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I would like to make a video game based on IP I do not own. I understand that there are many legal issues with this and it seems that most of the answers online are either “you can never do it” or “nobody will catch you”. I would like to know what is actually legal. For instance, I know I can’t sell it and it seems I likely can’t share it online. But if I build code for a fan game and play it myself or share it with friends, it feels to me like the equivalent of a child slapping Pikachu stickers on their personal copy of Candyland. Again, I’m not really interested in how likely or unlikely it is that I would receive a cease and desist. I’m just wondering if I would have the better argument in court.

feetwet
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Todd Mullen
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    You could wait until 70 years after the author has died ;-) – gerrit Feb 02 '24 at 07:38
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    The question whether private copies are legal hasn't been answered yet. – DonQuiKong Feb 02 '24 at 10:24
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    @DonQuiKong reread 17 USC 106 (1) & (2) – Trish Feb 02 '24 at 10:28
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    "build code for a fan game and play it myself or share it with friends[..] equivalent of a child slapping Pikachu stickers" does this mean that the question is "how can I legally make a video game that I will only play myself+friends and never share the code/assets?" might be worth clarifying the question as most readers will likely assume that making a video game involves some sort of distribution to an arbitrary audience (likely uncontrolled if free) – falsedot Feb 02 '24 at 14:22
  • @trish sorry, I meant it hasn't been answered in this stack exchange question/answer. My comment above is misleading. – DonQuiKong Feb 02 '24 at 17:36
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    Not a legal opinion, but worth noting that there is a very rich Sonic fan-game community coming out with new games all the time, and those people seem to get away with it: https://sonicfangameshq.com/forums/showcase/ . Of course Sega is less aggressive than e.g. Nintendo at protecting their IP. – twhitney Feb 02 '24 at 18:17
  • Are you selling the game or is it free? – DKNguyen Feb 02 '24 at 19:57
  • How fan-game-y do you want it? Do you care if it's like Palworld and stuff where it's highly referential but not using the exact stuff from the source work? – Malady Feb 03 '24 at 01:56
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    @DKNguyen: At least in the US, selling vs free is irrelevant, legally. It only affects how likely you are to get sued, and how much you get sued for, but it does affect legality at all. – Mooing Duck Feb 03 '24 at 05:28
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    @MooingDuck In the US, the "commercial nature" of use of copyrighted materials is a factor in fair use, and there is precedent protecting some private use that would otherwise infringe copyright, such as Sony Corp. of America v. Universal City Studios, Inc.. That said, I doubt a fan game with all original assets and writing would infringe copyright in the first place. – Vaelus Feb 03 '24 at 14:37

4 Answers4

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17 U.S. Code § 106 - Exclusive rights in copyrighted works

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1)to reproduce the copyrighted work in copies or phonorecords;

(2)to prepare derivative works based upon the copyrighted work;

(3)to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4)in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5)in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6)in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

The law above is the version, but other countries are very similar. By default, only the person owning the rights has the right to [allow to] copy the work or make derivative works. Fan games are pretty much always derivative.

Get a license.

The only way that is surefire to not get into trouble for making a fan product is to get a license for the use of the copyrighted material.

Some companies give (partial) licenses easily and freely, such as Wizards of the Coast offers with the OGL under the condition that you don't touch their "Corporate Identity" products such as Beholders or Displacer Beasts.

Other companies give licenses to projects retroactively by endorsing them. One example would be the Princes of Darkness mod for Crusader Kings III - which was easy because Paradox Entertainment gives a wide license to mod their game CK III and the rights to the World of Darkness are with Paradox.

Other copyright owners are litigious and shut down fan projects regularly. Nintendo has the nickname Nintendon't for a reason: they sue a lot to enforce their rights and their EULAs are super restrictive. Similarly, Disney is known to sue daycare facilities to have murals of their copyrighted characters removed based on copyright and trademark.

But... ?

...is an affirmative defense. If you have to explain to someone how your work is supposed to be Fair Use, you already are in trouble. Some projects are fair use, others aren't. Many cases are fair use, and many more aren't. If that goes to court, such cases are a gamble, unless your use is quintessential fair use. Few are, and court cases are expensive.

A license is meant to and does prevent the problem to have to defend in the first place.

