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#61:

So You Wanna Clone Somebody's IP

Originally written: April, 2006. Most recent update: March, 2016.

NOTE: these lessons are primarily aimed at aspiring game designers, but many of the concepts described herein also apply to those who aspire to other types of jobs in the game industry. This lesson is subject to changes and improvements; reader comments are welcome.


Introduction.

Frequently Asked Question #61: "I'm making a game that uses the [graphics or characters or name or gameplay or music or...] of a previously published [game or movie or book or album or TV show or...]. I want to know what my legal risk is."

This question (as you can see by the brackets above) is asked in a variety of ways. And the last part of the question is usually worded variously:

  • "Could somebody sue me?"
  • "The old game is no longer published, so am I safe to use it?"
  • "I'm only going to put it on my website, not sell it, so that's OK, right?"
  • "I made it as a school project and everybody thinks it's great, so now I'd like to make a little money from it, and I emailed the IP owner but they told me no so now what can I do?"
  • Or "...but they never replied so now what can I do?"

    If you were directed to this site by someone, it was because your question fits into this category - even if you think your situation doesn't exactly match any of the above. You should read this entire article carefully, and find correlations with your situation - there are correlations.

    This topic was briefly discussed in FAQ 39 (under the heading, "Respecting the Intellectual Property of Others") but it's so frequently asked that I decided to expand on it and make it its own FAQ.

    There are exceptions to every rule. So while it's true that in general, you should try your best to be totally original in creating your own game, it's also true that, because so many games have been made over the years, it's practically impossible to make a game that doesn't borrow at least some smidgeon of a sliver of an idea of one or more other games. Thus it happens that, whenever one of these "I wanna copy a game" topics arises on a newsgroup or forum, as it gets discussed down to the seemingly contradictory exceptions and details, every poster eventually boils it all down to this:

    "Just how closely CAN I copy something and get away with it?"

    Isn't it great how complex questions can be boiled down to simple questions? If only complex answers could also be boiled down -- but there is no simple answer to this simple question.

    I'm not a lawyer, but I've been in the game industry a long time. I've heard all the arguments, and I've gotten a bit tired trying to explain this time and time again. I don't know of a website I can just point people to to answer this frequently asked question - so I'm writing this FAQ. Then, the next time it comes up, hopefully I can just say "read the FAQ" and then everybody will see not only what they can't do, but why they can't do it, and why they shouldn't mind being original and creative instead.


    0. Can they sue me, take me to court?
    Yes. Anybody can sue you, anytime, for anything. There's very little risk of being taken to court for doing nothing. The risk goes up the more you take actions that impact someone else (like using their IP for instance). Going to court can be expensive, even if you are found not liable to the IP owner. It's all about risk. Determine your level of risk aversion, and act accordingly. The more you are afraid of being sued, the more careful you should be about using somebody's IP (the harder you should work at not copying it). The more you are afraid of being sued, the more you should consider consulting a lawyer before taking action as regards to someone else's IP. A little bit of attorney cost now can save you a lot in court and attorney costs later.

    1. What if the only thing I want to "borrow" is a character?
    Characters are probably the most unique, most recognizable aspect of a game or any other IP. You definitely do not want to use Mickey Mouse, Ms. Pac-Man, Jack Bauer, Pikachu, Harry Potter, Mario, Lisa Simpson, Columbo, Kenny, James Bond, Spongebob, or Max Payne in your game. A resounding NO to this idea. Create your own characters instead.

    1½. Sheesh. OK, so I'll use a celebrity's face instead.
    Just as bad. Celebrities make a living from their faces, and they'll sic their lawyers on you real quick if you try that. Celebrities are not fair game like public figures are.

    2. "Public figures" are different from "celebrities"?? This is so confusing!!
    Yeah, well, you can just look that stuff up on Google or Nolo.com or Wikipedia.

