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Avoiding DMCA Woes As an Indy Game Developer?

timothy posted more than 3 years ago | from the jealously-guarded dept.

Games 494

androidstevep writes "I was just on the receiving end of DMCA takedown notice for my game in Android Market, 'Super Pac.' Namco Bandai have filed the notice with Google, claiming breach of copyright of their game 'Pac-Man.' Although my version is obviously inspired by the original arcade game, no original artwork or sound has been copied. The problem from my point of view is that the DMCA notice is not clear where or why the breach is alleged. My guess is that maybe the name is too similar, although I did a trademark search for 'Super Pac' before release and came up with nothing. Furthermore, Google have disabled my access to this app, presumably as required by the DMCA, so I am unable to even make whatever modifications would be required. As a part-time developer with limited means (i.e. can't afford expensive lawyers), but willing to make best efforts to avoid legal issues, how does one negotiate what seems to be a difficult minefield of trademarks, copyrights and DMCA? Does anyone have tips in this area?"

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494 comments

Try having an original idea (4, Insightful)

Animats (122034) | more than 3 years ago | (#34451784)

"Instructions: Based on the classic arcade game Pac-Man, the aim is to eat all the pills in the maze, while avoiding the four ghosts. There are also power-pills available in each corner which temporarily turn the ghosts blue, and more importantly, edible! Bonuses are awarded for eating ghosts. Fruit bonuses also appear and can be eaten for additional points."

Of course you got an infringement notice.

Re:Try having an original idea (1)

Anonymous Coward | more than 3 years ago | (#34451834)

obviously, google itself is not worried: http://www.google.com/pacman/

Re:Try having an original idea (3, Informative)

Anonymous Coward | more than 3 years ago | (#34451844)

Probably because Google actually licensed Namco's game, unlike this douchebag who just stole it.

Re:Try having an original idea (4, Insightful)

hedwards (940851) | more than 3 years ago | (#34451848)

I'm sorry, but that's not a copyright violation and it's certainly not a violation of the DMCA. There is however a pretty blatant trademark violation, assuming that the owner has maintained the mark.

This is a pretty blatant abuse of the DMCA unless the OP used some of their code or images to do it. The proper thing is to file the paperwork with Google affirming that there is no copyright violation.

If the OP has the funds to do it, he could also file suit against Namco Bandai for violating the requirements under the DMCA for filing a take down notice. There is a defined situation for cases where the party filing the takedown notice does so in bad faith that allows for damages. Personally, I wouldn't bother unless I was making a living on the product as it's tough to actually get enough money for the violation to make it worthwhile.

Re:Try having an original idea (2, Informative)

moortak (1273582) | more than 3 years ago | (#34451988)

Why isn't it a copyright violation. He used their characters, their name (SuperPacman came out in 1982), and mechanic. This about as much of a derivative work as you get.

trademark not copyright (4, Informative)

nten (709128) | more than 3 years ago | (#34452164)

SuperPacman is a trademark, you cannot copyright a name. I think a court would rule that "super pac" is too close to the original trademark. However, copying the "look and feel" of a game using different code and different art, is not copyright infringement. There are multiple precedents for this. If he had borrowed either code or art it would be considered a derivative work under copyright. Its software patents that are used when software preforms the same function as software you wrote first, but I doubt pacman was patented.

This wasn't legal advice, I'm just regurgitating the sage advice of past /.ers who said TWAL.

Re:trademark not copyright (5, Informative)

Xest (935314) | more than 3 years ago | (#34452262)

"However, copying the "look and feel" of a game using different code and different art, is not copyright infringement."

No, this is completely wrong. If you copy the characters- i.e. Pacman, then it IS copyright infringement, that is Namco's IP.

What you're thinking of is gameplay- that's something you can copy. You absolutely can create a game where you go round a maze collecting things whilst being chased by enemies, that's no problem, but copying the fundamental IP such as the characters or the storyline is a problem. That's why this is copyright infringement.

Re:trademark not copyright (0)

Anonymous Coward | more than 3 years ago | (#34452288)

Okay, you addressed the name. Now, what about the characters and game mechanics?

Re:Try having an original idea (0)

Anonymous Coward | more than 3 years ago | (#34451992)

I was rooting for your cause until I clicked on your website. "Inspired by" Pacman? Try completely ripping it off.

Re:Try having an original idea (1)

icebraining (1313345) | more than 3 years ago | (#34452112)

I have to agree. I love extensions of game concepts, like Plasma Pong [wikipedia.org], which unfortunately also got ban-hammered for trademark violation. But I don't see any improvement in this game over the original Pacman.

Re:Try having an original idea (4, Informative)

KDR_11k (778916) | more than 3 years ago | (#34452006)

There is a copyright violation. Look at the screenshot, everything has been designed very closely to Pac-Man and clearly falls under the derivative work rules.

