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?"
Laws have become horribly, horribly complex (Score:5, Insightful)
Laws have become horribly, horribly complex. I'm not sure any of us can do that for anything we do.
The real question: WOULD they sue? (Score:5, Insightful)
Risk it (Score:3, Insightful)
Go for it and don't worry. If you make money on the game and someone notices, you might need to share the profits. Given the description of the game, that might be fair in this context. On the other hand, if you don't make any money, no-one is going to bother you with anything other than a cease and desist. Either of these scenarios will make your game more popular. See Streisand effect for details.
You can't (Score:5, Insightful)
How do I make sure I'm legally in the clear without hiring an expensive lawyer that my indie developer budget can't afford?
You can't. The worst thing you can do is what you're doing; going to a bunch of random armchair lawyers on the Internet.
If you're that worried, get a lawyer or do a different project.
Change the name (Score:1, Insightful)
People will still find it, and if the game is any competent it should be a relevant reference on its wikipedia page (of the type "a similar modern game" rather than "NN set out to make a clone". It would also avoid any problems related to trademark.
IANAL, but it seems that "look and feel" lawsuits are very rare or there would be more relevant/recent examples.
Original game (Score:2, Insightful)
Do you know who owns the IP to the original game? Do they have a habit for litigating? Do they even know they have the IP or did they acquire it by buying distributor X that bought then bankrupt studio Y that got it from independent coder Z?
And is the original game Hardwar or X-com? Because in that case, keep programming, whatever happens ;-)
(Make sure you release the source before getting dragged off by some goons into a black helicopter though)
They can only sue you for money that you have (Score:5, Insightful)
So if you ever make any, spend some of it on an accountant(*) and get him to set up two companies: one incorporated in Elbonia that has all the assets, and a shell development company with all the liabilities. Don't contest any lawsuit, just smile, punt the shell company into bankruptcy, and set up another one.
This isn't meant to be flippant; it's a model that works just fine for Hollywood. Ask any creative type who's ever tried to get any money out of a studio.
(*) Accountants are much like lawyers, except that they're cheaper, and they can be harmed with conventional weapons.
So what you're saying is (Score:4, Insightful)
I am copying what they did as exactly as I can, though because I don't understand what "copyright" means, I think it has nothing to do with this. Meanwhile, I am using their name for the exact reasons that laws exist to prevent such a thing happening, but I don't think that matters either. Finally, I haven't even bothered to contact the people who made the game, because to me it's more important that I "don't get sued" than that I'm, you know, a decent human being or anything.
Stand on your own (Score:5, Insightful)
Get your own name. You can go fairly far in cloning gameplay - think how much one FPS or TBS or RTS or RPG looks like the other, but don't steal unique units, characters and storylines. And while I don't approve of astroturfing where you pretend to be a customer, you can generated buzz about it. Go into every forum you can find about the old game, say this game is inspired of it. Right now I'm playing Dragon Age, and boy are there many old chestnuts of dwarves and elves and warriors and rouges and mages and the whole storyline about a blight and an archdemon are hardly original. Go for the one-up, "if you liked [old game], you'll love [new game]". Right now you come of sounding like one of the cheap watch salesmen "same same but different".
Re:Assassinate the original owners (Score:3, Insightful)
But then their estate could sue
Let me present a third choice (Score:5, Insightful)
It takes being a bit cheeky, but you can also
c) contact the author/publisher of the old game and get (in writing) that they have no problems whatsoever with you releasing the clone.
If you're dealing with a company like Atari (who? yes, they still exist!) or anything Disney, you are probably out of luck. If you're dealing with a Scott Adams (of Pirate's adventure fame) type of person, there's probably no problem at all. As you say the game is rather obscure, so chances are they will have no problem with you releasing a remake, and they won't sue. Perhaps they can even benefit from your efforts, if you're willing to link to the original game!
Re:Risk it (Score:3, Insightful)
Re:Risk it (Score:4, Insightful)
This is entirely false and shows the problem with asking for legal advice from random strangers on the Internet. If a company feels that you're damaging their trademark, image, etc, they'll sue you for damages, even if you have never made a dime. And they can win money you don't have.
If you have a question for a lawyer and you can't afford one, stop what you're doing. It's that simple.
The OP says:
How do you know? Did you just type "obscure game" into the USPTO's web site? Or did you have someone who knows what they hell they're doing to a trademark and patent search. I suspect it's the former because the latter costs money, which you complained about not having, and can be done by an attorney who could also answer your questions.
