Under Development A business and legal resource for independent game developers

20Nov/09

Clone Games and Fan Games: Legal Issues

There are a few misconceptions in the indie development community concerning the definition and legality of clone games. Some take it as given that a legal clone can be a fan game including many of the same visual and sound elements as the original. Others believe that because some game companies don't enforce their IP rights against fan game developers all fan games must be legal. Some may even believe that a game is simple and general enough to not warrant IP protection. This entry is designed to dispel some of the confusion and inaccuracy surrounding clone games and fan games.

Let’s say you’re a huge fan of Zelda, you’re a programmer and competent indie developer, and you and your friends want to create a tribute game to the world of the Hylian race, Princess Zelda, Ganon, and, of course, Link. In your game you will likely create something akin to fan fiction as far as your storyline and script, and you want to implement the same characters in some way because you are, like most of us, somewhat attached to those icons. Obviously you want to use similar game rules and mechanics. Can you? Should you? What legal complications will arise, what risks are involved, and how can you avoid threats from the very entity to intend to honor?

Defining a “Clone”

According to Wiki a video game “clone” is a game that is “very similar” to or “heavily inspired” by another game. This is woefully vague from a legal perspective. A “legal” clone is one that does little more than implement unpatented game mechanics, rules, operations, and physics. Some “ideas” for games may also fall into the legal clone category for the simple reason that they are so common or vague that they no longer warrant copyright protection as unique expressions—for instance, a platformer or RPG with a male protagonist seeking a kidnapped princess is so common to the genre as to constitute scènes à faire under Copyright law.  On the other hand an illegal clone relies heavily on the creative content of a game—namely the trademarks and trade dress of a game product, as well as the unique audiovisual and scripted elements of that game. Note that game clones containing patented mechanics may also run afoul of intellectual property law.

Layers of Protection

Games aren’t all about code. Just because you wrote your clone or fan game from scratch does not guarantee that it is legal. The intellectual property contained in a video game is truly vast. For instance the copyrights alone may include (but are by no means limited to):

  • Audiovisual display
  • Sound recordings
  • Voice recordings
  • Script
  • Screenplay
  • Background drawings
  • Sprite drawings
  • Musical compositions
  • Source Code
  • Object Code

Furthermore you have trademark, trade dress and unfair competition claims in the original work to worry about, including:

  • Game name
  • Company name
  • Character names
  • Character appearance and clothing
  • The game’s look and feel
  • game packaging

And last but not least you may even have some random claims out of left field by game actors/SAG members, including:

  • Name and likeness
  • Defamation
  • Privacy rights

If you use any of this in your “clone” game, you may draw unwanted attention and create a legal risk for yourself. The Tetris Company has relied on several of the above-mentioned rights, including "look and feel" under both trademark and copyright law, to enforce IP rights against games that closely resemble its product. Furthermore the risk of legal action isn't limited to clones of video game products. Creating a video game clone of board games, card games, and the like could create just as many problems. One famous example is the suit brought by Hasbro against the developers of Scrabulous, a well-known Facebook application.

As far as programming and code goes, commonplace commands are exceptions to the general rule of copyright protection. This is notable only because the most frequent argument I’ll hear concerning a person’s clone or fan game is that the “code is different” or that they “created the game from scratch”. Unfortunately the law doesn’t really care and is not on your side here if you relied on or used any of the other elements noted above. Even if you create the images, sound recordings, etc. from scratch, if those same components are clearly derived or ripped off from the original game, all your hard work may mean absolutely nothing from a legal perspective.

Protecting your Clone/Fan Game

You have a few choices here:

1. Make a “legal” clone. Rely on unprotected game elements, mechanics and processes that are so common and prolific in the game industry as to no longer warrant protection, copyright, patent or otherwise. If you’re unsure whether your particular idea falls into that category, contact an attorney.

2. Ask permission. Yes, this does put you on the owner’s “radar”, but show some respect. If you’re making a clone or fan game, at least be sincere about it—obviously you enjoy the game, so show some respect to the game’s creators and publishers and inform them of what you want to do. If they say yes, you have carte blanche right to use whatever you’ve told them you wanted to use in your product. If they don’t respond, you have a good faith laches/waiver defense. In English this means that the company/publisher has waited, with knowledge of the fact that the infringement was going to happen, until you’d already put yourself past the point of no return as far as production and distribution, before acting. Generally this conduct is frowned upon by the Court and is therefore treated as a “waiver”; otherwise the Court will honor your laches defense—this is especially true if notice to the company came in the form of a request for permission.

If the company says no, you’ve probably chosen the wrong IP to clone.

3. Come up with your own game. This is probably the best approach. If another game has inspired you, that is a wonderful thing. Let that propel your own creativity and make something unique that is truly worth playing.

2Apr/08

A call for questions

Ok-- I'm getting to the point where I've provided a lot of general information, but unfortunately without more specific questions from readers there isn't much more "general ed" I can provide. This means I can do a few things.

1) Blog less, i.e. once a week, and cover a few more specific areas and contracts
2) Blog about things that are currently going on in the industry and provide legal analysis
3) Get questions from people and answer them here.

The first is tempting, and I probably will slow down on the daily blogging as work starts to pick up. The second will probably be filler. I would like to rely predominantly on the third, but that is obviously up to you guys.

So if you have questions you'd like answered, send me an e-mail and I will answer the question on this site.