Re:Try having an original idea (2, Funny)

Anonymous Coward | more than 3 years ago | (#34452122)

Maybe he used a clean room design [wikipedia.org].

Re:Try having an original idea (2)

Surt (22457) | more than 3 years ago | (#34452256)

Doesn't help when the actual appearance of characters is so similar. Remember: a significant fraction of the copyright laws were written specifically to protect Mickey Mouse from lookalikes. You can't just make a pacman game with characters that look just like pacman characters, even with a clean-room design. It will still be a copyright violation.

Re:Try having an original idea (1)

Anonymous Coward | more than 3 years ago | (#34452190)

Why can't he just change the colors?

Re:Try having an original idea (5, Informative)

Xest (935314) | more than 3 years ago | (#34452228)

Yes it is a copyright violation.

It's a copyright violation because he hasn't simply copied the game concept, but has largely copied the art and the name too. It would be allowed for example to create a Pacman clone, make the Pacman character green, maybe give him some red eyes or something, replace the power pills with energy drinks and replace the ghosts with aliens, then call the game "Green Gobbler" or whatever- this wouldn't be a copyright violation, but to outright copy what pacman is and is about- a yellow circle with a mouth chasing ghosts and then also putting Pac in the name absolutely is a blatant copyright violation.

I speak from experience having research it extensively before after having been in precisely this situation. Many many years ago, I worked on a clone of Teamfortress and after Valve aquired it and the IP they requested a shutdown of our mod- they had every right to do this because we hadn't simply copied the Fortress section of the name, but we had copied the class names and so forth too even though the artwork was original- we had copied the fundamental IP. We could get round this by simply changing some class names, and changing the mod name to remove Fortress, this was enough to satisfy Valve themselves even, but the fundamental point is if you're going to copy not just the concept, but the fundamental IP as well (i.e. characters, story, that sort of thing) then yes, it absolutely is a copyright violation.

You may not think it should be a copyright violation, but you're completely wrong to suggest that it is not. This is why people usually put IANAL in there post (IANAL btw!) because they know full well they're simply stating what they think may be true, but which possibly is not. Your advice is dangerous because you're telling him to fight against legal notice which he almost certainly has no chance of succeeding with and if he does take it all the way to court, it would probably destroy him as he really does not have a leg to stand on.

So to the person asking the original question in the summary- if you want to know what you did wrong theres your answer. The worst thing you can do is fight this, because legally, you seem to be completely in the wrong, and will hence almost certainly lose. There is no DCMA abuse here, beyond the fact that the DMCA is inherently abusive in it's very existence.

Re:Try having an original idea (1)

morgan_greywolf (835522) | more than 3 years ago | (#34452264)

Actually, assuming that Namco Bandai is claiming copyright on Pacman's visuals -- and yes, there is such a thing, and no, you aren't limited to trademark protection on visuals -- it very likely is. And no, just because he didn't use the original images, the screenshots are definitely close enough to the original to establish a visual similarity.

And just in case you think that image elements like the shape of Pacman and the ghosts and indeed the layout of playing board aren't copyrightable, try putting a Mickey Mouse -- whether you created such yourself or not -- on the sign for your place of business and watch how fast Disney's lawyers educate you as to the true legalities of visual copyright.

Re:Try having an original idea (1)

Anonymous Coward | more than 3 years ago | (#34451910)

The underlying assumption is that the current laws of copyright trump the realities of human creativity. Your argument would have prevented people like Beethoven and Picasso from reaching their potential. Don't bother whining about the validity of such a statement made without sources; if you can insist that stupid laws should be followed, I can insist that stupid people do their own research.

Re:Try having an original idea (5, Funny)

Anonymous Coward | more than 3 years ago | (#34451922)

I have one. It's about a guy, named Marty O (and his brother Louis), who is an exterminator. He can run around and go through tubes and hit ceiling tiles with his head to release dollar bills and other power items. There's a queen, and some fungus people, too. I will be releasing it as Super Marty O Brothers. Does anyone see any problems with this?

Re:Try having an original idea (3, Insightful)

thue (121682) | more than 3 years ago | (#34451984)

Erm, no. Gameplay isn't copyrightable, so what in that description makes you think it is a copyright violation? http://www.wisegeek.com/how-do-i-copyright-a-game.htm [wisegeek.com]

Re:Try having an original idea (1)

icebraining (1313345) | more than 3 years ago | (#34452170)

It's an obvious trademark violation, I'd say. And if it is, they could have sued him immediately instead of sending a notice, so I'd say he was lucky.

Re:Try having an original idea (1)

Tharsman (1364603) | more than 3 years ago | (#34452252)

What about character design? Because after following the link the article provided, I can't see a single difference between a Pac Man screenshot and Super Pac. Exactly the same maps, same ghost designs and same main character design.

That is not to mention the name itself, Super Pac, may not be complete but anyone can take that as an abreviation to Super Pac-Man.