The OP continues
And this is why you're in deep crap, you have a limited and incorrect idea of what copyright is.
Oh, and hey, you're not making an iPhone game are you? Because if you are, when you go to publish your game you'll see the checkboxes for all those other countries, so hey, why not publish them there too? Bigger audience, more money, right? Or at least bigger potential legal risk. Copyrights, trademarks, patents, and intellectual property law are different in different countries, and lately the US has been willing to cooperate with litigious foreigners.
Note that I'm blindly assuming you're in the US. That's because you left the all important "what jurisdiction I'm in" information off your question. Just another sign of your ignorance and why you really really need to find the money for a lawyer.
You don't... (Score:4, Insightful)
How do I make sure I'm legally in the clear without hiring an expensive lawyer that my indie developer budget can't afford?
How do I make sure I don't get pregnant while having sex every day without using any form of contraception?
(Obvious answer: you don't. If you want to make sure you're legally in the clear, you hire an expensive lawyer. If you don't want to hire an expensive lawyer, then you live with not being sure you're legally in the clear.)
Re:Laws have become horribly, horribly complex (Score:5, Insightful)
Gameplay in my clone is very similar to the old game
Pretty much all games have used and extended ideas from previous games, copied user interfaces, themes, etc. So I don't think you'd get into trouble making something similar (at least a token effort should be made to put some original styling to the game).
and my clone even has a very similar name
but I think this is the bit where the pants get sued off.
Re:Risk it (Score:3, Insightful)
If you have a question for a lawyer and you can't afford one, stop what you're doing.
In other words, everybody who isn't rich enough to see a lawyer should commit suicide because ultimately, everybody has questions. I hope this isn't what you meant.
Did you just type "obscure game" into the USPTO's web site?
If I type each of the companies that developed and published the game into the "Assignee Name" field and nothing on the list is relevant, is that enough?
And this is why you're in deep crap, you have a limited and incorrect idea of what copyright is.
Could you explain further? As far as I can tell given information published by the U.S. Copyright Office [copyright.gov] as well as the opinion in Capcom v. Data East, copyright doesn't apply to the rules of a game as such.
Just another sign of your ignorance and why you really really need to find the money for a lawyer.
Any idea how to raise this sort of capital?
Re:Laws have become horribly, horribly complex (Score:5, Insightful)
Re:Laws have become horribly, horribly complex (Score:2, Insightful)
Did all the companies writing FPS games contact ID for permission to make Doom/Quake clones? What about the various Civilization clones (FreeCiv, but also the commercial clone Call To Power)?
If you don't believe you're infringing, I fear the problem with this approach is that you're scoring an own goal by admitting you copied their work. And they have no reason to say yes, so chances are they'd say no.
It depends on what is meant by a "clone" of course - storylines and characters can be copied. But remember that simply ideas cannot (AFAIK, IANAL).
Re:The real question: WOULD they sue? (Score:5, Insightful)
This would land on the desk of a company lawyer, whose thought processes on the matter would be: "If I grant permission and something bad comes of this guy cloning the game, I'll get blamed for it. If I grant permission and this guy makes a lot of money cloning the game, I'll get blamed for the company not getting that money. If I don't grant permission, I can't get blamed for anything. Which do I choose?"
Re:Laws have become horribly, horribly complex (Score:5, Insightful)
Don't ask permission. When you're in front of the judge, they're going to pull out a file folder with your call transcript in it. They're going to argue that you KNEW you were infringing, when you asked permission you were TOLD NO, and you INFRINGED on their rights anyway. The judge will be impressed, and you will be ass-raped if you're lucky.
Don't ask any permission. Just do it and have a good lawyer ready. And don't talk to anybody who calls about infringement. Tell them to talk to your lawyer.
Re:Laws have become horribly, horribly complex (Score:3, Insightful)
Only one thing to say to that: http://xkcd.com/322/ [xkcd.com] .
Re:Risk it (Score:5, Insightful)
If you have a question for a lawyer and you can't afford one, stop what you're doing.
That has to be the saddest statement I've read in a long time.