Trish
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    Yes. It's such a straightforward answer that I'm always surprised it's not more intuitive. – bdb484 Feb 01 '24 at 23:27
  • I guess I’m just looking for some sort of definitive line that says that it is ok even for a child to draw a cartoon character, but it seems there is not one. – Todd Mullen Feb 01 '24 at 23:31
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    @ToddMullen you should ask that as a question – Dale M Feb 01 '24 at 23:48
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    @ToddMullen The simple act of just producing an IP protected character isn't straight up illegal, but making money off it is. Disney is notoriously litigious and have a CLO (Chief Legal Officer). If anyone sells anything remotely connected to the mouse on any channel, they'll get taken down very quickly. Almost no child draws a picture to sell it. – Nelson Feb 02 '24 at 07:02
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    @Nelson About the children, why ? Are they taken down very quickly too ? :D – Itération 122442 Feb 02 '24 at 08:57
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    @Nelson I believe that your answer is close to what I was expecting with my original question, but it seems there is disagreement. If I have no intention of selling my fan game or showing to anyone but a select few friends, there is no way that the IP owner could reasonably find out, but I’m wondering if I (or the theoretical child drawing the picture) would be in the right, legally. Would I have the better argument in court than the IP owner if I were sued? Admittedly, a more theoretical question since they could not reasonably find out about it. – Todd Mullen Feb 02 '24 at 10:16
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    @ToddMullen there is the legal situation, and there is the effective situation. In Germany, there is a saying: "Wo kein Kläger, da kein Richter" - "if there is nobody suing, there's no judge." While things might be within exceptions or legal, you can only be declared not infringing by a lawsuit. If nobody knows, there might be no lawsuit. But that is not secure. And inaction doesn't equal endorsement either. Only a license, which can take the form of official endorsement, prevents a lawsuit. – Trish Feb 02 '24 at 10:21
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    @ToddMullen Think about it this way: Disney owns Donald Duck (for the next few years). They can enforce their copyright and have in the past to force removal of murals after they found out - because they did not give a license. Similarly, Paradox Entertainment owns the World of Darkness, which includes Vampire the Dark Ages. They went the other way and after they found a fan mod, endorsed the project that turned one of their games (Crusader Kings III) into a Vampire the Dark Ages game. They gave a retroactive license to the project. AS such, the only way to be sure is to have license. – Trish Feb 02 '24 at 10:24
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    @ToddMullen Without a license, in case of even a threat of a lawsuit you have to bring your defenses, which might or might not stick, but that is going to be costly. – Trish Feb 02 '24 at 10:27
  • @Trish I appreciate the real-world ramifications and how thoroughly you have answered my questions. Thank you for that! My hope though is that someone may have insight on whether I would be in the right. Even winning or losing a court case may come down to quality of lawyers, etc. But I’m just wondering if I would be in the right, legally :) – Todd Mullen Feb 02 '24 at 10:30
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    Sadly... 17 usc 106 (1) & (2) are quite clear. – Trish Feb 02 '24 at 10:39
  • Actually, "Nintendon't" is from a Sega Genesis marketing campaign. – OrangeDog Feb 02 '24 at 16:03
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    The OGL is... not a great example, uh, at all, considering the brouhaha over what it turns out it does and doesn’t allow. FSF concluded that it effectively didn’t allow anything you weren’t already entitled to do (though I find this dubious), while Wizards of the Coast claimed it allowed them to unilaterally update the terms despite the presence of various things in the license that suggest otherwise (and public statements at the time of its initial publication saying that would be impossible). The furor over the debacle was so intense that WotC released the same content under Creative Commons – KRyan Feb 03 '24 at 05:56
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    More on the “OGL 1.1 debacle” over on the RPG Stack. ...and I just noticed who wrote this, so I suppose I’m not telling you anything you don’t know. Still, I don’t think the OGL is a good example here. – KRyan Feb 03 '24 at 05:58
  • @Itération122442: With children drawing a copyrighted character and getting sued for selling the art, there's basically one extra hurdle - how much the company wants to take the PR hit for suing a kid and their family over a drawing of their character. So like the Fair Use affirmative defense...if you're relying on it to get away with selling a derivative of a copyrighted work, you're already in hot water. – Alexander The 1st Feb 03 '24 at 07:27
  • It's unclear whether a fan game nessesarily uses any copyrighted material. For example, if it has all original assets and writing, I don't think it'd be infringing any copyrights. In that case, I think only trademark law would be relevant. – Vaelus Feb 03 '24 at 14:27
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    @Vaelus you can violate copyright by just drawing a copyrighted character as depicted by the copyright owner. it doesn't matter that you drew Pikachu, it's copyright infringement to draw pikachu. – Trish Feb 03 '24 at 14:43
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The other answers seem to miss the fact that you are in . Section 29.21 of Canada's Copyright Modernization Act provides an exception in that may apply to your case:

