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How To Judge Legal Risk When Making a Game Clone?

Soulskill posted more than 4 years ago | from the ask-a-lawye-oh-wait dept.

Games 270

An anonymous reader writes "I'm an indie game developer making a clone of a rather obscure old game. Gameplay in my clone is very similar to the old game, and my clone even has a very similar name because I want to attract fans of the original. The original game has no trademark or software patent associated with it, and my clone isn't infringing on the original's copyright in any way (all the programming and artwork is original), but nevertheless I'm still worried about the possibility of running afoul of a look and feel lawsuit or something similar. How do I make sure I'm legally in the clear without hiring an expensive lawyer that my indie developer budget can't afford?"

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Laws have become horribly, horribly complex (4, Insightful)

bcmm (768152) | more than 4 years ago | (#30734618)

How do I make sure I'm legally in the clear without hiring an expensive lawyer

Laws have become horribly, horribly complex. I'm not sure any of us can do that for anything we do.

Re:Laws have become horribly, horribly complex (0)

Anonymous Coward | more than 4 years ago | (#30734636)

Get ready to have your pants sued off you, too. You should contact the owner of the original game for their legal OK, if you really want to release teh game.

Re:Laws have become horribly, horribly complex (5, Insightful)

adamrut (799143) | more than 4 years ago | (#30735410)

Gameplay in my clone is very similar to the old game

Pretty much all games have used and extended ideas from previous games, copied user interfaces, themes, etc. So I don't think you'd get into trouble making something similar (at least a token effort should be made to put some original styling to the game).

and my clone even has a very similar name

but I think this is the bit where the pants get sued off.

Re:Laws have become horribly, horribly complex (5, Informative)

snowgirl (978879) | more than 4 years ago | (#30734680)

How do I make sure I'm legally in the clear without hiring an expensive lawyer

Laws have become horribly, horribly complex. I'm not sure any of us can do that for anything we do.

This is very true. I've been reading a lot about law recently, because it's become pertinent to my everyday life. In this case, and ALL legal cases, the law is SUPER crazy complex. First you need to read up on rules governing this stuff, then laws, then amendments to those laws, then you have to read a bunch of court cases on the matter, and then you have to have the legal background to understand how all of those apply to your specific situation.

The summary author really only has one of two choices: a) pay a lawyer, or b) ignore the legal consequences and only deal with them if you get sued.

Very simply, that's the plain ugly truth hanging-all-out-there-naked version of every question of, "what should I do about law X, or law Y"... well, unless you're in Arizona. Then there's an option c) pay someone who is willing to do the research for you, even if they're not a lawyer, but understand their qualifications before trusting their evaluations. Outside of Arizona, no one can even give you any clues about your legal liability without running aground of questions of practicing law.

Re:Laws have become horribly, horribly complex (-1, Offtopic)

Anonymous Coward | more than 4 years ago | (#30734772)

that's the plain ugly truth hanging-all-out-there-naked

Coming from a girl posting on slashdot at 4AM, that has to be an oxymoron! Will you mary me?

Re:Laws have become horribly, horribly complex (1, Funny)

MichaelSmith (789609) | more than 4 years ago | (#30734850)

that's the plain ugly truth hanging-all-out-there-naked

Coming from a girl posting on slashdot at 4AM, that has to be an oxymoron! Will you mary me?

by snowgirl (978879) * writes: Alter Relationship on 2010-01-12 20:26 (#30734680) Journal

Maybe she lives in my part of the world...

Re:Laws have become horribly, horribly complex (-1, Offtopic)

Ethanol-fueled (1125189) | more than 4 years ago | (#30734906)

You wouldn't want to bump into her, even by accident. She'll kick you in your nuts and then press charges against your testicles for raping her foot.

Then after you go bankrupt settling out of court, she'll writhe all over her bed while eating chocolate ice cream and listening to the new Tori Amos CD she bought with your money.

Let me present a third choice (4, Insightful)

mrjb (547783) | more than 4 years ago | (#30734892)

a) pay a lawyer, or
b) ignore the legal consequences and only deal with them if you get sued.

It takes being a bit cheeky, but you can also

c) contact the author/publisher of the old game and get (in writing) that they have no problems whatsoever with you releasing the clone.

If you're dealing with a company like Atari (who? yes, they still exist!) or anything Disney, you are probably out of luck. If you're dealing with a Scott Adams (of Pirate's adventure fame) type of person, there's probably no problem at all. As you say the game is rather obscure, so chances are they will have no problem with you releasing a remake, and they won't sue. Perhaps they can even benefit from your efforts, if you're willing to link to the original game!

Re:Let me present a third choice (2, Interesting)

osu-neko (2604) | more than 4 years ago | (#30735040)

...a company like Atari (who? yes, they still exist!)...

Depends on who you mean by "they". If by "they" you mean the people who bought the rights to use the "Atari" trademark, yes, they exist. If you mean the company that made classic video games in the 80s, no, they're long gone...

Re:Let me present a third choice (1)

Hal_Porter (817932) | more than 4 years ago | (#30735422)

The name Atari is now owned by The French. I think it would have been kinder to take the name out back and shoot it rather than let that happen.