Re:Risk it (Score:4, Insightful)
why waste money on a lawyer? do you have idea what it costs? why not mimic what the big guys do: check the obvious and if it isn't there, don't waste time going through every IP whore's portfolio.
given that you read slashdot, you should browse the home page and notice that MS just pulled office as it lost a patent suit. Any idea how much money MS has? how many lawyers are on their payroll? how ridiculous it is to expect someone to pay 10s of thousands of dollars for an in depth IP search across multiple markets? that is one heck of a brute force approach. I sure hope you aren't trying to run a small business that has anything to do with IP because I'd be worried as an investor that you are squandering money trying to turn over every stone rather than building a better product.
how about a creative approach? hire a lawyer to start a small corporation where he is the only investor and have that company publish the game. At that point, if he gets into trouble, he just loses the capital in the company. If he is smart and pays himself a salary as a hired employee, then (granted, his taxes get more complex) even with a lawsuit, he should have been able to drain enough of hte earnings out of the company in his salary to not be on the hook for his personal assets. A small business lawyer can do this for cheap (1k) and help him work through many of his questions quickly about how to separate the books properly. but it's sure a smarter idea than "hey lawyer guy, why don't you take this product and search every IP in every market and see if I'll run foul". oh, and while he is at it, I'm sure you are expecting him to get it right. we've seen how many well financed companies have no IP problems.
Re:Risk it (Score:3, Insightful)
If you have a question for a lawyer and you can't afford one, stop what you're doing.
In other words, everybody who isn't rich enough to see a lawyer should commit suicide because ultimately, everybody has questions. I hope this isn't what you meant.
Wow. If that is the logic you use in life, then perhaps that would be good advice for you.
But no, nobody here except you means that.
If you want legal advice, you get it from a lawyer. It's that simple.
If you aren't rich, there is no need for any mass suicides, it just means you can not afford the proper legal advice, and will be moving forward with potential risk of running up on the law or someone elses rights (Or perceived rights anyway)
As a car example, I can not afford to have a second car sitting around as a standby. No need to kill myself as you think. It just means I run the risk of being stranded without any car if my current only car breaks down.
This is a risk I accept, and I will deal with the consequences of that risk if and when they come up.
If you choose to not seek proper legal advice, just realize it is a risk you are taking, and might have to deal with. If that level of risk is acceptable to you, then there is no problems here.
Did you just type "obscure game" into the USPTO's web site?
If I type each of the companies that developed and published the game into the "Assignee Name" field and nothing on the list is relevant, is that enough?
God no!
As one example, the company you search for might have licensed software from another company, one you might not know about and definitely did not search for in your above example.
Just because the game company licensed it for distribution, does not mean you get those same rights.
It might not be software that was licensed, but a name, or a particular look and feel of part of the game.
Short of speaking with the original company, it's not entirely obvious what deals like this were made.
This is why copyright and patent layers are used and needed for this. Learning all the details of the laws quite literally takes a lifetime career in law study to get (And often times even that is not enough!)
And this is why you're in deep crap, you have a limited and incorrect idea of what copyright is.
Could you explain further? As far as I can tell given information published by the U.S. Copyright Office [copyright.gov] as well as the opinion in Capcom v. Data East, copyright doesn't apply to the rules of a game as such.
Rules of a game can not be copyrighted, however 'look and feel' is, as well as the name of the game.
Using a similar, even if unrelated, name will land you in trouble.
Remember not a year ago the online game Scrabulous based of Scrable? They used all their own artwork, only copying the rules. They were successfully sued by choosing a name they argued would purposely cause confusion and liken their software to scrable. This is not legal, there is plenty of case law to show this is the result that will come out of the court case, and the article submitter specifically said this was one thing they are doing.
Just another sign of your ignorance and why you really really need to find the money for a lawyer.
Any idea how to raise this sort of capital?
The rest of us get and work at what is called a 'day job' for that sort of thing.
Sorry if having one cuts into you doing the things you want to in a day, but I have the exact same complaint with work and do it none the less, as I like to have money with which to do the things I enjoy (Such as this)
Re:Laws have become horribly, horribly complex (Score:3, Insightful)
That's not "having" a lawyer. That's having a phone number. Having a lawyer implies he's doing some kind of work for you.
Re:They can only sue you for money that you have (Score:1, Insightful)
As for deliberately underfunding your corporation, see: Kinney Shoe Corp. v. Polan, 939 F.2d 209 (4th Cir. 1991). where the corporate veil was pierced and share holders found individually financially responsible for the miss-deeds of the corp.