Honestly, I feel no sympathy for these situations. How can you protect yourself? Inovate. At the very least change the look of the characters, and would also be nice if you changed the map layouts to be original and added new mechanics. Make enough changes so that no one that sits to play the game without seeing the title can say "Oh, it's Pac Man!"

Re:Try having an original idea (1)

Surt (22457) | more than 3 years ago | (#34452270)

It's not in the description, but if you went and looked at the page it's clear that he's making a lookalike, and the copyright laws were heavily invested in by disney to prevent exactly that, and the law has come down clear and hard against Mickey Mouse lookalikes.

Re:Try having an original idea (2)

camperslo (704715) | more than 3 years ago | (#34451998)

Instructions: Based on the classic arcade game Pac-Man, the aim is to eat all the pills in the maze...

I'd suggest a new variation, zombies eating lawyers.

Re:Try having an original idea (1)

Anonymous Coward | more than 3 years ago | (#34452140)

My exact thoughts upon seeing the title question: "Hmm... Why would a developer of original games even have to worry about that?" Then I read down, and realized that there is nothing original about this game. Seriously, copying one of the most well known games ever made is a great way to learn about everything that goes into making a game, so why not then take that knowledge gained, and put it into making something new and original. Show your friends your Pac-Man clone and say "Isn't it clever what I figured out how to do?" but don't try to sell it.

What relation does this have to the DMCA? (1, Insightful)

Anonymous Coward | more than 3 years ago | (#34451790)

It's just a trademark violation.

Re:What relation does this have to the DMCA? (1)

Anonymous Coward | more than 3 years ago | (#34451884)

It's just a trademark violation.

This is what I'm wondering too. I thought DCMA was about stopping people from breaking encryption so they couldn't then make digital copies!!! How did they manage to think you broke the encryption on their pac man game and digitally copy it so it worked on Android? Your a genius if you did that, the technology will be worth billions!!!!!

Re:What relation does this have to the DMCA? (2)

meerling (1487879) | more than 3 years ago | (#34451936)

The DMCA has been ripe for abuse since before it was signed. Since then it's been used illegally many many times with little or no repercussions to those who abuse it.

I don't know if his game violates any rules, but it's possible. Of course, there are tons of similar games that don't, so who knows, other than ip lawyers.

Re:What relation does this have to the DMCA? (1)

gnasher719 (869701) | more than 3 years ago | (#34452084)

The DMCA has been ripe for abuse since before it was signed. Since then it's been used illegally many many times with little or no repercussions to those who abuse it.

The way I see it, without the DMCA the guy would have been sued for copyright infringement. Maybe he would have received a letter first "Please withdraw your app or we will sue you for copyright infringement". This way, there is a good chance that he gets away undamaged.

Re:What relation does this have to the DMCA? (1)

zach_the_lizard (1317619) | more than 3 years ago | (#34452260)

On the other hand, the DMCA basically assumes guilt and demands that a DMCA takedown notice be obeyed without consideration. Plus, it makes it easier to lose a copyright case.

Super Pacman was an arcade game. (0)

Anonymous Coward | more than 3 years ago | (#34451792)

Super Pacman was an arcade game and your name is much too close to it if it's also yet another pacman type game.

Don't rip-off other games with cheesy clones (0)

Anonymous Coward | more than 3 years ago | (#34451798)

No issues to worry about.

Nothing personal (5, Insightful)

deathguppie (768263) | more than 3 years ago | (#34451808)

Nothing personal, but seriously dude your game looks EXACTLY like Pacman. Not a little like, but exactly like. If you had made the game with marshmello's and a doughnut then I'd be saying "ya, those bastards!" but you just copied the game and gave it a new name. IANAL but if you copied my game, and put a new name on it I'd be a little upset too.

Re:Nothing personal (2)

brownerthanu (1084341) | more than 3 years ago | (#34451906)

Agreed. That game is Pacman. Time to drop the charade of technicalities.

Re:Nothing personal (1)

Anonymous Coward | more than 3 years ago | (#34452166)

I believe a charade of technicalities is precisely why we have lawyers... to see who can come up with the better charade.

Re:Nothing personal (1)

Anonymous Coward | more than 3 years ago | (#34451908)

Barely put a new name on it. Namco has a game called "Super PacMan"...ya don't think that's a little close? Stop on by my new restaurant...I call it "McDonals". Just look for the big, yellow arched M. It's right next door to my Burger Kin.

Re:Nothing personal (1, Funny)

Anonymous Coward | more than 3 years ago | (#34452044)

Burger Kin.

Damn. North Americans got so fat you had to come up with a new word for them? ;)

Re:Nothing personal (1)

The End Of Days (1243248) | more than 3 years ago | (#34452200)

They have the Big Mac, mine is the Big Mick. They both contain two all-beef patties, special sauce, lettuce, cheese, pickles and onions. But they use a sesame seed bun. My buns have no seeds.