Re:Laws have become horribly, horribly complex (1)

johny42 (1087173) | more than 4 years ago | (#30735216)

The summary author really only has one of two choices: a) pay a lawyer, or b) ignore the legal consequences and only deal with them if you get sued.

What about
c) talk to the copyright holder of the original game?

Re:Laws have become horribly, horribly complex (3, Funny)

Hal_Porter (817932) | more than 4 years ago | (#30735376)

I sell FUD insurance. It's not clear now if you need it, but it would be very bad if you do turn out need it and don't have it.

The real question: WOULD they sue? (5, Insightful)

Senes (928228) | more than 4 years ago | (#30734646)

The question can not be asked whether someone "can" sue, because anyone can file a suit for any reason. And in modern legal warfare, that is a good assessment of how things go down. Instead it is a matter of whether they WOULD sue. The questions you should be asking yourself: -Who holds the rights over the original game? -How litigious have they been in the past? -Do they belong to an industry association?

Re:The real question: WOULD they sue? (1, Interesting)

Anonymous Coward | more than 4 years ago | (#30735488)

The question can not be asked whether someone "can" sue

.. sure it does. If you pick the jurisdiction, you can select a jurisdiction where the claimant will have to put up a large bond to cover the legal expenses for the first 12 months.. a jurisdiction where these types of lawsuits are frowned upon and regularly thrown out of court.
You'll find that the vultures will go for your neighbour who happens to be incorporated in the US.

Re:The real question: WOULD they sue? (1)

tverbeek (457094) | more than 4 years ago | (#30735556)

Have you considered asking permission?

Re:The real question: WOULD they sue? (1)

tepples (727027) | more than 4 years ago | (#30735610)

For a large enough company, the answer is probably "We have a policy of not giving indies the time of day."

Re:The real question: WOULD they sue? (2, Interesting)

Z00L00K (682162) | more than 4 years ago | (#30735638)

And yet another question - do that corporation know that they have the right to that game?

Not every corporation does have track records that legally entitles them to the copyright of a certain piece of software written some 30 years ago. It may be that during some part of the process those rights were left out or that the purchase only was for the brand name etc.

Not everyone suing does hold the rights either.

There are multiple variations on a theme here. But if you do sell a look-alike that does have some modern or modified qualities in it it's hard to claim copyright on it. All adventure games do inherit from the original "The Cave".

And now it's the internet - so selling games from certain sales locations will make lawsuits trickier. You may even have a business model of free download and then sell services around the game instead.

Just go the way that will create the most headache for the holders of the rights to the original game for them to figure out if it's worth pursuing and how to do that. Distribute the responsibility for the game and the development of it into different legal entities so that you only have a facade company that takes the hit if something goes down the drain. Facade company owns the rights to the software, but every employee is in another to which all the money goes as "development costs", so if it goes really bad only the facade falls and the application rights may get voided.

Done right the risks are lowered.

Just make sure that it will cost more to investigate your businesses than what can be gained from pursuing a case against you and you can relax a bit.

Risk it (3, Insightful)

dintech (998802) | more than 4 years ago | (#30734648)

Go for it and don't worry. If you make money on the game and someone notices, you might need to share the profits. Given the description of the game, that might be fair in this context. On the other hand, if you don't make any money, no-one is going to bother you with anything other than a cease and desist. Either of these scenarios will make your game more popular. See Streisand effect for details.

Re:Risk it (1)

Trepidity (597) | more than 4 years ago | (#30734830)

Yeah, I'd second this. Most likely, if the original publisher notices, and you're small fry, they'll just send a C&D, not try to sue you immediately. It's only worth their time to sue right off the bat if they suspect you have deep pockets, e.g. if this clone got distributed through a major publisher.

Re:Risk it (2, Insightful)

delinear (991444) | more than 4 years ago | (#30735006)

Obviously the downside to that is that, if you've invested money in producing the game and then you're hit with a cease and desist before you've sold anything, you'll be out of pocket for the development costs.

Re:Risk it (4, Insightful)

Zadaz (950521) | more than 4 years ago | (#30735108)

"On the other hand, if you don't make any money, no-one is going to bother you with anything other than a cease and desist."

This is entirely false and shows the problem with asking for legal advice from random strangers on the Internet. If a company feels that you're damaging their trademark, image, etc, they'll sue you for damages, even if you have never made a dime. And they can win money you don't have.

If you have a question for a lawyer and you can't afford one, stop what you're doing. It's that simple.

The OP says:

" The original game has no trademark or software patent associated with it..."

How do you know? Did you just type "obscure game" into the USPTO's web site? Or did you have someone who knows what they hell they're doing to a trademark and patent search. I suspect it's the former because the latter costs money, which you complained about not having, and can be done by an attorney who could also answer your questions.

The OP continues

"...my clone isn't infringing on the original's copyright in any way (all the programming and artwork is original)"

And this is why you're in deep crap, you have a limited and incorrect idea of what copyright is.

