Game Making Questions

Copyrights do have to be defended (in most jurisdictions) in order to hold any clout. But ignorance can be a reasonable defense when the derivative work is obscure. If a fan game is released and 50 people ever see it, and the copyright holder doesn't pursue it because they don't even know about it, that doesn't give someone else the right to make a huge commercial project that's a derivative of the original and point the finger at the copyright holder for "not defending their copyright before".

You also don't need to defend your copyright in any particularly vigorous matter in order to protect it. If something's not hurting you, a simple cease-and-desist letter is usually all you need to issue, I think. Even if they don't take it down and you don't go after them, you can demonstrate your intention to protect your IP.


If a fan wants to be sure that a work they're going to create (based on some copyrighted work) is okay, the onus is on the fan to contact the copyright holder and inform them of the intention to create a derivative work. Most of the time the copyright holder will say no, so that's why fans rarely reach out. But yeah, if the fan doesn't do this, and then the copyright holder tells them to cease and desist later, that's the fan's fault for not checking in advance. They don't have a leg to stand on if they say they couldn't have known whether it was going to be okay - of course they could have known, they just didn't want to know.


Indeed, it can be surprising how much you can get away with. Look to other genres like Match-3, RPGs (think about how many early console JRPGs were mechanically similar to Dragon Quest), and Rhythm Games (think DDR vs. In The Groove vs. Stepmania). An exact clone of your gameplay could certainly be shut down (a Russian clone of Super Mario Bros. using different graphics but identical level design, for instance, was eventually taken down from the App Store), but it's really the "artistic" elements (graphics, music, characters/dialogue) and the core technology (if it's proprietary rather than middleware) that have the strongest protection in video games. Developers get a lot of latitude to slightly alter, or even directly copy, gameplay mechanics.

Just to give an explanation why a copyright has to be defended in that way and why most authors prefer not to know about them if possible:

Very few creators have a direct problem with a small fan fiction or fangame that remains obscure in a tiny edge of the internet.
However there are three problems that have arisen around fangames and fanfiction in the past:
1) someone tries to sell into the IP and make money on it without asking the original creator.
One of the possible defenses for that person would be to say "hey, the author has allowed those other fanproducts, so he can't suddenly claim that I cannot work here".
That has resulted in voided copyrights when the judge has seen enough allowed fanworks to declare against the author.

2) As described in the linked website of my previous posts, if an author reads fanfiction in his own universe and then publishes official work with a similiar storyline, questions on who holds what part of the copyright of that work have arisen in the past - again creating problems for the copyright and the author.

3) The fanproduct uses the greater IP to promote concepts that are contrary to the original authors beliefs.
That even has caused additional restrictions in products especially from japanese artists who had some problems coming up - just check one of the newer VNM-Picture-pacts in the Degica store where they used a restriction "contents of this pack may not be used in adult games" for the first time.https://www.rpgmakerweb.com/a/visualnovelmaker-character/believer-visual-novel-maker-vol-1
Or think about a fanfiction in the "Indiana Jones"-Universe that tries to find excuses for the behaviour of the Nazis or such things.
Such fanproducts could cause problems for the original IP even if they go against the authors wishes.

Additional problem here is that by asking, the fan is informing the author of that work - which means that the author has an added requirement to keep control of that specific fanwork, because he can never again claim ignorance of that work. After all he has been informed of the copyright breach, so he has to take action.
That is why even most authors prefer not to be informed of such work, because they have to say no when informed unless they already have prepared a contract or licence under which their content might be used.

Isn't the standard form of Copyright that it can't be used without express written consent? And by extension, if the author replies Yes to a specific request to use content from the original work in a certain way, doesn't that count as express written consent and can't the author still defend their copyright against any and all other attempts to use their content?

I understand that the lack of a contract/license also means there is no Consideration, making it slightly different than, for example, Universal licensed Marvel's superheroes for their theme park. But I thought that most of the same concepts still applied, even with the lack of Consideration. Am I wrong?

@Wavelength that is absolutely correct - what you're forgetting is that there are some authors out there who are willing to give their fans as much as a grey zone as possible without loosing their own work/copyright.

The difference comes from the fact that copyright law is civil law, not criminal law - that means that ONLY the copyright holder can initiate an action against anyone who breaks the copyright. And the copyright holder can (to a certain limit) decide to ignore a breach.
That doesn't make that fanproduct legal at all, but it does create the grey zone in which the fanproducts survive as long as they keep their head down.

But by informing the author, the fans leave that grey zone to get clarification - and the laws as is then require the author to either give a licence (which means writing a contract with limits and so on, even if that is some predefined standard contract) or deny the option.
And since a yes is more work done (it needs at minimum be documented by the author to prevent voiding the copyright for too many undocumented cases), most cases end in a no even if theoretically the author has no problem with the fanwork.

Thanks for the information. Before looking into it, I would have had no idea that it was illegal. I knew that selling works with someone else's copyrighted material was clearly against the law, but I thought, maybe like many others, that fan works that weren't for profit but just for fun or education had some kind of protection. After all, that at least seems logical, right? I never would have imagined fan works that borrowed original content could cause problems for the person who rightfully owned those characters and worlds. That's ridiculous, to be honest, but the law is the law I guess.

I really think someone should look at those laws and revise them, though. Fans don't mean any real harm by borrowing characters and worlds, and I've never seen people trying to sell their fan works, although I've heard about these weird people trying to claim copyright infringement against an original author for fan submitted works and ideas, but common sense should dictate that if you create a fan work that borrows previously established characters or worlds that have active copyright, all rights and such go to the original author of the characters or worlds that were borrowed, and if it causes trouble for the actual brand, the author has the right to ask you to remove it, but it should never really get that way in the first place.

That's still hard for me to wrap my head around, though, especially with fan fiction. There are whole well known websites dedicated to fan fiction genres, and there are only a few fandoms that can't be written in for fear of copyright claims; it appears to be an extreme exception, not the rule.

I guess I'm one of the rare few concerned that fans who borrow copyrighted material for their own works, not with the intent to sell but just with the intent of enjoying, adding to, learning about something, are technically breaking the law. So many people do it, though, that I think that's a good argument for the rules to be changed, at least in the case of fan fiction.

@Andar thanks a lot for the additional detail!! :thumbsup-left:

By the way, thanks for this tutorial. I think I'll spend a little time deciding where exactly to start and what I want to do first.