Re:Nothing personal (2)

hedwards (940851) | more than 3 years ago | (#34451994)

You can't copyright look and feel. The OP has almost certainly violated Namco Bandai's trademark, but you can't file a DMCA takedown notice over a trademark violation. And even that is a bit questionable as ghosts are fairly generic, only the name and the actual pac man looking character are likely to infringe. They don't own any of the IP here as far as I can tell, which means that they're likely to face sanctions for violating the provision. 2.2.1 Notice from Copyright Owner [wikipedia.org] And section 512 of the DMCA contains provisions for companies like Namco Bandai that misrepresent their ownership over the materials. As was the case in Online Policy Group v. Diebold, Inc.,

Re:Nothing personal (1)

Blakey Rat (99501) | more than 3 years ago | (#34452174)

Well, seriously. The art is so identical that there's *no way to tell* whether it was simply copied (copyright), or re-created but looks suspiciously similar (trademark). Seriously, click through to his site and look at the screenshots... if his version of Pac-Man had a round mouth instead of a triangle, or was colored purple and had an eye on a stalk or something, well, ok. But in this case, I'm kind of cheering Namco on.

Re:Nothing personal (1)

icebraining (1313345) | more than 3 years ago | (#34452188)

The OP has almost certainly violated Namco Bandai's trademark, but you can't file a DMCA takedown notice over a trademark violation.

No, they could outright sue him. Does OP prefer that option? Since he can't afford a lawyer, probably not.

Re:Nothing personal (2)

Tharsman (1364603) | more than 3 years ago | (#34452304)

Sorry, if you even look at the game's page, it's not just "look and feel", it's just a blantant copy. It's identical in every way. Ghost are the same, yellow guy is the same, maps are the same. It's exactly the same game. Just because he re-programmed it instead of plainly copying it does not change the outcome, it's the same frigging game. He just went the extra mile to copy it.

Oh and the game is called Super Pac. That's just an abreviation of Super Pac-Man!

Re:Nothing personal (0)

Anonymous Coward | more than 3 years ago | (#34452244)

Nothing personal, but seriously dude your game looks EXACTLY like Pacman. Not a little like, but exactly like.

He also copied the maze (original (scroll down) [gameinternals.com] and copy [spwebgames.com]). It's not an exact pixel-for-pixel copy, but it's pretty darn close.

I'd be willing to bet that the OP's under the misconception that only mechanical copies count as copies.

Re:Nothing personal (3, Interesting)

goblin777 (1953346) | more than 3 years ago | (#34452282)

Um, you also "designed" a game called "Super Froggy" that strangly looks just like Frogger. Just suck it up and admit you're totally ripping off Pac-Man, and realize the fact that some companies get a little upset when you try and profit off of their games with inferior products. (Inferior is not just a stab. At least 2 people in your game comments complained that Super-Pac freezes after Level 3. That's either bad code, or the lamest kill screen ever. That last part WAS a stab.)

My suggestion (-1)

Anonymous Coward | more than 3 years ago | (#34451810)

My suggestion would be to take it up with these guys [indianapol...eedway.com]

Translation (0)

Anonymous Coward | more than 3 years ago | (#34451812)

"no original artwork or sound has been copied" = "I xerox'ed your game 100%, for profit, and I'm shocked you want to do something about it"

Re:Translation (0)

hedwards (940851) | more than 3 years ago | (#34451892)

Those aren't equal. If you look at the screenshot, it's pretty obvious that he didn't take the graphics from Namco Bandai. And as such they don't have grounds for filing a DMCA takedown over it. Any patents related ought to have expired by now, and the only violation of their IP that I can see is the trademark. I assume that they've kept up with that otherwise it would be a very serious violation and probably big enough to take the company down.

The most that Namco Bandai can ask is for the name to be changed and possibly for the images to be made less similar to their trademark. But that's not something that the DMCA takedown notices do.

Re:Translation (2)

wasabii (693236) | more than 3 years ago | (#34452078)

Hah. Yeah right. Recreating images in the likeness of is just as much a copyright violation as hitting copy/paste is.

Clone games go down like this all the time.

Re:Translation (1)

KDR_11k (778916) | more than 3 years ago | (#34452104)

Nonsense, just because the graphics aren't direct rips doesn't mean it's not a derivative work and those are covered by copyright law too.

Re:Translation (0)

Anonymous Coward | more than 3 years ago | (#34452172)

Those aren't equal. If you look at the screenshot, it's pretty obvious that he didn't take the graphics from Namco Bandai. And as such they don't have grounds for filing a DMCA takedown over it.

I'm writing a book about boy wizard named Barry Kotter who lives in the suburbs and goes off to a mysterious school of magic called Dogwarts. So clearly that's not equal to ...that other book.

huh? (1)

Anonymous Coward | more than 3 years ago | (#34451822)

wait wait
wait
You remade pac-man, down to the name, all mechanics, images (but I didn't copy them!) -- they match likeness; and you're wondering why you got a copyright infringement notice? What? How does this even get posted on /.

Re:huh? (1)

KDR_11k (778916) | more than 3 years ago | (#34452028)

Some people think copyright infringement only covers directly ripping assets from games, not remaking it to look practically the same.

Re:huh? (1)

multisync (218450) | more than 3 years ago | (#34452186)

yeah, silly people, thinking 'copyright' means the exclusive right to make identical copies of something ...

Lawyers, lawyers, lawyers (1)

Mindcontrolled (1388007) | more than 3 years ago | (#34451824)

Hate to say it, but the best advice is to lawyer up. IANAL, but I am working in the IP field, not in the US though. This, of course is no legal advice, but I can't see how you breach their copyright. On the trademark front, though, you might be close to violating theirs - your name is close to the original and strongly alludes to it. With strong trademarks like "Pac-Man", this might be enough to infringe. To get that sorted, however, you will really need a lawyer - the playing field is just to uneven between you and Namco otherwise. Again, IANAL, especially not yours, and this is no legal advice :P

Re:Counter-DMCA notice (1)

aitikin (909209) | more than 3 years ago | (#34452134)

I'm sorry, but I have to laugh looking at that first URL. Somehow anti-DMCA stuff gets filed into terrorism at CMU apparently.

Don't rip off games (1)

Anonymous Coward | more than 3 years ago | (#34451836)

You could try developing something original. Why do you think you can just make money rewriting someone else's idea on a new platform. I looked at the site for your game and I don't know how you cant see that you just ripped off Pac-Man. If I were to release a game based on Super Mario called Super Super Mario and it looked and played exactly the same as the original wouldn't I be guilty of copyright infringement.

Posted as AC cuz slashdot has an anti copyright bias. Im not trolling.

Re:Don't rip off games (0)

Anonymous Coward | more than 3 years ago | (#34451958)

#DEFINE original

Re:Don't rip off games (1)

gilgongo (57446) | more than 3 years ago | (#34452076)

You could try developing something original. Why do you think you can just make money rewriting someone else's idea on a new platform. [snip]

Posted as AC cuz slashdot has an anti copyright bias. Im not trolling.

I think what you call "anti copyright bias" is just plain common sense in most cases. Nintendo or whoever they are have made a shedload of cash from a single creative event that happened about 30 years ago. They then "rewrote" this idea numerous times and re-sold it because the copyright system allowed them to, and will allow them to pretty much for ever.

How about limiting the TIME of copyright to about 10 years so that people can rip mix and burn stuff to their heart's content, just like they used to a few hundred years ago?

Who knows, maybe we'll derive some BETTER works out of that, and ALL benefit from it. Not just bunch of non-creative suits and lawyers from Namco.

Re:Don't rip off games (1)

Blakey Rat (99501) | more than 3 years ago | (#34452254)

I think what you call "anti copyright bias" is just plain common sense in most cases. Nintendo or whoever they are have made a shedload of cash from a single creative event that happened about 30 years ago. They then "rewrote" this idea numerous times and re-sold it because the copyright system allowed them to, and will allow them to pretty much for ever.

How about limiting the TIME of copyright to about 10 years so that people can rip mix and burn stuff to their heart's content, just like they used to a few hundred years ago?

People are already doing that, though. Super Meat Boy and Braid are two recent examples of games that benefit *a lot* from Nintendo's inventions, but they are allowed to exist just fine. Why? Well, because while they benefit from Nintendo's work, they don't flat-out copy it... this guy? He flat-out copied Pac-Man.

Re:Don't rip off games (1)

The End Of Days (1243248) | more than 3 years ago | (#34452294)

People use to rip, mix, and burn a few hundred years ago? That's perhaps the best anti-copyright stance I've ever seen.

Do you have anything more meaningful than "we should dismantle a working system so people can have free stuff, and that might be better?"

Got a business? (-1)

Anonymous Coward | more than 3 years ago | (#34451846)

Get a lawyer.

Rome (0)

ixidor (996844) | more than 3 years ago | (#34451850)

i cannot find a link right now, but i seem to remember from Western Civ. class, that as the number of laws went up, the amount of crime went up. to the point that, the eqivilant to police were using laws to punish who ever the did not like, not all criminals. similar to whats going on now with the RIAA/MPAA, going after a small % of the population. Now you need a lawyer just to sell your hard work.

Re:Rome (1)

Bigjeff5 (1143585) | more than 3 years ago | (#34451896)

Obviously the more laws there are the more laws can be broken, and therefore the more criminals will be.

Simple logic will tell you that.

Without laws there would be no criminals.