Oh, and hey, you're not making an iPhone game are you? Because if you are, when you go to publish your game you'll see the checkboxes for all those other countries, so hey, why not publish them there too? Bigger audience, more money, right? Or at least bigger potential legal risk. Copyrights, trademarks, patents, and intellectual property law are different in different countries, and lately the US has been willing to cooperate with litigious foreigners.

Note that I'm blindly assuming you're in the US. That's because you left the all important "what jurisdiction I'm in" information off your question. Just another sign of your ignorance and why you really really need to find the money for a lawyer.

Re:Risk it (1)

rodrigoandrade (713371) | more than 4 years ago | (#30735406)

Mod parent up!!

Most insightful post so far. Especially the iPhone part.

Re:Risk it (2, Insightful)

tepples (727027) | more than 4 years ago | (#30735640)

If you have a question for a lawyer and you can't afford one, stop what you're doing.

In other words, everybody who isn't rich enough to see a lawyer should commit suicide because ultimately, everybody has questions. I hope this isn't what you meant.

Did you just type "obscure game" into the USPTO's web site?

If I type each of the companies that developed and published the game into the "Assignee Name" field and nothing on the list is relevant, is that enough?

And this is why you're in deep crap, you have a limited and incorrect idea of what copyright is.

Could you explain further? As far as I can tell given information published by the U.S. Copyright Office [copyright.gov] as well as the opinion in Capcom v. Data East, copyright doesn't apply to the rules of a game as such.

Just another sign of your ignorance and why you really really need to find the money for a lawyer.

Any idea how to raise this sort of capital?

Re:Risk it (1)

LKM (227954) | more than 4 years ago | (#30735110)

The risk here is that if somebody doesn't like what you're doing, they can prevent you from selling your product, so you've wasted all of your investment. One example of this are the various clones of The Settlers which were available on the iTunes store for a while. They can't be sold anymore.

You can't (5, Insightful)

dreamchaser (49529) | more than 4 years ago | (#30734650)

How do I make sure I'm legally in the clear without hiring an expensive lawyer that my indie developer budget can't afford?

You can't. The worst thing you can do is what you're doing; going to a bunch of random armchair lawyers on the Internet.

If you're that worried, get a lawyer or do a different project.

Our Legal System Favors Creativity (1)

RobotRunAmok (595286) | more than 4 years ago | (#30734700)

...and is weighted against derivative hacks. Go figure!

Re:Our Legal System Favors Creativity (1)

selven (1556643) | more than 4 years ago | (#30734954)

Everything is derivative. Trying to fight this isn't being original, it's reinventing the wheel.

Re:You can't (0)

Anonymous Coward | more than 4 years ago | (#30734744)

Anybody who asks in public "Hey, how can I best fuck with IP law regarding this particular product?" pretty much gets whatever he or she deserves, IMO.

Re:You can't (0)

Anonymous Coward | more than 4 years ago | (#30734768)

Not really, as long as you don't turn any real profit, or any profit at all, no one will notice. When you do start to make some money you will get in trouble regardless of how original your game is or isn't. Best way in my opinion is to stay away from US markets.

Re:You can't (3, Funny)

dnaumov (453672) | more than 4 years ago | (#30734826)

Even better, instead of just getting a lawyer, get a lawyer AND make original games! Sounds crazy, but seems to work for some...

Start a new genre? (1)

tepples (727027) | more than 4 years ago | (#30735654)

Even better, instead of just getting a lawyer, get a lawyer AND make original games!

What exactly do you mean by "original"? If you mean the first of its genre, I'd like to see evidence that it's still possible to develop original games. The last genre-making game I can remember (Parappa the Rapper) was published in the 1990s.

Re:You can't (0)

Anonymous Coward | more than 4 years ago | (#30735054)

Even a lawyer can't give you anything approaching certainty. Laws sometimes conflict with each other and/or reality, and even when they don't judges have been known to misinterpret laws so grossly that you might think their native language is Sanskrit or something. The safest way to go is to try to make as sure as you possibly can that the law will not get involved in any way shape or form. Publish anonymously on the internet, on a host in another jurisdiction (both from yourself and the original authors) and don't use your real name and preferably not your computer. The worst that is likely to happen is that it gets taken down. Shit would suck, but your life wouldn't trashed. Of course, I'm assuming that you don't intend to make money from the project, but if I go by the way the question was asked, this is one of those fan hobby projects that is done solely for the sake of auld lang syne anyway.

Assassinate the original owners (2, Funny)

Anonymous Coward | more than 4 years ago | (#30734658)

Once they're all dead, they'll be no-one left to sue you.

Re:Assassinate the original owners (2, Insightful)

zblack_eagle (971870) | more than 4 years ago | (#30734888)

But then their estate could sue

Re:Assassinate the original owners (3, Funny)

Trepidity (597) | more than 4 years ago | (#30735018)

Assassinate the copyright owners, then wait 70 years?

Re:Assassinate the original owners (0)

Anonymous Coward | more than 4 years ago | (#30735022)

Got it. Invent time machine. Go back in time and kill previous author before he invents the game or leaves descendants that would constitute benefactories of the estate. ... profit.