    2 1/16. I'll just claim that it's "Fair use." Like what Weird Al did.
    It's unlikely that your game would fit the qualifications for fair use. What Weird Al did was parody (if you're going to cite precedent, ya need to be specific). Besides, Weird Al always sought permission. I taped an interview from TV where he told the story, and said that That Guy Formerly Known As The Guy Formerly Known As Prince didn't want to cooperate with Weird Al, so Weird Al never parodied a Prince song. I still have the tape around here somewhere, I think. Oh wait, I can't share that with you! You can find that story online anyway.

    2 1/8. Yikes, then I guess I shouldn't do that.
    Ding ding ding ding!
    Note: the above Fair Use Q&A was suggested for this FAQ by bschmidt+4numbers on gamedev.net. I have modified all the wording so I can still rightly claim copyright on this FAQ. Now let's hope he doesn't file a complaint on me for that, for not crediting his full name, and for not remembering what his 4 numbers are (hint: in what year was JFK assassinated? Subtract one. ...See, I actually do remember).

    2¼. I want to depict a specific car or airplane or handgun, and I don't wanna deal with asking permission. Should be OK, right?
    Better ask permission, or make your car or airplane or handgun look different from the actual one. A lot of manufacturers have taken to enforcing their IP rights recently, with model kit manufacturers and video game makers. License it or change it.

    2½. OK, I'll change them, but I'll still refer to them as the Ferrari Enzo, the F-15E Strike Eagle, and the MAC-10. Should be OK, right?
    Well, no. A lot of manufacturers have taken to enforcing their trademarks recently, with model kit manufacturers and video game makers. License it or change what you call it, if you're going to depict it in your game.

    2¾. [Sigh!] That doesn't make sense. The F-15E Strike Eagle is a military machine, paid for by taxpaying citizens of countries who buy them, so shouldn't that be public domain rather than somebody's enforceable trademark?
    A lawyer could give you a better explanation, but as I understand it, the manufacturer of the plane hasn't given up its IP rights by selling its machines to governments. Now, I'm not giving you a legal clearance to do this (since I'm not a lawyer), but if you refer to a military plane by its American military designation, like F-15E, that probably doesn't get into the realm of enforceable trademark...

    3. What if the only thing I want to "borrow" is a game's title? There was this game "Cheese" I played as a kid. Now I want to make a take-off, and call it "NuCheese."
    Titles are also fiercely protected. We're getting into the realm of trademark here (as with characters and manufactured goods). You'd be better off entitling your game "The Return of Smelly Foodstuff" or something - don't go using other people's trademarks!

    3½. I just want to use a famous or semi-famous person's stage name. Say, for example, there's this comedian whose real name is John Johnson and he uses the stage name "Hilarious John." Can I name a character "Humorous John"? Even if my character doesn't look like Hilarious John?
    Don't do that. Hilarious John probably won't be amused, and he could take you to court. His stage name is his property, and he doesn't want someone else using a name that could confuse people and cause them to think it's him or that he gave you permission.

    4. What if the only thing I want to borrow is a song? There's this bitchin' song by Black-Eyed Peas that I...
    Ooh! Ooh! You mean that one from the commercial? I love that song! No. I wouldn't do that, if I were you. If you can't afford to license that song, either create some original music or don't have any music in your game.

    5. What if the only thing I want to borrow is the gameplay - say, the idea of jumping on things and collecting coins?
    Fine. Don't worry about it.

    5½. So I can make a Mario game as long as it doesn't have Mario in it or have "Mario" in the title?
    No. You also can't use the Mario music or sound effects, and you can't use any of the other Mario characters (you know, the ones who aren't Mario himself), and you shouldn't simply copy the Mario gameplay exactly.

    6. But what if I'm only doing it to learn how to program a game?
    No problem.

    7. Of course, now that it's done, I want to put it on my website and share it publicly with others.
    No! Problem!

    8. Now that it's done and on my website, and all my website visitors have seen it and they all love it to death, I want to sell it and make a little of my investment back.
    NO!! PROBLEM!!