(1) It is not an infringement of copyright for an individual to use an existing work or other subject-matter or copy of one, which has been published or otherwise made available to the public, in the creation of a new work or other subject-matter in which copyright subsists and for the individual — or, with the individual’s authorization, a member of their household — to use the new work or other subject-matter or to authorize an intermediary to disseminate it, if

(a) the use of, or the authorization to disseminate, the new work or other subject-matter is done solely for non-commercial purposes;

(b) the source — and, if given in the source, the name of the author, performer, maker or broadcaster — of the existing work or other subject-matter or copy of it are mentioned, if it is reasonable in the circumstances to do so;

(c) the individual had reasonable grounds to believe that the existing work or other subject-matter or copy of it, as the case may be, was not infringing copyright; and

(d) the use of, or the authorization to disseminate, the new work or other subject-matter does not have a substantial adverse effect, financial or otherwise, on the exploitation or potential exploitation of the existing work or other subject-matter — or copy of it — or on an existing or potential market for it, including that the new work or other subject-matter is not a substitute for the existing one.

Essentially, if your gams is used "solely for non-commercial purposes," you attribute the source, the original work does not infringe anyone else's copyright (or at least, you reasonably believe that it does not), your game "does not have a substantial adverse effect, financial or otherwise, on the exploitation or potential exploitation of the existing work... — or copy of it — or on an existing or potential market for it," and your game "is not a substitute for the existing one," then you are most likely not infringing copyright in Canada.

The bold part is important; this exception is unique to Canada and is much broader than "fair use" and "fair dealing" in other countries. Your game will be infringing outside Canada, so unless you follow what one of the other answers says, it will need to stay in Canada. You said you want to "build code for a fan game and play it [your]self or share it with friends"; if you and your friends are all in Canada, and none of you take or send copies outside the country (strictly speaking, this includes not travelling internationally with devices that have the game installed), this should not affect your use case.

If you have more specific questions, it would be best to consult an attorney. If you plan to share your game in a way that allows the general public to access it, then you should definitely ask a lawyer.

Someone
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    Wow. Now I wish I lived in Canada. Can this be adopted worldwide, pretty please? – Keiji Feb 03 '24 at 07:05
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    @Keiji: If I were in charge, I'd say that works produced under the described conditions could be treated as having a "presumptive but revokable license"; if a copyright holder objects to a piece of fan artwork, fangame, fanzine, etc. the copyright holder could forbid further publication thereof, and demand that people who had distributed the work make some reasonable effort to convey notice of such prohibition to recipients, but distribution prior to receipt of such notice would not constitute infringement. – supercat Feb 04 '24 at 19:12
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    @Keiji: The rationale would be that many copyright holders would prefer to allow their works to be used in ways they wouldn't find offensive, without granting irrevocable permission to use their work in offensive ways. Letting works be used in ways that the artist or author would approve of, without having to burden the artist/author with the work of vetting permission requests, while retaining the right to revoke permission, would work to the benefit of authors and fans alike. – supercat Feb 04 '24 at 19:33
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    @supercat I don't think that's enough. To invest years, possibly decades of your free time into creating fanworks only to be told you can't do that any more is absolutely crushing emotionally, whether you're also being punished for previous distribution or not. Getting permission is the only way to avoid this, and for that you basically need to either be lucky, wealthy or privileged. So many of us just take the risk of creating something without permission, but so often the result is that the only remaining option is to just not bother in the first place. – Keiji Feb 05 '24 at 07:45
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    @supercat Also, doing things this way would just increase the inequality between indies and huge publishers. Most copyright doesn't stay with the author: they'll sell the rights to the publisher, in exchange for actually having their work see the light of day. But I would bet you that if the law worked your way, those big publishers would just employ people (and/or bots) to search for every derivative work and issue a "revoke permission" order automatically, without the author even knowing about it. It would be just like patent trolls. – Keiji Feb 05 '24 at 07:47
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    @Keiji: The rules I describe would be a vast improvement over rules that would allow the fanfic (etc.) creator to be sued for substantial damages without warning. Further, one of the reasons that licensing is reserved for prestigious entities is the vast number of people who would want permission for uses that often have a market value of $0.10 or less. If someone produces a fanfic video that they expect to get maybe 1,000 views if they're lucky, and it goes viral with over 1,000,000 views, then it would be worthwhile for the creators of the video and the base work to negotiate... – supercat Feb 05 '24 at 16:33
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    ...licensing terms, but in the more common scenario where the video doesn't even get 500 views, any efforts to work out licensing would be a waste of everyone's time. As for the notion that publishers would seek to strike all derivative works, such actions would generate zero revenue, while generating ill will and eliminating what should be a source of free advertising, and also and reduce the willingness of artists and artists to sign with them. – supercat Feb 05 '24 at 16:41
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    Maybe a possible compromise could be that the copyright holder could issue such a strike, but have it cost them in some way, such as a fee that must be paid that would go to an agency similar to the US government's National Endowment for the Arts? That way, they can stop further distribution of works, but there is an incentive not too, and if they do, it helps to promote creativity, which is, after all, the purpose of copyright. – Someone Feb 05 '24 at 19:13
  • @Someone: Most authors and artists want to encourage fans to like them, and would want to avoid alienating such fans. If e.g. people who belong to a particular religion want to portray a character as sharing views that are opposed by the author who created that character, the author may not want to have fans who would views the character in that way; if takedown notices alienate such fans, so much the better. – supercat Feb 06 '24 at 19:06
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1. Wait for copyright to expire.