Re:Assassinate the original owners (2, Interesting)

arethuza (737069) | more than 4 years ago | (#30735058)

How about go back and time taking your game with to just before the original author releases their game and sue them for ripping off your game? :-)

Re:Assassinate the original owners (1)

nschubach (922175) | more than 4 years ago | (#30735414)

You still get into the argument on whether someone else would have created it instead. You could be facing a vacuum scenario. If you eliminate a developer from a time line where there's a position, someone else could be there to fill it... and it might turn out for the worse for you or the fans.

Re:Assassinate the original owners (1)

Whalou (721698) | more than 4 years ago | (#30735546)

Once they're all dead, they'll be no-one left to sue you.

Are you an illawyer? Is this official illegal advice?

The legal system is unfair (1)

OrangeTide (124937) | more than 4 years ago | (#30734660)

Just making a clone can tie you up in court unnecessarily, such as MySQL AB v. NuSphere [politechbot.com] , where a non-GPL clone of the mysql client API is being attacked unfairly. There are many instances where a similarities to another software package of something has caused horrible legal battles that do nothing but make the lawyers rich and make programmers find new careers in disgust.

These days it seems dangerous to program without becoming incorporated or doing it under the umbrella of a big company. Who wants to lose their house because some company dragged you through court or demanded an absurd settlement for "damages".

Re:The legal system is unfair (3, Informative)

Firewing1 (1072250) | more than 4 years ago | (#30734708)

They didn't just mimic a public API... they included a statically linked version of MySQL [mysql.com] without releasing their derived code under the GPL as well:

The product contains MySQL[tm] under GPL and Gemini. Gemini is statically linked to the MySQL code. This means that Gemini needs to be under GPL as well, but it is not.

statically linked? (0)

Anonymous Coward | more than 4 years ago | (#30734952)

Even if it was distributed with a dynamically linked version they'd be fucked under GPL.

Re:statically linked? (0)

Anonymous Coward | more than 4 years ago | (#30735066)

[citation needed]

Re:The legal system is unfair (1)

Hognoxious (631665) | more than 4 years ago | (#30735004)

make programmers find new careers in disgust

People will pay you to be disgusted? I had no idea!

PlanetMULE (3, Funny)

BobisOnlyBob (1438553) | more than 4 years ago | (#30734664)

By any chance are you the guy running PlanetMULE?

Position wisely (2, Interesting)

santax (1541065) | more than 4 years ago | (#30734670)

On the globe that is. If you do not want to get sued (I am European so we don't have that problem really here) make sure you are NOT officially an US developer. Create a cheap company on some island in the middle of nowhere where the US has nothing to say. When the original creator starts wanting to get paid for your work, move to that island and just enjoy it! Laws are so utterly complex, one law overruling or disagreeing with another law that it would be foolish to think you by yourself can fight against that system. They will just bleed you dry if they really want to and have the resources to do so. However, and this is more serious advice. I like to make remakes of oldschool games myself. Sometimes with new elements, but I have also made a lot 1:1 remakes. In those cases I just wrote to the original creator. Asking if they were ok with it. This was all non-profit though, but for the 8 games I remade, 1 guy said he didn't want me to remake it. So I ignored him, remade it for myself but never gave it to anyone. I never ran into problems with that last tactic. And I think it really is the best advice I can give you. Track down and contact the original maker and ask them permission. That would save you so much trouble if they agree.

Re:Position wisely (0)

Anonymous Coward | more than 4 years ago | (#30734706)

Might I kindly enquire which remakes you made?

Re:Position wisely (1)

santax (1541065) | more than 4 years ago | (#30734764)

You may kindly enquire, but I hope you don't mind if I evenly kindly decline to answer. The reason being that I have given away to much personal information already here on slashdot in the past and due to my way of making a living (I play in a band) I type things under this nick I could never type with my real name or it would have serious consequences for me. But think: kings valley, eggerland mystery, hyper rally. Think MSX :) Hope you can forgive me.

*sigh* how about having an original idea? (-1, Flamebait)

Anonymous Coward | more than 4 years ago | (#30734674)

And if you can't manage that, please fuck off to database development. Gaming has enough me-too ripoffs as it is thanks.

Re:*sigh* how about having an original idea? (1)

PhilHibbs (4537) | more than 4 years ago | (#30734964)

Hey, I like playing re-makes of classic games, like Thrust Deluxe, OOlite, etc.

Change the name (1, Insightful)

Anonymous Coward | more than 4 years ago | (#30734678)

People will still find it, and if the game is any competent it should be a relevant reference on its wikipedia page (of the type "a similar modern game" rather than "NN set out to make a clone". It would also avoid any problems related to trademark.

IANAL, but it seems that "look and feel" lawsuits are very rare or there would be more relevant/recent examples.

Two cases (1)

tepples (727027) | more than 4 years ago | (#30735674)

it seems that "look and feel" lawsuits are very rare or there would be more relevant/recent examples.

The two big ones I can remember that went to trial were Atari v. Philips (cloner lost because the character in a maze game looked too close to Pac-Man) and Capcom v. Data East (cloner won on scenes a faire because cloner's fighting game characters merely resembled the same karate-movie archetypes). The rest, such as Tetris v. BioSocia (cloner's puzzle game implements the same game rules), have largely been settled out of court.

