#Footnotes is Rachelle Riddle's weekly explainer column about what's going on beneath the surface of the world of gaming.
Disclaimer: This article discusses some of the legal risks of IP infringement. However, I am not a legal professional and this article is in no way a substitute for consultation with a legal professional.
Fan games are popular. Game developers, students, and indies all want to pay homage to and have fun in the worlds they love, and fans can't get enough of their favorite media. It's easy to get excited about these fan game projects: A Mario 64 HD remake in Unity sounds great, a completely new Pokémon game centered around nuclear disaster with 100 new Pokémon is cool, a 3D Sonic game in the style of the 2D versions rocks.
However, fan games are a legal mess and can cause real trouble if the game's developer or publisher wants to press the matter.
Unfortunately, there are a lot of myths out there and fans believe they can make projects without consequence.
By default, a "fan game" is absolutely related to another company's IP which is where the legal issues come in. VideoGameAttorney, aka famed video game lawyer Ryan Morrison, has spoken about the hazards of making fan games, combating widely held myths about copyright law and fan works. His advice: Don't do it. You can be inspired by something, but it's best to just come up with your own ideas. Or get a license.
Myth #1: Fan Projects Are OK If They're Free
This one is probably the most pervasive myth out there. Morrison likens it to the equally persistent myth that a cop has to announce that they are a cop.
One reason this is spread around so much is that people want to believe it. After all, companies are only concerned with money and you're not making any right? But the problem is even free material can cause harm to the company.
Copyright law is concerned with similarities between works and whether or not it could reasonably be mistaken for the company's intellectual property. It doesn't matter whether or not you make money, or even what you do. The creation of the product is infringing on someone else's copyright and you are always liable.
Myth #2: They Have to Send a Cease & Desist First
Cease and Desist letters are often the first line of defense. They're a cheap and easy way of getting people to stop any infringement and many companies have attorneys on retainer who can draft up a letter in a jiffy. They shoot off a letter, it's affordable, you just have to comply and take the project down.
Cease and Desist letters work well as a deterrent early on in a fan game's development, but these are really a best case scenario: you receive warning to prevent legal trouble without any actual harm.
The prevalence of cease and desist letters, however, has led many to think that it's a requirement in protecting copyright. They don't actually have to do that, most IP-holders just do it out of courtesy and ease. If they really want, they can just go straight to suing and be well within their rights to do so. It all depends on what the company wants to do and how voraciously they want to protect their IP. If you've gotten to the point where you can distribute your fan game, you're likely to find yourself past the point of polite letters and more into the realm of court summons.
Myth #3: The Game's Guidelines Or Community Rep Gave Permission
Most guidelines, like Microsoft's oft quoted Game Content Usage Rules, make people think they're perfectly fine to make a fan game with copyrighted assets and IP. In reality, Microsoft can revoke those rules at any time, and the rules also state that it's for personal use only. These rules are mostly intended for broadcasting the game on Twitch or YouTube. But when it comes to green lighting a fan game, even a community representative can't give you permission, that's well outside their realm of expertise.
The only permission that you can get is through an actual licensing agreement. If you don't have it in a formal written letter, you don't have explicit permission.
Myth #4: Just Because Nothing Happens Doesn't Mean You're Safe
A lot of people seem to think that if they get the game developed and then release it then they'll be fine. Or, if they don't get a Cease and Desist letter then the company is tacitly fine with the game.
Unfortunately, that's just not true and the IP holder can sue at any time. And if you get to the point of distributing a game, even for free, you might not get the courtesy of a Cease and Desist letter. Even if you happen to miraculously stay under their radar, that's the best you can hope for. But do you really want to take that chance? Sooner or later someone's going to notice.
Myth #5: They Have To Prove Damages To Sue You
Nope. It's not a case of lost sales or unfair competition. This is just basic IP infringement. You made something with an intellectual property they own.
Copyright violations are measured in fines for each infringement, which can get up to $150,000 each. Pirating video games can get you in trouble with your ISP. The Napster era didn't necessarily prevent people from buying music albums, but lawsuits measured the amount of times music had been shared or downloaded and fined per each infringement.
Myth #6: I Never See News About These Lawsuits, So They Must Not Actually Happen Often
These cases can be very, very quiet. Most companies will opt for a simple Cease and Desist letter. Few will take the legal route, and even fewer will make it to court. Many will opt to settle for a reduced fine. Built into those settlements are non-disclosure agreements to prevent details getting out; you legally might not be allowed to publicize that you were sued without incurring additional penalties.
Companies also aren't going to brag that they're suing people, and they don't really want you blabbing about the fact they're suing you on social media. Fan games are small enough that there doesn't need to be a publicized deterrent, but problematic enough that they need to be dealt with when they pop up.
But What About Parody? It Doesn't Work The Way You Think
Fair use and parody is a legal defense, not a constitutional right. Even then, it's only a legal defense in court, as proclaimed by an actual judge, which costs money to get there. You cannot just send a letter back to the company stating that it's fair use and they'll nod and agree.
Even Weird Al asks for permission for his parody songs. Fair use and parody are a form of criticism and fan games aren't really doing this. Fan-fiction and artistic works even fall under IP infringement, but there's so much out there and it's so small in the grand scheme of things that it's often not worth for them to go after.
It's highly unlikely that consumers will mistake fanfiction or art pieces for the original IP. Fan games, on the other hand, tend to have a larger impact and more confusion with the original IP.
Entertainment Laws Still Favor The IP Holding Companies
Unfortunately, copyright laws are still pretty archaic and favor the plaintiffs. They should be able to protect their IP and they also wield a lot of power in doing so. Most laws about copyright or entertainment were written in the 1970s and meant for older forms of media like movies or books. Video games are relatively new and harder to deal with. Even small modern issues, like remixing samples in hip-hop, often attracts costly legal action. Laws are slowly catching up in regards to internet-related issues, but we're still a long way off — and, often, the federal government has much bigger policy fish to fry.
Check out more legal battles in the video game world: