Indie Game Dev questions about Parody, Copyright, Fair Use

[DennalMan]

Hi! I'm developing a free-to-play html5 game, and I'm looking for advice regarding parody and copyright infringement. My game is, among other things, a parody of a very famous classic 1970s arcade game.

If my understanding is correct, the way I'm parodying the game definitely qualifies as "fair use" under U.S. copyright law - I'm reasonably confident about this. However, even if your use of copyrighted material is completely "fair use", that cannot actually stop anyone from suing you. "Fair use" can be used as a defence in court... but I think once you're in court against a company that can vastly outspend you, you're already in sadface town. I understand that whether or not one gets sued depends mostly on whether or not the copyright holder feels like it. For example some developers have been known to accept and encourage fan games, and then one day the developer changes ownership and they give everyone C&D notices.

I'm a bit of a dummy on this topic, so I have a lot of questions:

- Should I even be making this game? Should I just stop? From what I gather, that depends on how much of a risk I am personally willing to take. What do I need to know to make an informed choice about this?

- So let's say I get a C&D or a DMCA takedown notice, and I can no longer share the game online. That's not so terrible - the only thing I lose is the time I spent making the game - the entire endeavour of making the game results in essentially nothing gained nothing lost (except for lost time, but hey it was fun and totally worth it). But is that the worst that can happen? Or can I still get sued for damages or something crazy like that and lose vast amounts of money, or get caught in some weird legal hell?

- My current strategy is "If the copyright holder doesn't know that I'm parodying their game, then they can't sue me." This is in conflict with my goal of "I want as many people as possible to play my game." Am I an idiot?

A bit more info about my game:

- It will be free-to-play, and currently I plan to NOT make revenue from it. (I understand that with fair use, making revenue and selling your game is completely ok and legal... but that some copyright holders will be more likely to sue you if you're making money from your project.)

- Current plan is to host the game on websites such as itch.io and GameJolt. (On GameJolt, when a developer's game is viewed, GameJolt shares a portion of the ad revenue with the developer, but I believe the developer gets to choose what portion goes to GameJolt.)

- Playing my game is not at all like playing the game I'm parodying - the gameplay is very different. (Does that matter?)

- If I had to change the game to make it completely original and not a parody at all, I would have to change pretty much everything about it, even the gameplay. There would be no point; I would rather start from scratch and make an entirely new game.

- I want to avoid using any IP I don't own to promote the game. The title, title screen, etc. will be all original - the player won't find out it's about [certain arcade game] until *after* they start playing. (...Does that matter? Some game websites have screenshots of the game before you play... the screenshots might give away that it's a parody.)

- So far I've been talking about parodying one particular game, but..... I would love to parody or pay homage to a few other arcade games as well in a few of the levels. Games do this ALL THE TIME, but I've also heard of people getting sued over the most tiny insignificant detail that's in a game for like 3 seconds. What about parodying movies? Other pop-culture references? Am I just asking for trouble? (Or paranoid?) Should I simply research into each game's developer and see if they have a history of suing people?

- This is mostly related to the one question above: To qualify as "fair use", does a Parody have to "criticize" or "make fun of" the source material, or can it simply reference it or pay homage? Or does "criticising" a game make it even WORSE (angering copyright holders?), even though "fair use" definitely allows for it?

- Do game companies ever protect their IP with a penalty that's LESS harsh than a C&D or complete takedown? Like, "You can keep your game online, just remove the two levels that parody our game", or, "You can parody our game, just remove the copyrighted sprites and sound effects and make new ones instead". I'm considering sampling maybe 1 of the original sound effects (I want the original for comedic reasons) and using one of the original sprites (but I've added more detail to this sprite).

- I live in Canada, where instead of the U.S. copyright law exception "fair use", there is a similar Canadian analogue "fair dealing" wherein Parody is also a valid defence against copyright infringement. So which countries' laws do I have to worry about? Does it depend on which websites I host the game on or something?

- I've so far been talking about copyright, but ultimately I also have to care about trademarks, patents... what else do I need to worry about?

- At what point should I see/pay a lawyer for legal advice?

- What about contacting the copyright owners and asking them if I may parody their games?

- I'm the only person making the game, but the game's music will include songs made by different artists (with their permission). If I get into some kind of legal trouble, that's not going to negatively affect any of the artists who contributed music is it? I'm worried about that. Should I be worried?