Re:Rome (1)

Surt (22457) | more than 3 years ago | (#34452092)

A criminal is by definition someone who violates the law. And police have abused their powers since the beginning of there being police, that's relatively independent of the density of laws, it's more a measure of the corruptibility of human nature. Of course, it worsens the more power police have.

where you from? (0)

Anonymous Coward | more than 3 years ago | (#34451854)

Would be interesting to know which country you come from since you claim that you dont understand why they regard you to break copyright :)

As usual... (2, Informative)

fuzzyfuzzyfungus (1223518) | more than 3 years ago | (#34451868)

The best advice is probably "Get a real lawyer", which is generally economically unfeasible.

Speaking strictly as a 'neither a lawyer nor your lawyer' though, Bandai's DMCA notice sounds like bullshit. Your game may well amount to trademark infringement or even step on some kind of insane patent(apparatus and methods for inducing gamer to care about motile pie-chart); but DMCA notices deal only with copyright violations. Not trademarks, not patents, not defamation, not libel, etc.

Unless your game contains sprites/sounds etc. either ripped directly or falling into the category of "derivative work", a DMCA notice is just the cheapest way to get you offline, not a legally correct approach. In fact, not that this ever happens, Bandai may actually have exposed themselves to some sort of liability by bad-faith filing of one, not that that helps you much. Of course, Bandai could likely crush you like a bug with actual lawyers, this is just a low-cost first shot.

Re:As usual... [WRONG] (0)

fair use (948368) | more than 3 years ago | (#34451964)

Don't listen to this guy. He doesn't know what he is talking about, and if he was a lawyer he would likely be committing malpractice. Many DMCA notices are unjustified, but this one clearly is justified.

I can see where they're coming from (1)

atari2600a (1892574) | more than 3 years ago | (#34451876)

...At least in terms of the trademark. Super Pac is too close to Super Pac-Man ( http://en.wikipedia.org/wiki/Super_Pac-Man [wikipedia.org] ), & when it comes to trademarks, close enough is always too close. There is a chance they may have copyrighted the gameplay or game scenario as well, though with the millions of Pac-Man clones out there that won't hold up in a court IMO.

Re:I can see where they're coming from (1)

Hognoxious (631665) | more than 3 years ago | (#34452090)

Do you know what the C in DCMA stands for? Hint: it isn't "trademark".

Re:I can see where they're coming from (0)

Anonymous Coward | more than 3 years ago | (#34452274)

But what about the C in DMCA?

Can't Be The Name (1)

Bigjeff5 (1143585) | more than 3 years ago | (#34451878)

"Pac-Man" is trademarked, not copyrighted. They would hit you with a cease-and-desist for trademark infringement if that were the case.

I'm not sure how DMCA notices work in detail, so I don't know if a lack of specifics makes it unenforceable or not.

The only thing I can think of that might trip you up is if the map layout is identical. I'm not entirely sure how that would work for Copyright.

It would be a risk on your part to tell Google not to take it down, so you should probably talk to a copyright lawyer first.

Rename it (1)

whiteboy86 (1930018) | more than 3 years ago | (#34451882)

I am quite certain the problem here is the "Pac" in the name, if the game itself is a Pac-Man lookalike then similar sounding name is an obvious trademark collision. In other words, you can make a Tetris kind of game and put it on the Android market, you just can't name it "Super Tetris".

Re:Rename it (1)

Bigjeff5 (1143585) | more than 3 years ago | (#34451978)

That's a trademark, not copyright.

I'm quite certain the problem here is that it looks identical to Pac-Man.

Clear case of copyright infringement (5, Insightful)

fair use (948368) | more than 3 years ago | (#34451890)

Your game is a complete knock off of the original. From your website, it looks like you copied:
(1) the pac man character
(2) the ghosts
(3) the dots and power dots
(3) the style of the maze
This is clear case of copyright infringement.

You say that "no original artwork or sound has been copied", but this is clearly not true. If you draw it yourself to look like the original, it is still a copy. Instead of copying the original do something new. Change the characters. Put the bad guy box in a corner. Have the maze look different.

You clearly have trademark issues as well. "Pac" is distinctive so any name using "pac" will likely be a trademark infringement.

Re:Clear case of copyright infringement (-1)

Anonymous Coward | more than 3 years ago | (#34452040)

I hope you aren't a lawyer.
You just said a work and a derivative work are the same thing "If you draw it yourself to look like the original, it is still a copy.".
That's not only wrong, but stupid.

Here, here's ASCII PACMAN OMG SUE ME.
  C ..... A A A.

Re:Clear case of copyright infringement (1)

KDR_11k (778916) | more than 3 years ago | (#34452132)

That's what a copy is, something made to resemble the original.