    9. What's the big deal? How likely is it that the IP owner will find my site and sue me? Besides, if they do sue me, I got nothin' and can't pay'em. Why would they be willing to spend all that money on lawyers and court costs just to go after a little guy like me?
    Because their IP has tremendous value, and they don't want little street urchins like you nickel-and-diming the value out of their IP. Because they created something original that's loved by many, and you're just a minor thief who can't be bothered to do something creative and original.

    10. Now you're just being abusive. I'm not a thief. I'm just, um, not very imaginative or talented. It's easy to just grab some images off [the Internet or the package or the comic book or the album cover or ...] and put them in my game, but it's hard to make something new that will also instantly grab the heartstrings of the players.
    Yes, I understand that it's fun to use those characters. There's a reason why those characters are fun - it's because somebody worked hard, and put a lot of time and money into making them that way. It's not right that you just use that to enrich your own work. If you can't create a character of your own, see if you can get an artistic friend to give you something you can use.

    11. But everybody loves it the way it is now! If I change it, everybody'll rag on me and tell me to change it back.
    Yes, I know you and your budz have fallen in love with the game the way it looks or sounds right now. It happens that way with all game projects. A game programmer sometimes has to use placeholder art to get the game working. Then, later on, when the actual intended art goes into the game, suddenly everybody, not just the programmer, often even the testers (!), starts whining that they loved it the way it was! Deal.

    12. But a kajillion other people have done ripoffs of that IP. So I'll just be one in a crowd. I can point to all those others as precedent.
    That's the same argument people use for speeding. When the cop stops you, and you point at all those other speeders speeding away, he'll just tell you, "Ah, but there's a difference between them and you. You're the one who I pulled over, so you're the one who's getting the ticket!"

    13. So I just need to run faster than the other gazelles, that's what you're saying.
    Come on, you're ruining my momentum here. The whole point of this is simple. BE ORIGINAL. CREATE SOMETHING NEW AND UNIQUE.

    14. So there's nothing I can borrow from any game? Then how can anybody make a game at all? This is all so confusing!
    So consult a lawyer. He or she can help you make sense of it all.

    15. But I can't afford a lawyer!
    Then you can't afford to be in the business of making games.

    16. But I'm not in it as a business.
    Now you're changing the story on me. You said before, and I quote, "I want to sell it and make a little of my investment back."

    17. But it's just a little bit of money!
    And it'll only be a little bit of a lawsuit... compared to the typical tobacco death case... or the O.J. Simpson wrongful death suit... No matter how little the suit might be for, are you really sure you want to risk getting sued, taking time off from work without pay, to go to court, hire a lawyer to defend you, so you can explain to a judge why you had to "borrow" somebody else's valuable IP instead of just being creative...?

    18. Why couldn't you just tell me the easy answer to my question? All I want to know is this: how closely CAN I copy something and get away with it? Where's the dividing line, and I just won't cross it, is all. It's a simple question. If you can't tell me, I'll just ask somebody else.
    Yeah, but you're just asking strangers on the Internet.

    18½. Not just strangers! Professional game developers, people who know about this stuff.
    You mean, people like me?

    18¾. [Sputter!] [Choke!] But you're just being a hardass. I'll get a different professional game developer to give me the straight poop.
    The best person to ask is a lawyer. ...Oh, right, you can't afford a lawyer.

    19. Yeah, and I hate lawyers anyway. They're all ambulance-chasers and frivolous suits... um... or something. Hey, whaddaya call it when you have twenty lawyers dead at the bottom of the ocean?
    I know that one, and I refuse to answer.

    20. Or this one - what's the difference between a dead skunk and a dead lawyer?
    Now you're just avoiding the issue entirely. Give me twenty pushups, then repeat reading at question 1 above.

    21. You got no sense of humor. Look, I'm not done yet. Here, I just had an idea. I'm gonna use an obscure character from a game that was published 20 years ago. The company that created that game is long out of business, so that should be safe, right?
    No. Somebody still owns that IP unless it was officially put into the public domain.