Life of author+70 years, or 95 years from publication, for works authored by a company (and not a group of individuals). Frozen, from Disney, falls under the latter category.

Even so, you might run into trademark troubles. Mickey Mouse (the Steamboat Willy version) is public domain but Mickey Mouse is a trademark of Disney in around 70+ categories. Their lawyers can come after you for that.

2. Make the fan art/fiction/game but never distribute it (until #1 comes into effect, at least).

You can make your fan game and it is entirely legal for you to do so. Unless you distribute copies (including a full transfer the single copy you made), you do not violate copyright.

There are some who say you can distribute fan art and it's legal so long you do not profit from it. Doing so is not "entirely legal" as the question demands.

Some companies, like Games Workshop, went after fan-art/fiction/videos and enforced their copyright to the point of suffering community backlash.

There is a fear in these big companies that if they don't enforce copyright thoroughly, courts might see this as a dilution of their power to do so.

3. Make the product but enact changes to go around to skirt around the copyright (by a wide berth).

"Fifty Shades of Gray" was originally a "Twilight" fanfiction. The author then remove all references and allusions to the vampire novels, and marketed it as an original work.

Citing a recent example, Palworld is very similar to Pokemon. But it doesn't fail the informal "squint test"

In layman’s terms, a good way to tell if a copy should be allowed is to ask whether it fails the ‘squint test’: If you need to squint to see the difference between two designs, then one is an infringing copy of the other.”[ref].

Game mechanics cannot be copyrighted. Only music, graphics, character design, text, lore, and so on.

You can make a game that plays similar to pokemon. Back to Palworld, one thing pundits pointed that made the games different was the violence.

Unlike Pokémon, Palworld is a more violent game where players can wield a variety of weapons like machine guns, rocket launchers and spears. Its gameplay includes brutal options like being able to butcher pals and using pals as live shields in combat.[ref]

Since this is recent news (at the time of this posting), it still remains to be seen if some legal action will be attempted by the holders of the Pokemon franchise.

4. Buy a license.

Easier said and paid than done. The copyright owner might outright refuse.

5. You might get sued/receive a DMCA takedown, get Copyright Struck, nonetheless. Even if you did #4.

Unless you bought a license, there's nothing stopping the (assumed) bigger company from coming after you. They might file a lawsuit that will end in a nothingburger and force you to spend legal fees to defend yourself.

At least, expect a C&D letter. Sending a threatening letter costs next to nothing to them. (disclosure: I received a couple in my life). The C&D letter might be just empty threats.

Copyright bullying is the younger sister to Trademark and Patent bullying.

In one case, a YouTube author got a copyright strike from a song they licensed from the OG author after said song ended up in a big label portfolio. Or even with original song, due to alleged algorithm mistakes.

Mindwin Remember Monica
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How can I make a fan game entirely legally?

By asking the IP's owner for permission to make the game.

It's very common for videogame companies to do that.

Lag
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