Legal Issues With Remakes

Question:

In a forum we are currently discussion the legality of game remakes in contrast to fan fiction which is kinda not illegal, but allowed in most countries. The reason for that discussion is that the creators of the settlers series (you may know it, RTS game) decided after the latest release of Settlers 5 to do a remake of their own game Settlers 2 (which had a more unique gameplay focused on economics than war instead of creating an AoEIII type of game -clone) with their current 3D engine to enhance the visuals as sweet candy for all the fans out there. Most users agreed that this decision is amazing, so we discussed this general topic. I searched google about more serious information than some users which talk about Lucas Arts which abandoned some users projects or else, but I didnt came too far. So.. I thought that you as a professional game developer know something more about that topic or perhaps you can discuss the on the gameproducer blog. That would be very nice, because its a strong discussion under indies as you may know.

This time the question was more like a topic of discussion, but I found an issue that I’ve had experience with.

Legal issues with remakes

Answer:
I’ve already mentioned that the secret game project is based on one popular board game. I approached the publisher of that game (using the 3-step program, twice actually. Worked both times) and a very clear answer from them.

They said: “Any attempt to copy the system of a game of ours is a breach of copyright. Any mention of either [designer's name] or [brand name] is a serious breach of registered trademarks and will be dealt with accordingly.” (in response to asking whether I could use their name in a press release).

Legally I’d say that their note about ‘attempt to copy of the system’ is not legally very easy to protect as we can see in games today. There are clone wars: developers copy each other’s ideas… and they are not easy to protect.

Now I have know quite clearly where I stand:

#1 – First of all, I am now 100% sure that it’s better to ask permission to use references, before using them. As we didn’t get the permission I have no interest to use it, and I’m sure our game will get the players it deserves. Without need to mention the board game.

#2 – To dodge the issue of ‘similar gameplay’ we will use different gameplay mechanics. Their game uses bit different battle system, we have different board, movement, theme etc. This is issue with remakes – I personally think that best way to avoid legal issues, is to make the gameplay something bit more original. If you are making a direct clone from some game (even if the game is very old) there are chances getting into legal problems, especially if you plan to sell your game.

10 thoughts on “Legal Issues With Remakes

  1. That might get you in trouble – but I recommend checking these things with a lawyer to be sure.

  2. But isn’t using some other company’s name in a press release [something like "Our game is some kind like Monopolly"] fit into the citation right? Many newspapers use other companies’ names without problem, so what’s the case here?

  3. @Anon: I’m not a lawyer… but I have been in the business with them. One of the games we developed used similar game mechanics as one other game. The lawyer said that there would be need to change some game play in order to make it legally okay. I’m not sure if I can make a game that plays exactly like Monopoly (like… have the same rules, game play system) and just skin it differently. But on the other hand, I wouldn’t do that anyway ;)

    Ken’s & Christian comments suggest to me that…

    …leave those brands & trademarks alone. Make your own brand. As Michael put it:
    “In all cases, a clone is not a good way for an independent game studio to get started.”

  4. @Christian: Your FIFA comparison isn’t quite accurate.

    Say you make a (free, non-commercial) follow-up to Lemmings. The average gamer could not tell you the name of the developer of any games they play. So if they see a Lemmings game that uses the name and all of the standard Lemmings “bits” they could easily believe it is an “official” game.

    Now if your follow-up is a complete piece of garbage, you’ve now tarnished the brand. This could cause real financial harm for the developer/publisher.

    If your follow-up is REALLY good, then you’re creating competition for the developer and you’re using their own property to do it! Again, this could cause financial harm.

  5. Game mechanics are not copyrightable. You can make a game that plays exactly like Monopoly, no problem.

    The appearance and words of the game are copyrightable. You cannot make an identical copy of Monopoly without coming under fire.

    So, copy the gameplay as closely as you want, but change all the names, words, appearance of the gameboard, and so on.

  6. I agree with everything you say, especially with the “In all cases, a clone is not a good way for an independent game studio to get started.” Your reasoning is just fine… this shows how people can approach the problem with different angles.

    I would only make one tiny note:

    “Having asked someone for ‘permission’ to create your derivative game constitutes just such a possible claim.”

    In my case, I was asking the permission to use the original game’s name in a press release, not permission to “copy their game”. I was suggesting a business deal. If I was afraid of legality of our game, I would consult a lawyer. I know our game – that uses the original as ‘inspiration’ – differs enough to be considered a clone.

    Thanks for comments.

  7. Michael Cordner

    All in the spirit of friendly debate. Though I agree with some of your points, my reasoning behind them is different.

    Copying somebody’s game idea 1:1, which may be possible legally, is not a good idea for a small or independent game developer. But let’s say, for the sake of example, that you decide to go ahead with a game project that’s essentially a re-skinning of a very recognisable existing game. You essentially have two possible scenarios:

    1) Contact the publisher of the original game, and ask their permission. I cannot think of a scenario in which the publisher will simply say ‘okay, fine with us, copy our game’. In most cases, they will say no, and restate that all ideas, images, mechanics and everything about the game is their copyright. At the very best, they may agree to allow you to proceed provided you agree to give them adequate payment in the form of royalties or other such agreements. If, at this point you decide to ignore them and proceed anyhow, you have now plainly stated to them that you are copying their game, and have alerted them to your intentions and product. This is essentially saying to them ‘please litigate’, and if your game gains enough of a profile, rest assured they will.

