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this post was submitted on 25 Nov 2024
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Pretty sure that's not how copyright, and trademark works. I mean if he remade it with original characters etc... then he'd have a snowballs chance in hell, but far from a done deal (still would take enough money to have lawyers).
Why would it be a problem unless he was making money? People are allowed to write fanfic and make fan movies and whatnot. The line isn't crossed until money changes hands. Seems like a fan game would fall under that same kind of category
Money the imitator makes is not a particularly meaningful factor in any of the relevant laws, outside of poisoning the explicit exceptions for fair use that fan fiction isn't.
Fan fiction isn't legal (excluding scenarios where an author explicitly blesses it, which has happened). It's identical copyright infringement to use someone else's character in your own work whether you get paid for it or not. It's just generally not worth pursuing and alienating your most enthusiastic fans for most creators/companies, especially when there's no money involved.
This is completely wrong. A company is fully within their rights to issue you a cease and desist for fan works. Some companies, like Disney and Nintendo, do this all the time (though sometimes people are able to fly under the radar).
If you see a free fan game or fan work of anything it's completely at the mercy of the company that owns the IP. If it's not taken down it's either because the company is cool with it, not aware of it, or can't be bothered to deal with it.
EDIT: https://en.wikipedia.org/wiki/Legal_issues_with_fan_fiction
People really have no idea how overbearing IP laws are. Technically even recordings of people playing video games (let's plays and the like) could be infringing. This hasn't been extensively argued in court because most game companies don't want to deal with the PR backlash that forbidding let's plays would cause (in addition to the free advertising they get). Though, once upon a time that didn't stop Nintendo from using YouTube's copyright system to claim videos of their games.
https://www.ign.com/articles/2013/05/16/nintendo-enforces-copyright-on-youtube-lets-plays
https://www.slaw.ca/2024/02/07/lets-plays-a-copyright-conundrum/
Are you misreading "preparing" as literally any writing?Even that Wikipedia article goes into fair use. Let's plays are potential infringement because people make money from them. There's stuff like that one Switch emulator that got taken down a while back because it had a direct effect on Nintendo's ability to sell hardware. But there's also stuff like PokeMMO which has been allowed to persist because they don't actually distribute any Nintendo code and Nintendo isn't selling those games anymore.
What effect on the market can there be for a fan remaster of a 20 year old game that isn't for sale anymore? Hard to argue that doesn't fall under fair use.
"Prepare derivative works" means not just any writing, but literally anything creative. If you paint a picture of a character from a book, using specific details described in that book such as their appearance and name, you are creating a derivative work.
https://law.stackexchange.com/questions/78442/what-is-considered-a-derivative-work
Fair use carves out an exception for parody, criticism, discussion, and education. "Entertainment" or "because I like the series and these characters" are not one of those reasons. Fan fiction might qualify as parody though.
This is not how "the effect of the use upon the potential market for or the value of the copyrighted work" part of fair use works.
A company can create a work, sit on it for literally 100 years doing nothing with it and making not a single cent from it, then sue you for making a nonprofit fan work of it. Steamboat Willie is 95 years old and until just this year you could have been sued for drawing him. Note that, in the eyes of the law, Steamboat Willie is effectively a different character than Mickey Mouse.
Again, I cannot stress enough how it doesn't matter at all whether you are personally profiting from something or whether you are affecting a market. The word "potential" in that quote above is doing a lot of work:
A father in the UK wanted to put spiderman on the grave stone of his 4 year old son who loved the character. Disney said "no". Disney does not make tombstones. You are not eating into their profits by putting spiderman on a tombstone. And yet in the eyes of the law Disney has every right to stop you since they might decide to start up a tombstone business next week.
Nothing I have written here is legal advice.
EDIT: I am not a fan of any of this. I think you should be able to write nonprofit fanfiction without worrying that some corporation might sue you. I am on your side on this. But this is the reality we live in.
It really comes down to the purpose (relevant law):
As well as the following characteristics:
Painting a picture could very well fall under 3 (renders from descriptions in a book probably aren't "substantial") and 4 (a painting of a description is unlikely to diminish the original work). That said, if paintings already exist and yours looks substantially similar to those, it could violate the copyright of those paintings.
Fan fiction, however, directly competes w/ the original work and borrows more directly from existing works, so it would come down to how much it borrows. Writing something in the world of a book may be fine, whereas including specific characters from that world may not. It all comes down to the intended purpose and the characteristics listed above, as well as how well you can argue your case.
I don't think that's true. I'm guessing what happened is that Disney threatened a lawsuit and the father didn't want to fight it, even if he had a strong case. That said, I don't know UK law and how it relates to US patents, so maybe Disney has a stronger case there than they would in the US.
But yes, I agree with the general point here: be very careful with copyrighted works, especially if a big, litigious company owns it (e.g. Disney).
It's also only actually parody if you are using the material to make a commentary on the original work.
Someone like Weird Al gets explicit permission for all his works. (Though the extent that that's respect for the artists vs legal necessity may be debatable because he does tend to comment on the work he's imitating.)
Agreed. Especially since he built the engine from scratch if I remember correctly. I would think it'd be legal under fair use? But I've heard of so many fan games going under from cease and desists. Maybe they just don't want to pay the legal fees to fight it? Especially if they're not making a profit from it.
Fair use is a much more specific and narrow thing than most people think, and there's absolutely zero way this would be fair use. Not making money with it would definitely strengthen a fair use claim, but that's not the only factor. The other big one is whether it's transformative, and I can't see how remaking anything can be considered transformative.
For sure they might try to send a c&d, but it wouldn't have any legal standing. Whether you have the funds to fight frivolous bullshit like that is one thing, but you can't get a c&d in the first place if you never put your art out. Even then, all you'd have to do is stop distributing it yourself, but at least it'd be out there
Not a legal expert but from what I've read, the IP holders have the right to stop you in the event that you are "distributing". Simply put, the second it runs on PCs other than the creators, that is when it becomes a legal problem.
Again we are talking legal not moral or correct. The point is the second someone makes it available for download, the IP holders have the right to sue, and have a very high chance of winning. Really the only variable is whether the IP holders notice the distsribution, and whether they choose to pursue legal action.
That's why I think the creator might be hoping to get paid for his work if he can get the publisher to re release it.
He can't release it without being sued. But if it was leaked, he wouldn't be responsible. They can only sue the torrents' hosts and downloaders.