Requirements/Question format:
1. Keep your questions fairly general. Specific legal advice is not only prohibitive (as in, it creates the problem of creating a client-attorney relationship and confidentiality issues) but it is also fairly unhelpful to anyone but you. If you do have specific questions, make a note in your subject heading that it's not for publication.
2. Try to ask questions that you think developers want to know the answer to. While I'm more than willing to answer questions about music and film as well, I'm planning on starting another blog down the road with a more general entertainment focus, and I'd hate to use up good content.
3. Don't ask questions about coding language/etc. outside of a legal (i.e. copyright or patent) context. I don't know the answer.
4. Make sure you read the Disclaimer on the side bar and the "about me" section, so you know who you're asking.

27Mar/08

The Game Rating System

Game ratings are usually a hot button issue. Although the Manhunt 2s of the world are few and far between, widely distributed games are subject to the rating processes in every country where they are released. This is a time consuming and sometimes burdensome process, and often requires game developers and publishers to change significant portions of their product just to ensure the widest possible distribution. In this entry, we'll discuss the rating systems for various countries.

There are some distinctions between North American standards of censorship and the standards set forth by other nations. As a result, while the pertinent content for almost all of the rating systems are similar, the weight given to individual content may differ from nation to nation. Therefore it may be necessary to consult a legal authority on the censorship standards of a particular region before submitting your project for an official rating in that region. This discussion is limited to European and English speaking rating systems. Because I am most familiar with the US rating system, my discussion may be a bit ESRB-centric. However, it is important to be aware of international ratings to ensure your game does not run afoul of local laws.

Due to the hot button nature of this topic, I'm making a point to keep this entry strictly informative. I neither endorse nor reject the systems in place to regulate game content, nor do I advocate any one particular system. While I would love to open the floor to discussion and speculation regarding the effects digital distribution will have on rating systems, this isn't the place. Therefore, if you would like to participate in such discussion, I recommend visiting the IGDA forums.

Ratings Generally

Most countries that distribute games maintain rating systems. In some countries the rating is optional, but in many locales the rating system is enforced by law. In the US ratings are determined by the ESRB and are not legally enforced. However, rating systems in the US are such an integral part of our consumer-driven democracy that many distributors and retailers require a rating before putting products on the shelf. In Australia and other countries where the rating systems are enforced by law, games MUST undergo classification or they cannot legally be distributed.

Getting a game rating in several countries is costly and typically only attempted by publishers or prodigally successful independent developers. However, developers interested in selling their product to game publishers should always consider where they want to distribute the game and what they must do to ensure the kind of distribution necessary to make a profit. Failure to consider this during the development process may create serious delays and problems in the release of your game.

As stated previously, there are some fairly universal content descriptions used by most rating systems that determine the game's rating:

  • Realistic sexual content or sexual simulation: The North American standard places a greater weight on this issue that almost every other rating system.
  • Realistic Violence, blood and gore: Many countries view the violence of video games as a serious problem. As a result, the distribution of violent games is regulated by law in several countries.
  • Gambling: Games that promote or provide interactive gambling are usually given a higher rating due the gambling laws that exist in many nations.
  • Discrimination: some systems such as PEGI classify acts of discrimination portrayed in video games as pertinent content for rating purposes.
  • Profanity: Rating boards typically consider the profanity content of a game, and the severity of the profanity used when judging game rating.

In North America: Entertainment Software Rating Board (ESRB)

The ERSB is self-regulatory. That means that the rating system used is not determined by any state or local government. However, it cannot honestly be claimed that there is no political influence in the rating process. Special interest groups, watchdog organizations, and politicians interested in appealing to those organizations often attempt to legislate or influence the ESRB. Fortunately, the First Amendment places some constraints on government interference with the free distribution of creative works. Because ESRB is fundamentally a US organization, it typically complies with US free speech standards.

To get a game rated, publishers must submit a detailed questionnaire that specifies the "pertinent content" that the game will contain. Submissions must also include a DVD or video containing all pertinent content that will influence the rating (i.e. sex, violence, drug use, profanity). The game then goes to the professional raters, who develop a baseline idea of how the game should be rated. Discussion ensues and the raters come up with a rating based on previously rated game precedent and the general rating criteria. They then submit the rating to the ESRB, who may review the rating to ensure consistency with other games and similar game ratings on the market. The ESRB submits an official rating certificate to the publisher, who can accept the rating or, in the alternative, change the game's content and resubmit for a new rating (which is roughly when the rating process goes from "somewhat expedient" to "time consuming"). Once the game is prepped for release, the pubs send a final version to ESRB for verification that the packaging and game complies with ESRB certification requirements. For more information, be sure to check the site.

Europe and Oceania: PEGI, BBFC, OFLA

The Pan European Game Information rating standard has been adopted by approximately 30 countries in Europe. Like the ESRB, PEGI is self-regulatory and voluntary. Publishers choose to submit their games for rating so that retailers will carry the product. In fact, PEGI is similar to ESRB in just about every way. Like the ESRB, PEGI requires publishers to fill out a questionnaire detailing relevant content that will influence the game's rating. However, this system differs drastically in that there is no board review—instead, an in-house coder for the publisher/developer inputs the answers to the questionnaire and the results of the rating based on the questionnaire are automatically generated.

The classification and rating systems for England, Australia, and New Zealand are governed by law. As a result, the regulation process is stricter than in those countries where the rating system is self-regulatory or optional. These rating systems are particularly strict with regard to violence in video games.

The ratings for each system is more fully explained through their websites. For more information, check:

Http://www.esrb.org

http://www.bbfc.co.uk

http://www.pegi.info

It's important to take notice of the costs and time associated with getting a game rated. It should be a part of your distribution process, even for online games sold through digital distribution that will not be release at retail. Obtaining the requisite certificates and licenses is key to ensuring that your game is legally permitted to be distributed, exhibited, and exploited wherever you choose to release it.