How To Judge Legal Risk When Making a Game Clone? 270
An anonymous reader writes "I'm an indie game developer making a clone of a rather obscure old game. Gameplay in my clone is very similar to the old game, and my clone even has a very similar name because I want to attract fans of the original. The original game has no trademark or software patent associated with it, and my clone isn't infringing on the original's copyright in any way (all the programming and artwork is original), but nevertheless I'm still worried about the possibility of running afoul of a look and feel lawsuit or something similar. How do I make sure I'm legally in the clear without hiring an expensive lawyer that my indie developer budget can't afford?"
Re:Laws have become horribly, horribly complex (Score:5, Informative)
Laws have become horribly, horribly complex. I'm not sure any of us can do that for anything we do.
This is very true. I've been reading a lot about law recently, because it's become pertinent to my everyday life. In this case, and ALL legal cases, the law is SUPER crazy complex. First you need to read up on rules governing this stuff, then laws, then amendments to those laws, then you have to read a bunch of court cases on the matter, and then you have to have the legal background to understand how all of those apply to your specific situation.
The summary author really only has one of two choices: a) pay a lawyer, or b) ignore the legal consequences and only deal with them if you get sued.
Very simply, that's the plain ugly truth hanging-all-out-there-naked version of every question of, "what should I do about law X, or law Y"... well, unless you're in Arizona. Then there's an option c) pay someone who is willing to do the research for you, even if they're not a lawyer, but understand their qualifications before trusting their evaluations. Outside of Arizona, no one can even give you any clues about your legal liability without running aground of questions of practicing law.
Re:The legal system is unfair (Score:3, Informative)
The product contains MySQL[tm] under GPL and Gemini. Gemini is statically linked to the MySQL code. This means that Gemini needs to be under GPL as well, but it is not.
Sounds high risk (Score:5, Informative)
In my (non-legal-professional) opinion, what you are doing sounds high risk -- you are consciously replicating their expressed work (the game) and even admittedly giving it a deliberately similar title. It sounds like there are some copyright issues -- some things about games can be copyright and others can't; your remake might be considered a "derivative work" however. If you did wheedle out of that complaint, it sounds like you could still potentially be sued for "passing off" as you have a deliberately similar product with a deliberately similar name.
I'd advise having a look at the legal history of Scrabulous. They remade a not-so-obscure game, got sued, won on some parts but lost on others, but are still trading (being sued is not necessarily game over).
Do your research (Score:5, Informative)
In the UK... (Score:2, Informative)
This article details legal proceedings in just such a case.
http://www.daledietrich.com/gaming/novas-pool-cue-game-mechanics-not-protectable-by-uk-copyright/ [daledietrich.com]
A choice quote by Lord Justice Jacob is
This is similar to the Lexulous (formerly Scrabulous) case, where the games makers were forced to make minor changes, including a rename, as it was too close a copy of Scrabble.
More details can be found at
http://en.wikipedia.org/wiki/Lexulous#Legal_and_copyright_issues [wikipedia.org]
Good luck with that. (Score:3, Informative)
How do I make sure I'm legally in the clear without hiring an expensive lawyer
Aren't "legally in the clear" and "hiring an expensive lawyer" the same thing now?
Re:They can only sue you for money that you have (Score:4, Informative)
They can only sue you for money that you have
Really. Hmmm... $1.92 million verdict against Jammie Thomas-Rasset
Exactly. You now understand the post perfectly. Set up a dirt poor shell corp, let them sue the corp for 100000 billion for all you care, let them take possession of the corporations coffee maker and its promotional tee shirt collection, and start over at a new shell company.
Make sure to at least talk to a "cheap" lawyer about becoming judgment proof and the phrase "piercing the corporate veil".
The overall gameplan is to make setting up a shell corp cheaper than suing the shell corp into non-existence all while somehow making a profit despite the profound lack of corporate capital.
Obviously, don't do something stupid like loan your personal money to the shell corporation, unless you want to lose that money (or can afford to lose it).
A couple of thoughts from a lawyer (Score:2, Informative)
I am a lawyer and practice primarily in software. I tried to read through this thread and responses - and as is typical here, at least for me, it is hard to separate the valuable insight from really really bad advice. I enjoy /. mainly for the comical signature lines most of the time.