A part of me hopes that friendly lawyers read the OCR boards and will happily give me expert advice for free, but also I imagine there are probably non-lawyer forum goers here who read about this subject often, or who have dealt with this kind of thing first-hand, or who have developed a videogame or fan/parody project and are well-learned about such matters. I'm also asking on OCR because I used to be a member here (2000+ posts!) and I seem to recall that the community here kicked ass. Anyway I may have more questions later, but if this post was any longer it wouldn't work as nicely.

Edited April 19, 2015 by DennalMan

[Anorax]

You, sir, are asking all the right questions. Unfortunately, I can't answer any of them. While I'd like to add in my two cents, I feel that it's better for someone actually knowledgeable in Fair Use dealings to speak up, as far as parody games work.

[MindWanderer]

I'm not an expert, but here's my take:

• It's entirely possible to put out a free fan game, even using copyrighted resources, and not have major developers get mad at you even when your game becomes widely known.  See: Super Mario Crossover, I Wanna Be the Boshy.  Naturally this changes immediately once money is involved.
• It's also entirely possible to put out something pretty innocent and get a takedown notice.
• It's very easy to send a takedown notice, and most ISP's and hosting companies will comply with them unless they have a really compelling reason not to.  There's not likely to be any "lower" ground unless you reach out to the company complaining and come to an agreement (which will probably come long after your game is taken down).
• If it's just a parody, there's really no good cause to go after you.  If there's no artwork, music, or gameplay elements taken from the actual game, and all the names you use are spoofs, it's pretty darn clearly fair use.  It might also depend on how you market the game, though--if your web page is titled, "SPACE INVADERS PARODY 'Briefcase Invaders'," you'll attract some more negative attention.
• Parodying definitely does not have to be critical or farcical to be protected under Fair Use.
• The hosting company and ISP will follow the laws of the country in which they're incorporated, and where your content is physically hosted.

[Newt]

Game-play elements are not covered under copyright, elements of presentation are. For any real answer, you should talk to your lawyer(s) -- any advice given in this thread should be construed as conjecture, not legal advice.

 

In general, it sounds like you're working on some sort of portfolio piece. Most organizations don't really care about these, but may ask you to stop using their IP. IIRC, organizations are essentially required to send the take down notices or they can lose the ability to enforce ownership of the IP or something..

[DennalMan]

Hmm, interesting, thanks!

I think what I might do is find a lawyer to talk to before releasing anything online, so I can make any necessary changes to the game before it's public.  For example, I borrowed a few sprites from the game and modified them... but did I modify them enough?

Sounds like I should err on the side of caution regarding money.  So if I want to avoid making money from this game, but at the same time make some money from *other* games, perhaps I should make two separate itch.io accounts.  Or else people might play my parody game (which will have no "support" button for donation), and then decide to donate to me via the "support" button for one of my other games.  I guess if one account uses my real name, then the other account has to use an alias, or else people could figure out that the same person made both games and I might accidentally make money incidentally from the parody game.  Gahh, or is that just playing it TOO safe?  I will have to ask a law talking guy.

And since GameJolt makes ad revenue from page visits, maybe I shouldn't host there after all... unless maybe there is an option to turn off ads for a specific game.  Perhaps later I'll ask GameJolt about this.

I guess I should also find out which countries itch.io/GameJolt are in, and find out if their copyright laws differ significantly from the US or Canada.


Huh and as if this wasn't already tricky enough - for the game's music I also want to include a few VGM covers/remixes   A couple of them even include voice samples from the videogames, oh gosh...!  I'm pretty sure that's technically fair use... but still...

What are my goals though?  Mostly I'm making art, and I'm going to do what I want, as long as it's pretty clearly fair use.  It sounds like whether a project gets taken down or not depends mostly on luck, no matter how fair its use of IP is.  But I also want people to play the game, so obviously I don't want it to get taken down - and I know there are a lot of precautions I can take without compromising the art very much.  I'm also trying to be extra careful because I want to release the first quarter of the game as a demo before I finish the rest, and it would be a shame if the demo is taken down before the full game is completed.  Some of the best parts are near the end!!

You might be wondering why am I making a parody game in the first place?  I guess I'm very excited about this particular game, and I know it's going to be really good, and have already put a bunch of time and love into it.  That, and I don't have any other game ideas right now that I'm very excited about.