Sounds high risk (4, Informative)

williamhb (758070) | more than 4 years ago | (#30734710)

In my (non-legal-professional) opinion, what you are doing sounds high risk -- you are consciously replicating their expressed work (the game) and even admittedly giving it a deliberately similar title. It sounds like there are some copyright issues -- some things about games can be copyright and others can't; your remake might be considered a "derivative work" however. If you did wheedle out of that complaint, it sounds like you could still potentially be sued for "passing off" as you have a deliberately similar product with a deliberately similar name.

I'd advise having a look at the legal history of Scrabulous. They remade a not-so-obscure game, got sued, won on some parts but lost on others, but are still trading (being sued is not necessarily game over).

Original game (2, Insightful)

Jedi Alec (258881) | more than 4 years ago | (#30734714)

Do you know who owns the IP to the original game? Do they have a habit for litigating? Do they even know they have the IP or did they acquire it by buying distributor X that bought then bankrupt studio Y that got it from independent coder Z?

And is the original game Hardwar or X-com? Because in that case, keep programming, whatever happens ;-)

(Make sure you release the source before getting dragged off by some goons into a black helicopter though)

Re:Original game (0)

Anonymous Coward | more than 4 years ago | (#30734756)

*Drools at hte thought of an xcom remake*

Re:Original game (1)

Jedi Alec (258881) | more than 4 years ago | (#30734784)

Heck, any decent proper TBS with small squads would do it for me. Even the mods that came out after the source for Jagged Alliance 2 was released will only keep me busy for so long :-)

Re:Original game (0)

Anonymous Coward | more than 4 years ago | (#30734956)

TerraPhoenix [funorb.com] ?

They can only sue you for money that you have (4, Insightful)

Rogerborg (306625) | more than 4 years ago | (#30734716)

So if you ever make any, spend some of it on an accountant(*) and get him to set up two companies: one incorporated in Elbonia that has all the assets, and a shell development company with all the liabilities. Don't contest any lawsuit, just smile, punt the shell company into bankruptcy, and set up another one.

This isn't meant to be flippant; it's a model that works just fine for Hollywood. Ask any creative type who's ever tried to get any money out of a studio.

(*) Accountants are much like lawyers, except that they're cheaper, and they can be harmed with conventional weapons.

Re:They can only sue you for money that you have (1)

lena_10326 (1100441) | more than 4 years ago | (#30734794)

They can only sue you for money that you have

Really. Hmmm... $1.92 million verdict against Jammie Thomas-Rasset. http://arstechnica.com/tech-policy/news/2009/06/jammie-thomas-retrial-verdict.ars [arstechnica.com]

Re:They can only sue you for money that you have (0)

Anonymous Coward | more than 4 years ago | (#30734868)

FYI Jammie Thomas-Rasset is not a company,

Re:They can only sue you for money that you have (1)

lena_10326 (1100441) | more than 4 years ago | (#30735056)

I'm an indie game developer...

Re:They can only sue you for money that you have (1)

Rogerborg (306625) | more than 4 years ago | (#30735684)

And as an individual, she can't just slough it off by declaring bankruptcy. If she'd acted as the CEO of a limited company, she could have just walked away. Lesson learned?

Find prior art first (1, Funny)

Anonymous Coward | more than 4 years ago | (#30734722)

Find some earlier game that the game you are cloning copied.

Make yours look more like the earlier (hopefully unprotected) game - when it goes to court
most of the attack against you will also be an attack against the attacker.

Decide now how to deal with it (1)

perrin (891) | more than 4 years ago | (#30734758)

To deal with a cease and desist action you need to have guts, means, and rights - pick any two, and it may do. If you have the guts and the means you can make a lot of smoke, and they may decide it is not worth fighting you. If you the guts and are in the right, you can explain to them that you are in the clear and answer their letters through an expensive lawyer as a bluff to make them think you have the financial means to fight. If you have the means and the rights, you do not need guts (but then you would not be asking slashdot for advice, would you). However, if you have less than two of those things, you need to be aware that you are going to fold the moment that you receive a cease and desist, and decide now if that means the risk and potential cost of losing is too high to get started.

IANAL but I've been in this situation myself, and had to deal with a cease and desist at one time.

A tribute? (0)

MojoRilla (591502) | more than 4 years ago | (#30734766)

Why not frame it as a tribute instead of a knockoff? Include a screen in the about section talking about the orignal game and why you loved it.

Many years ago I was sent a cease and desist from a major board game publisher because I had used their trademark in my shareware games name. However the game rules were ancient and in the public domain. I sent them a letter saying I was already changing the name, and never heard back from them.

Ask them! (1)

david.negrier (1199497) | more than 4 years ago | (#30734802)

Yes, exactly. And if you are really worried about legal problems, why not ask the orginal developers BEFORE developing the game? You can mail them saying you'd like to make your game as a tribute to their old game, that you can't afford to pay them any royalties. They may be ok with it. As long as you have an answer, you know what to do. In my experience, I've been working on an open-source clone of the Magical Drop game (Krystal Drop: http://krystaldrop.sourceforge.net/ [sourceforge.net] ), it was 8 years ago, and I've never had a single complaint.