    2) Don’t contact the publisher, and release the game without ever mentioning the product you copied. Now this is a cheap move, and I’d never suggest doing it. However, as I have not handed the publisher a blank statement of intent, the publisher of the original game now has to go about proving their case. Given the nebulous nature of trying to copyright gameplay mechanics, there is very little chance of legal threat here, as the countless bejewelled and zuma clones can attest to. I doubt the creators of the first bejewelled clone went to Popcap and asked permission to clone their game.

    A straight clone of a well known idea is never anything but a money grab, and the less of them on the market the better off we’re going to be. But in either case, the more successful your clone game is, the more likely the chance becomes that the creators of the original game are going to have go at you. Even if you feel you are 100% legally in the right, can you, as a small game developer, afford the expense to have to prove it in a court in what is most likely to be a foreign (to you) location of their choosing?

    In all cases, a clone is not a good way for an independent game studio to get started.

    That being said, I’ll move on to the subject of games ‘inspired’ by others. There’s no doubt that any new game produced nowadays is going to contain elements already found in existing games. In fact, I’d say the best ideas are simple twists on existing concepts. This fact is not unique to games, and stands for every single artistic medium known to us.

    As much as we love games and free exchanges of ideas within the gaming community, we have to remember that we are in business first and foremost. If we do not protect our businesses, there is no funding for games, end of story. And in the business world, your labour of love is a simple commodity in a cold harsh place. If your game is a massive worldwide success and sells in the millions, I can guarantee that if anyone feels that the slightest, tiniest possibility of a claim to your millions exists, they will come after you. Having asked someone for ‘permission’ to create your derivative game constitutes just such a possible claim.

    I’m not advising you to be underhanded, or to rip off other people’s ideas, or to be afraid to talk about other games and be honest about your own inspirations. I’m just saying, be careful.

  8. @Michael: Where has honesty gone these days…? ;)

    (a) First of all, no – you are not putting yourself at risk by contacting the publisher your game is based… You put yourself in risk in the very moment you start cloning some popular game. Trying to hide somewhere is NOT a good tactic. If you are cloning or basing your game on someone elses game, and want to mention their names – then contact the people.

    I don’t recomment cloning, but I recommend getting ideas from different games. Get ideas, alter them, add some of your own stuff, use your own themes and graphics… there’s no legal risk in this. There are so many game mechanisms and gameplays in the world that it’s impossible for a game company to sue you because “they made FPS shooter first and now you are using similar gameplay: you shoot others!”. It’s most likely that the board gamers actually copied the idea from some other game… If your game is a remake from some old game that is trademarked… then I would seriously recommend contacting the owners of the trademark before getting into production.

    In my specific case we contacted the board game publisher in a means to offer them free publicity in exchange to use the name that has inspired us to create our game.

    To sum up:
    1) If you clone some game 1:1 (adding nothing new) then I would suggest you to contact the authors
    2) If you are basing your game on some other game (and adding your new ideas, changing gameplay, graphics etc.) then there’s no need to contact the original game publishers. Unless…
    3) …unless you also want to mention their name, like: “Our game is like World of Warcraft, but better” THEN you need to contact them and ASK for permission.

    I’m not a lawyer, but I use common sense. Trying to ride on someone else’s fame could legally work okay, but I think it’s not the best strategy. Indie culture demands for originality… let’s be original. And let’s be professional enough to respect other trademarks and let’s be ethic enough to boldly discuss our intentions if necessary.

  9. Michael Cordner

    I am not a lawyer but I deal with enough legal issues (i.e, liase with real lawyers)around my own game projects.

    Have you not put youself at risk by contacting the publishers of the game on which your project is based? Effectively, you have acknowledged to them (and left a paper trail) that you yourself believe there is enough overlap to potentially constitute a copyright infringement. If your game is enough of a success to attract their attention, (that is to say, they think they can extort a worthwhile amount money from you over it) they now have a fairly damning piece of evidence in which you openly admit that your game mechanics are derived from theirs.

  10. Yeah, thank you.

    Naturally I can understand the interests and intentions from the copyright owners. If a game sells well, there is clearly a huger fanbasis than with less popular games and if then no sequel follows or a game franchise is particularly thousands of people, the community naturally deserves for more. I could imagine that many hobby developers or -teams would have interest in making simply just for fun a follow-up of a game. There are enough talented people in storytelling and/or graphics, in order to produce a game equal to the quality of the franchise – although smaller in extent. That is an unbelievable mess above all, even when the follow-up or clone or whatever has NO commercial intentions. That would be like that, as if we begin a neighbourhood soccerleague (only in our neighbourhood, to clarify) and the FIFA would come and wants money for it, only because we would play football for fun and the price would be 5 boxes of beer. — Your project takes a completely different approach: You want to make money with. Since that I would never hesitate to take the side of the big copyright holders because they have the same intentions to pursue, like the company, for which I work.

    Cheers
    Christian