    22. Heh. Pubic DesMoines? What's that?
    You're trying my patients, as the doctor once said. If you want to have a legal discussion, you need to be familiar with common legal terms. Don't just look up my definitions in the Game Biz Glossary, either. You really need to get a good book on copyright and trademark. In FAQ 8 I recommended a favorite of mine, from Nolo Press. You need to know these words and terms:

    23. I can just look that stuff up on Wikipedia. I don't need to buy no stinking book.
    Oh yeah, I forgot. You're Mister Moneybags, who wants to start his own game business without spending a dime. I remember now.

    24. So why do I need to know all those stupid words and terms?
    Because they're all an important part of the answer to your question.

    25. So why don't you just tell me what they all mean?
    Because I already did, in the Game Biz Glossary. Most of'em, anyway. And the ones I didn't, you can just look up on Wikipedia. I don't need to write you no stinking definitions!

    26. I don't really need to know all that stuff. I asked a simple question, and look what I get. You sure do make things complicated.
    That's right, shoot the messenger. I roll my eyes at you as you walk away in a huff. Hey, what's your hurry? Make it a minute and a huff!

    To sum this up, since many readers of this FAQ still ask "can I use somebody's this" or "how about if I just use somebody's that": it is my recommendation that you not use somebody else's IP. Be creative. Make your own. If, after researching all the legal terms listed above, you are still unsure if you can proceed with your plan, YOU MUST CONSULT A LAWYER.

    If you ever have to ask "will this get me in trouble," and you don't want to pay an attorney to find out, you shouldn't do it. Simple. Remember-- Just because you might have a DEFENSE doesn't mean you can't get SUED.


    Mona Ibrahim wrote an excellent article on "clone-games-and-fan-games-legal-issues" - it was her Dec. 3, 2009 blog at http://maientertainmentlaw.com. Perhaps you can still access it by using the Wayback Machine (http://web.archive.org).


    And her article Analysis: Clone Games & Fan Games -- Legal Issues is also posted on Gamasutra.


    If you want to make a game about someone's IP with their permission, you need to obtain a license from the IP owner. Mona Ibrahim wrote an article about that: "licensing-third-party-ip-for-your-game-part-i/". Perhaps you can still access it by using the Wayback Machine (http://web.archive.org).


    Here's an interesting article about how even the New York Times has difficulty with the concept of IP ownership. The point being, you really really need to consult an attorney before making a game with somebody else's IP -- or just don't use anybody else's IP.


    For further reading, I highly recommend the article "Intellectual Property in the Brave New World of User-Created Games" - it was originally published on GameDaily.com but the page is no longer live. You can, however, use the Wayback Machine (http://web.archive.org) to find an archived copy of the article. Go to web.archive.org and paste this URL into the search box:
    http://biz.gamedaily.com/industry/myturn/?id=14458
    After you read that, I also suggest you read this interesting article about fan fiction and fair use by Rebecca Tushnet, and this article by Judith Gran. Those articles may well just confuse you further, so you may well still want to consult a lawyer before using the intellectual property of another party - especially big companies with deep pockets. Broken record, I know: I recommend you don't use anybody else's IP.

    Not confused enough yet? Check out this article on venturebeat and contrast it with this one! (Added January 2012, thanks to an interesting IGDA Production SIG thread.)

    More about Zynga lawsuits.

    A very enlightening discussion on the topic of copying gameplay can be read at http://www.gamedev.net/community/forums/topic.asp?topic_id=544351.

    For further info, see "10 Big Myths about copyright explained" by Brad Templeton, at http://www.templetons.com/brad/copymyths.html.

    The FAQs for the GameDev.net "Business of Game Development" forum, at http://www.gamedev.net/index.php?app=forums&module=forums§ion=rules&f=5, are an additional must-read.


    Got a question or comment about this F.A.Q.? Email your comments to - you'll get a response on the Sloperama Game Design bulletin board.

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