Re:Clear case of copyright infringement (1)

Blakey Rat (99501) | more than 3 years ago | (#34452214)

Look at the screenshot on his site. If you "draw it yourself to look like the original", and it turns out *pixel for pixel* to be identical to the original, how does that differ from copying? We're not dealing with a Van Gogh painting here; we're dealing with a computer graphic composed of limited amounts of pixels.

Re:Clear case of copyright infringement (0)

Anonymous Coward | more than 3 years ago | (#34452236)

You can however copyright character design.

Re:Clear case of copyright infringement (3, Insightful)

blackraven14250 (902843) | more than 3 years ago | (#34452246)

"Copyright infringement liability for a later work arises only if the later work embodies a substantial amount of protected expression taken from the earlier, underlying work. The later work must take enough protected expression (it does not matter how much unprotected material is taken, for the latter is open to the public) for the later work to be "substantially similar" to the earlier work." -Wikipedia.

That shit is blatantly infringing on the PacMan character, which is absolutely copyrightable. There's also the need for sufficient originality in a work, which this game does not have any of.

Re:Clear case of copyright infringement (1)

gilgongo (57446) | more than 3 years ago | (#34452248)

Your game is a complete knock off of the original. From your website, it looks like you copied:
(1) the pac man character
(2) the ghosts
(3) the dots and power dots
(3) the style of the maze

It's amazing how, in a world full of copyrights and trademarks and patents and intellectual "property" and all sorts, that people just don't understand any of it.

The items you list above CANNOT be a "clear case of copyright infringement" because you cannot copyright an idea. If you could copyright an idea, then Hollywood would probably produce about 1 film a decade while the lawyers researched the script for stuff people had done before ("This script has a cop with a chip on his shoulder. That was done in Lethal Weapon. Next! Nope, you can't have a bunch of 20-something yuppies living together, that was done in Friends.").

There may be a case against the guy for using the word "Pac" in the name of the game, but not even in the wildest dreams of any copyright lawyer are you going to get away with saying that having a ghost in an arcade game is copyright infringement!

What next? Sue Jamiroquai for singing like Steve Wonder?

Trademark vs copyright? (0)

Anonymous Coward | more than 3 years ago | (#34451926)

Your web site says: "27 Nov 2010 - Super Pac V1.05 released - Increased speed of Pacman"

Perhaps the fact that Pacman is in your game has something to do with it? This is trademark, not copyright, aren't Pacman's look and name trademarked?

You might also avoid using the same terms (0)

Anonymous Coward | more than 3 years ago | (#34451932)

Any video game with "Pac" in the title is inviting trouble, unless it's a virtual Political Action Committee, and maybe even then.

There was a guy in Kansas who had to change the name of his restaurant because it had "Big Mac" in the title.

While I suppose it's possible to emulate the look-and-feel of a popular game without getting sued, it's asking for trouble

Sorry, Captain Hindsight doesn't have better advice than you've already gotten here. I'm no lawyer either, but I would think you should be able to get access to your work-product to modify it. But it will probably take some kind of legal stand to make that happen, and I have no idea what the terms of use for creating apps are (small print: we own your soul!). Reading those would be where I'd start.

Just my 2 cents.
.

Seriously, you are whats wrong with the world (0)

Anonymous Coward | more than 3 years ago | (#34451938)

If you are seriously complaining that you totally ripped off an extremely famous game for profit and got called out. Consider yourself lucky thats all they did!

But...but corpra$hun'$ are teh €eevu£! (3, Insightful)

Hognoxious (631665) | more than 3 years ago | (#34452194)

I must be in that episode of "Sliders" where they were in a world where a red traffic light was go and green meant stop.

Because on the slashdot in *my* universe, information wants to be free and anyone complaining about copyright/patent/trademark infringement is a exploiting an illegal artificial monopoly.

Do NOT ask slashdot... (0)

Anonymous Coward | more than 3 years ago | (#34451946)

1) Never ask slashdot for legal advice. You'll get advice from engineers who have good instincts but no formal training in the law. Formal training matters, because the law doesn't always make sense--at least not the kind of sense an engineer is used to. Despite attempts from the law and economics school to make law efficient (at the cost of any notion of morality), it is not.

2) Never ask slashdot for legal advice. We are not attorneys, so there is not likely to be attorney-client privilege. Attorneys who issued the notice could be reading all of this right now, or could do so later. Anyone here might happen to know the lawyer representing pac-man today; maybe they went to school with him. Maybe they had a party with his wife. Or maybe something embarassing will come up during discovery, if this ever goes that far.

3) Never ask slashdot for legal advice. But if you do, do not trust the advice to be right.

4) IANAL, and this is not legal advice.

WANLs (2)

wasabii (693236) | more than 3 years ago | (#34451954)

Hire a lawyer. He'll file a counter notice, and defend you in the lawsuit. Or preemptively sue.

Or hire a wizard and have him wave his fingers to make your game clone go away.