First - no venture, no product or service, is risk free. There are ways to minimize the risk - and often small changes can make a big difference. The post you made here is itself possible evidence. By merely posting in a public area like this, and describing your intent, you have increased your risk.
Second - no software, and I mean none of it, is IP infringement free. Your objective should be to modify or avoid areas that increase risk, and then proceed.
Third - a common misconception in software development of related software is the idea that because you do not have the prior code, you are not making a derivative work. There are a number of copyright cases in other areas (they principally deal with "plots" in movies and books) that will apply to software development, because a game in the end is an interactive audiovisual work that is also a story that the player writes. So, you have to apply these older cases in the theater world to software. Those cases distinguish between going too far in plot duplication, from taking only what is known as "scenes a faire." That doctrine translates in English to "common element" or "building block." So, for example, copyright law will not prevent one author from using a common theme, element or building block gained from the knowledge of a past work. Otherwise, copyright would protect the idea - and copyright law cannot protect ideas.
So, you need to go see a lawyer, and show the lawyer the prior game. A good lawyer who knows copyright law can then tell you what elements are "building blocks" and which are core plot or thematic elements. In the cases, one component of this analysis is how well a character is developed. For example, "Lara Croft" was a very well developed game character. In the games she killed people and blew things up etc and had grand adventures. So, the idea of a woman in a game doing these things cannot be protected by the owner of the Lara Croft games. However, as a subsequent game character approaches expressive elements of Lara Croft's character . . . infringement is likely.
It is even more complex than this, though. Because assuming you can hurdle copyright law, now you need to deal with trademark law. In short . . . this is a complex issue and you do need to see a lawyer.
I have been engaged to both prevent, and to correct, errors made during software development. It is VASTLY less expensive to hire a lawyer and prevent errors. Once an error is made, the cost is astronomical to fix it. The last jury trial I did was a game development gone bad, and I represented the developer trying to get paid. We won and the jury gave us 100% . . . but since that time, I have devoted the last 15 years to doing only transactional software development law and licensing. Please find a lawyer and pay them for some advice. There are things you can do on the front end to really minimize the likelihood that the prior game owner will sue you.
A final thought - many people have suggested contacting the prior game owner. That is definitely something to consider IMO only if the advice is that your game is likely an infringement of the prior game. When development would be easier this way we advise this - but be prepared for negotiating a royalty deal. In most cases, a developer will simply "design around" the prior intellectual property and not seek permission. However, depending on the IP owner, sometimes permission is easy (for example, it is fairly easy to get permission from the estate of Jimi Hendrix; it is next near impossible to get it from the estate of Jim Morrison of the Doors - and figuring this out is rather easy - also, a lawyer can do this for you anonymously).
- mike oliver
Re:Laws have become horribly, horribly complex (Score:1, Informative)
From the U.S. Copyright Law.
http://www.copyright.gov/fls/fl108.html
"Copyright does not protect the idea for a game, its name or title, or the method or methods for playing it. Nor does copyright protect any idea, system, method, device, or trademark material involved in developing, merchandising, or playing a game. Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles. Copyright protects only the particular manner of an author’s expression in literary, artistic, or musical form."
Seriously, pay a decent Intellectual Property lawyer the cost of a one-hour visit and lay out your idea. You don't need to retain him.
Re:Laws have become horribly, horribly complex (Score:4, Informative)
OK, I'm curious. Why Arizona? I'm not from the USA, so maybe I'm missing something there...
Arizona does not place the restriction that only members of the bar can practice law. Thus, anyone can provide you with legal advice... you just need to realize yourself when you can't, or can rely upon the information.
Re:Laws have become horribly, horribly complex (Score:1, Informative)
Submitter here.
How could I get sued? The old game has no trademark on the name. I'd like to think my game (which I think is a much better take on the idea) is the spiritual successor to the old one. Whether or not it is made by the original author won't matter to the players, so it will make more sense to the players for the name to be similar because, after all, it's a similar game.
Re:Laws have become horribly, horribly complex (Score:3, Informative)