Re:A tribute? (1)

DriveMelter (1345271) | more than 4 years ago | (#30734820)

For trademarks one of the claims people can make is that you are "passing off" i.e. pretending to be that company or in some how related to that company. Hence you should make it very clear that you are not that company/organisation. There is information on trademarks etc at the British Library IP Centre http://www.bl.uk/bipc/ [www.bl.uk]

Re:A tribute? (1)

Xest (935314) | more than 4 years ago | (#30735132)

That's probably even worse because then you're basically just admitting you completely ripped that game off.

move out (0)

Anonymous Coward | more than 4 years ago | (#30734804)

Develop the game outside US... then you don't have to worry about bullshit software patents and such

So what you're saying is (3, Insightful)

Lord Bitman (95493) | more than 4 years ago | (#30734810)

I am copying what they did as exactly as I can, though because I don't understand what "copyright" means, I think it has nothing to do with this. Meanwhile, I am using their name for the exact reasons that laws exist to prevent such a thing happening, but I don't think that matters either. Finally, I haven't even bothered to contact the people who made the game, because to me it's more important that I "don't get sued" than that I'm, you know, a decent human being or anything.

Ask existing clones of which there are many (0)

Anonymous Coward | more than 4 years ago | (#30734834)

Take the X-Com clones for example. AFAIK there has never been any mention of the possibility of a "look and feel" lawsuit. You could ask those teams how they have approached it and have found?
  UFO Alien Invasion as one example.

Hi tepples. (0)

Anonymous Coward | more than 4 years ago | (#30734842)

Hi tepples.

How's it going?

Do your research (5, Informative)

lewster32 (1719106) | more than 4 years ago | (#30734854)

I'm working on a project of a similar nature for an early Julian Gollop game called Chaos: Battle of the Wizards, and I devoted a good amount of time early on in tracking Julian down and seeking his permission. It's obviously a complex and confusing process that's individual to each game, but at the most basic level there is always the intellectual property to be aware of. Also, things change significantly if you wish to make a commercial venture of the game. As said in other comments, a free 'tribute' is a lot less open to flak (unless you're 'tributing' a Nintendo game, in which case buy body armour and watch out for red dots) and will generally be ignored. If however you remake a game and whack it on the App Store for $2.99 again, you're gonna have to watch your back (if it even gets approved in the first place) For my own part, I finally got in touch with Julian via LinkedIn, and he turned out to be most gracious, supportive and polite, and he gave his blessing for me to continue (http://www.rotates.org/2009/05/20/the-man-speaks/ [rotates.org] ). It's really worth taking the time to find the original developer and taking it from there.

Re:Do your research (1)

jaggeh (1485669) | more than 4 years ago | (#30735062)

holy shit

i LOVE that game, i had on my ZXspectrum 48k 20 years ago.

*crying nostalgic tears*

Link me to your work good man i will be an avid supporter.

Re:Do your research (1)

lewster32 (1719106) | more than 4 years ago | (#30735088)

Link me to your work good man i will be an avid supporter.

There's an early demo here [rotates.org] , though that codebase is abandoned now in favour of a client/server architecture. You should check out http://games.groups.yahoo.com/group/gooeyblob/ [yahoo.com] and http://chaosremakes.wikia.com/wiki/Chaos_Remakes_Wiki [wikia.com] if you're a fan of Chaos :)

Stand on your own (4, Insightful)

Kjella (173770) | more than 4 years ago | (#30734864)

Get your own name. You can go fairly far in cloning gameplay - think how much one FPS or TBS or RTS or RPG looks like the other, but don't steal unique units, characters and storylines. And while I don't approve of astroturfing where you pretend to be a customer, you can generated buzz about it. Go into every forum you can find about the old game, say this game is inspired of it. Right now I'm playing Dragon Age, and boy are there many old chestnuts of dwarves and elves and warriors and rouges and mages and the whole storyline about a blight and an archdemon are hardly original. Go for the one-up, "if you liked [old game], you'll love [new game]". Right now you come of sounding like one of the cheap watch salesmen "same same but different".

Re:Stand on your own (1)

Gorath99 (746654) | more than 4 years ago | (#30735036)

Exactly. And try to get your game reviewed by some people. Then they can tell others how much it reminds them of that oldie that you got your inspiration from. Much classier than just making a game called "Pocman" or "Super Vittorio Bros."

Take a page from Trine [trine-thegame.com] . It's obviously inspired by Lost Vikings, but it's not a straight ripoff, and they don't (need to) market themselves as such. In the meantime, every other review of the game mentions Lost Vikings, and I'm sure that's how they get many of their sales. It's how how they got mine, in any case.

In the UK... (2, Informative)

CapnOats.com (805246) | more than 4 years ago | (#30734872)

...you should be fine.