Abandon your game. (1)

Anonymous Coward | more than 3 years ago | (#34451972)

Seriously, just drop it.

Don't torture yourself by trying to fight a fight that you will never win.

Start over (from scratch) with something else.

Make up something *original* next time.

Good luck.

Not a lawyer... (3, Informative)

gnasher719 (869701) | more than 3 years ago | (#34451996)

First, what is a DMCA notice for: There are three parties involved; you, Bandai, and Google. The DMCA notice says: Google can either throw you out or be part of the copyright infringement. Google wants nothing to do with any copyright infringement, so they throw you out. You, on the other hand, can send a latter to Google claiming that you didn't commit any copyright infringement. Google will then reinstate you - they played by the rules of the DMCA act, and they will not be liable for any copyright infringement. And Bandai _will_ take you to court. Guaranteed. If you do nothing, then Bandai may be happy that they achieved their goal, or take you to court.

Now examine your situation. First, did you commit their copyright or not? Copying the game play is most likely copyright infringement. If you did commit copyright infringement, then the best you can do is hope you don't get sued. If you didn't commit copyright infringement, the situation is roughly the same unless you have lots of money to defend yourself. One iron rule: Don't talk to them without a lawyer. Anything you say will be used against you. If you can't afford a lawyer, don't talk to them unless you have to. And if you have to, get a lawyer whether you can afford it or not.

Re:Not a lawyer... (1)

simon0411 (1921684) | more than 3 years ago | (#34452138)

Game play is not copyrightable. However, it is very clear this guy copied the character design, map design, and "general spirit" of Pac-Man. Those are copyrightable, and it doesn't matter what method was used to do the copying, it doesn't matter that he didn't lift assets directly from Pac-Man; they are similar enough when taken as a whole to be clear infringement. And let's not forget about the blatant trademark infringement (Pac is a unique word, so its trademark protection is extra strong.) He doesn't need a lawyer. He needs to remake his game with original characters/level designs/storyline, i.e. actually become creative, or partner with someone who is.

Do not wake the sleeping giant (3, Insightful)

SuperKendall (25149) | more than 3 years ago | (#34452004)

I agree with others. You could probably file a counter-DMCA notice, and be fine.

Then, NamBandiCo will take more notice, look at your game, and sue your pants and several layers of skin from you for blatant infringement. And they will (rightfully) win. And it will be good. For them.

So basically, count yourself lucky you only have a DMCA notice and call it a day.

Slashdotters please.... (1)

Dexter Herbivore (1322345) | more than 3 years ago | (#34452038)

Have a look at this game, the guy has ripped off Pacman... there is no doubt. I'm sorry, but he's pleading innocent when he's trying to profit off an established product. Not only that, he's tried to ride their coat-tails by including "pac" in the title. I'm all for fighting bad DMCA notices but this one has been targeted appropriately and andriodstevep should be ashamed of himself for trying to so blatantly rip off an existing product.

Not copyright, trademark (1)

SuperKendall (25149) | more than 3 years ago | (#34452180)

The use of the DMCA in this case appears incorrect since he's not using any copyrighted materials.

What is happening is blatant trademark infringement; he should have been sued instead.

So he sort of has a valid complaint but as you say he doesn't really have moral cause to be complaining.

Hiring an attorney may be cheaper than you think (5, Informative)

Grond (15515) | more than 3 years ago | (#34452056)

(Note: I am an IP attorney, but I am not your IP attorney. This is not legal advice.)

You should consult a competent IP attorney in your jurisdiction. Many attorneys offer free consultations, sliding fee scales, fixed-fee arrangements, and many also do outright pro bono work. Many attorneys, especially IP attorneys, are often nerds themselves and are likely to be sympathetic and willing to work with you to develop a custom fee arrangement. In this economy a lot of attorneys have free time and are going to be more willing to work for cheap or free in the hopes of developing better paying business in the future. Don't be afraid to ask directly about costs.

All that said, you definitely don't want to ignore this. The Pac-Man copyrights are well-established and well-defended in court [google.com]. You really should consult an attorney.

EFF (1)

doherty (1945388) | more than 3 years ago | (#34452068)

You should speak with EFF about this. They might be able to offer you (real) legal advice, and if there is a defense to be mounted, might represent you. http://eff.org/ [eff.org]

your statement is factually incorrect (2)

Surt (22457) | more than 3 years ago | (#34452116)

Looking at your artwork, it seems obvious that you copied theirs. Probably not with a photcopier, or a binary file copy, but with a paint program of some sort I'd guess. It's still copying. Whatever you believe about the rightness/wrongness of copyright itself, I think you'd be hard pressed to find even a tiny fraction of the population that wouldn't say this fits the definition of copying.

Just because you didn't use the name "Pac Man" (0)

Anonymous Coward | more than 3 years ago | (#34452182)

Doesn't mean you're not infringing the trademark.

Notice, you used "Pac".

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