) are transformative enough to warrant definition as a derivative work.
Then again, even if this argument could be made, small individuals with little funds wouldn’t be able to mount an effective legal defense against big corporations, so it might be a moot point to make.
As an aside, the whole concept of producers of a product not having the right to control how that product is used once bought… Wonder why aren’t these used for litigation in the current days of PSN/XBL/iOS/Steam/Origin/Battle.Net market control.
No problem, English isn’t my native language either. ;D
It’s derivative if you actually use their assets, yes. But in reality, it’s whatever a lawyer can convince a court, and the actual letter or spirit of the law very often has damn little to do with it.
And if you don’t have the funds to play the game…well, too bad for you. My question is: So the risk of getting hit is low and the risk of them hitting you hard is low…but why bother taking the risk at all? Low is quite different from zero.
Apologies for the thread Necromancy, but I stumbled upon something relevant to this thread, and didn’t think it warranted a new thread on the subject.
So as I’ve explained above, I’m working on a DooM-based fangame, and even went so far as to write to Zenimax/Bethesda/Id Software about it.
No news on my part, but investigating details about the DooM engine, I came across a project to develop a top-down JavaScript version of DooM (js-doom), which is quite similar to my project concept. When clicking on the link to the site, I came upon this:
[quote]Harvey Anderson
Mozilla Corporation
650 Castro Street, Suite 300
Mountain View, CA 94041
Email: dmcanotice@mozilla.com
Phone Number: 650-903-0800
Fax: 650-903-0875
Re: DOOM on browser available on Mozilla website - Cease and Desist Notice - DMCA Notice of Copyright Infringement
Dear Mr. Anderson:
In accordance with Mozilla’s copyright infringement policy, this is to notify you of activity occurring on the Mozilla site listed below which infringes on the exclusive intellectual property rights of Id Software LLC, a wholly owned subsidiary of ZeniMax Media Inc. The copyrighted work at issue is Id Software’s proprietary software game DOOM® (“DOOM”). The link below offers an unauthorized derivation or version of Id Software’s DOOM game.
DOOM is a registered trademark and the game assets are copyrighted material. Use of the mark DOOM and copyrighted assets without our authorization and consent, directly violates our trademark and copyright rights in and to such intellectual property. We hereby demand the immediate removal of all such links from your website and written assurance that you will prevent any further infringement of Id Software’s intellectual property rights. I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law. I swear, under penalty of perjury, that the information in this notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Sincerely,
Joshua Gillespie
Associate General Counsel
ZeniMax Media Inc.
1370 Piccard Dr., #120
Rockville, MD 20850
T: 301.948.2200
Email: jgillespie@zenimax.com
[/quote]
Now, I don’t know the details of how much said game took from Id Software’s original content, or if there were attempts at monetization. Only thing I found was that the game was getting some hype around the net, so maybe that’s why it got noticed.
Just thought it’d be interesting to add an example of what happens when the big boys get mad (Or, more precisely, when their lawyers get wind of potential infringements).
If you have to ask the question of if it infringes, you’re probably better off going to the drawing board.