This article details legal proceedings in just such a case.
http://www.daledietrich.com/gaming/novas-pool-cue-game-mechanics-not-protectable-by-uk-copyright/ [daledietrich.com]

A choice quote by Lord Justice Jacob is

"A series of drawings is a series of graphic works, not a single graphic work in itself. No-one would say that the copyright in a single drawing of Felix the Cat is infringed by a drawing of Donald Duck. A series of cartoon frames showing Felix running over a cliff edge into space, looking down and only then falling would not be infringed by a similar set of frames depicting Donald doing the same thing. That is in effect what is alleged here."

This is similar to the Lexulous (formerly Scrabulous) case, where the games makers were forced to make minor changes, including a rename, as it was too close a copy of Scrabble.

More details can be found at
http://en.wikipedia.org/wiki/Lexulous#Legal_and_copyright_issues [wikipedia.org]

I will watch this thread like a hawk. (1)

Sasayaki (1096761) | more than 4 years ago | (#30734920)

My eye is now firmly fixed on this thread.

I am doing something *similar* to the OP, an iPhone-and-Android-and-PCs semi-remake of an old classic ('Eye of the Beholder' for anyone who's curious), although my project has a few substantial differences:

My game...

- .. is substantially higher resolution and visually very pretty (IMHO).
- .. 's name is completely different (Tale of Vamadon), takes place in an entirely original campaign world, and features an entirely different and original storyline.
- .. has complicated, Baldur's Gate II-style NPCs and dialogue choices rather than the simple hack-and-slash of its predecessor.
- .. engine has a large number of enhancements; items can now be inspected, with each having a description, lore behind it, information behind game mechanics, etc.
- .. has a built-in 'map' function.
- .. has (near) full v3.5 ruleset compatibility (although we may move to Pathfinder if its licence allows free use in games)
- .. only lets you generate a 'main' character; all other NPCs are picked up either at the beginning of the game or in the game world, with each having their own personality, backstory, motivations, unique races, etc.
- .. has dozens of endings all depending on what your character says and does during the game.
- .. features many cutscenes and other such graphical enhancements.
- .. has currency, a town, a store where you can buy and sell looted equipment, get optional quests, etc.

In my humble opinion it's about as much a "clone" of Eye of the Beholder as Halo is of Half-Life. That is to say, the only adjectives it has in common with the 'original' are 'First Person Perspective RPG with D&D Rules'. Is that enough to make me 'safe'? Thoughts?

Re:I will watch this thread like a hawk. (1)

WinterSolstice (223271) | more than 4 years ago | (#30734974)

Eye of the Beholder is, itself, just another in a series of that style of game.

Since it sounds like you aren't doing anything that has anything to do with it - how is it a remake? You're just making an RPG.

Re:I will watch this thread like a hawk. (1)

selven (1556643) | more than 4 years ago | (#30734978)

Sounds like you're only copying the game's rules. Rules aren't copyrightable.

Re:I will watch this thread like a hawk. (1)

jaggeh (1485669) | more than 4 years ago | (#30735074)

D&D books must be freeware then?

Re:I will watch this thread like a hawk. (1)

selven (1556643) | more than 4 years ago | (#30735140)

The expression of rules is copyrightable. But if you want to make your own books describing D&D rules, you most definitely can.

Re:I will watch this thread like a hawk. (0)

Anonymous Coward | more than 4 years ago | (#30735192)

no, not the physical books, but the rules, yes - in a way atleast. WotC even released the rulebooks (in unedited, digital form) a way back themselves.

Re:I will watch this thread like a hawk. (1)

raynet (51803) | more than 4 years ago | (#30735224)

The rules of D&D books are free, how they are put on the pages, art, names, adventures, etc are protected.

Re:I will watch this thread like a hawk. (0)

Anonymous Coward | more than 4 years ago | (#30735002)

So just exactly how is your game anything at all like EotB?.. It sounds like pretty much a generic RPG, and far more similar to the Baldurs gate or Icewind Dale series than Eye of the Beholder series.

Re:I will watch this thread like a hawk. (1)

iainl (136759) | more than 4 years ago | (#30735220)

In _my_ humble opinion, your game sounds no more a clone of EotB as it is of The Bard's Tale, Dungeon Master, Captive or any other from the genre.

Pluggin ur gamez... (1)

soccerisgod (585710) | more than 4 years ago | (#30735516)

... ur doin it rite!

Good luck with that. (2, Informative)

jibjibjib (889679) | more than 4 years ago | (#30734972)

How do I make sure I'm legally in the clear without hiring an expensive lawyer

Aren't "legally in the clear" and "hiring an expensive lawyer" the same thing now?

Re:Good luck with that. (1)

arethuza (737069) | more than 4 years ago | (#30735236)

No - all that hiring an expensive lawyer does is give you someone to sue if you follow their advice and still get sued into oblivion by the other party.

Re:Good luck with that. (2, Funny)

xtracto (837672) | more than 4 years ago | (#30735322)

No - all that hiring an expensive lawyer does is give you someone to sue if you follow their advice and still get sued into oblivion by the other party.

So your plan is to sue a lawyer??? you will need a lawyer for that I guess.... oh shit.

Clone DNF (1)

Hognoxious (631665) | more than 4 years ago | (#30735080)

Clone Duke Nukem Forever ... not much risk there!

You don't... (4, Insightful)

osu-neko (2604) | more than 4 years ago | (#30735146)

How do I make sure I'm legally in the clear without hiring an expensive lawyer that my indie developer budget can't afford?

How do I make sure I don't get pregnant while having sex every day without using any form of contraception?

(Obvious answer: you don't. If you want to make sure you're legally in the clear, you hire an expensive lawyer. If you don't want to hire an expensive lawyer, then you live with not being sure you're legally in the clear.)

Re:You don't... (2, Funny)

Rhaban (987410) | more than 4 years ago | (#30735242)

How do I make sure I don't get pregnant while having sex every day without using any form of contraception?

Be male.

simplify your situation .. (0)

Anonymous Coward | more than 4 years ago | (#30735150)

Sure - you could spend thousands of USD on lawyers in order to attempt to mitigate the legal risks you're facing, but there's just no way around the fact that you'll always be facing the risk of having to spend thousands of USD's in a court of law, fighting lawyers who eat people like you for breakfast.

Your problem is that you're currently in a jurisdiction which exposes you to this type of litigation.
What you have to do is to change the jurisdiction under which your business operates.
You do this by making sure that the ownership of the software is not held by a legal entity in your jurisdiction.
You need to set up something like the following:
- A trust/foundation or insurance company in a suitable jurisdiction, that in turn owns the shares of:
- an offshore company, that owns the (rights to the) software and also owns:
- a representative office in the US (your employer)

You must not be a beneficial owner of the offshore entity, but rather an employee of the US rep-office.

Some of the benefits of this setup are:
1. If someone wants to sue - they'll have to approach the offshore entity, in that jurisdiction (according to the laws of the jurisdiction where the offshore company is incorporated).
2. The offshore company will lease out the license to the software, to the us based organisation. This means that you can avoid one of the highest corporate tax-rates in the world (ie: the US corporate tax) by bringing down the annual profits to be taxed using the licensing fees charged by the offshore company).
3. You will not be personally liable, should you lose a lawsuit in the US, as you are not the beneficiary/owner of the company or any of its assets. The assets accumulated abroad will be owned by an entity that is disconnected from your personal finances. Ie: just because some happy-to-sue a55hole decides to go after you, causing you to go into personal bancrupcy, your children's college fund will not be threatened/touched.

As soon as a litigant sees that you have this type of setup - they will find someone else to go after, as they are keenly aware of the costs they would incur just to initiate a court case that would, most likely, be thrown out of court immediately (in many jurisdictions, the claimant will have to put up a bond that covers the estimated legal fees up front - they will lose this money should they lose the claim).

In my experience, a setup like the one described above will cost something like 4000 USD to setup and operate for the first year, then 2000 USD to keep up annually. If you're a US citizen the price will be higher.
Go here to put out a tender for someone to fix your situation: lowtax.net
Post a summary of your situation under the Comments section and watch various accounting firms bid for your business.
Be aware that the companies offering you their assistance in this matter will judge your attractivity as a customer as follows:
- A big minus is that you're a US citizen
- A big plus is that you're doing software (game) development and not online gambling, online banking, online porn or any other high-risk venture

The plan (1)

YourExperiment (1081089) | more than 4 years ago | (#30735502)

Your best bet is not to bother relying on the legal advice of a bunch of random strangers on a site like Slashdot. It's still a good idea to ask the question though, as a front page story gains you a huge amount of free publicity for your project. Make sure you don't forget to put a link to your game in the summary, however, or the whole exercise becomes rather pointless.

It's a sea of derivative works... (0)

Anonymous Coward | more than 4 years ago | (#30735550)

Given how readily the big guys "rip each other off" on genre and gameplay component ideas, as long as you're not literally stealing copyrighted assets from their version of things, you should be fine.

Develop first, ask questions later. (1)

jotaeleemeese (303437) | more than 4 years ago | (#30735632)

In other words use common sense ( I don't need to be a frigging lawyer to know that).

Develop the game, release under an open license.

If anybody is interested about it in the legal sense, then they will bother you about it, at that point you stop any alleged infringing activities if youcan defend yourself legally (it can't be copy right, it can.t be patents, it can't be trademarks, the vague "look and feel" or a general idea about a game is not protectable, the myriad of "look and feel" clones of famous games or even of famous hardware should put your mind to rest), now if the company wants to pursue the army of developers of the application in localities outside the US, well, all the power to them, for starters there are certain to have no patent, trademark or copyright claims in the EU and many other localities.

Ask permission (1)

Andy Smith (55346) | more than 4 years ago | (#30735642)

Could you ask permission from the copyright holder?

Some remakes (ie: direct copies of old games) are done with the blessing of the person who created the original game. Just tell them the truth: you like their game and you want to make a modern version of it. They may say yes.

Just hire a lawyer for a consultation (1)

MikeRT (947531) | more than 4 years ago | (#30735680)

If you find a competent, reputable IP attorney, it shouldn't cost more than $500 to sit down with them for a 1 hour consultation. I got a 1.5 hour consultation with an outstanding, very in-demand real estate attorney on the outskirts of metropolitan DC for $400. You don't need to retain his services, just get him to go over your plan and tell you what he thinks is your risk.
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