Hullo, I'm creating an a FPS based off of Airsoft, being a military simulation. I am not selling the game for a profit, only accepting donations. I was wondering though, what all needs to be done? Trademarking company name? Game name? Patenting ideas? Contacting airsoft and real-steel weapon companies for permission? Etc.

Quote: Contacting airsoft and real-steel weapon companies for permission?

Always step one.

Quote: I am not selling the game for a profit, only accepting donations

How you get the money isn't at issue. That you are MAKING money off someone elses (potential) IP is.

Contact them and see what they think. They may tell you to shut down, but better now than 1 year in development (or more as the Kings Quest XI team found out :( )

If you were just making it for yourself or for your friends to just pass around you would probably be in the clear. Once you try to make money off of a product is where the legal business usually comes in. You could in a sense do nothing and just put it out there and ask for donations. Some people might get away with this stuff but IF SOMEBODY FOUND OUT AND DIDN'T LIKE IT YOU WOULD BE HELD FOR IT. So I say just get the permission needed and everything before you even begin working on the game.

Quote: I am not selling the game for a profit...

Quote: How you get the money isn't at issue. That you are MAKING money off someone elses (potential) IP is.

Quote: Once you try to make money off of a product is where the legal business usually comes in.

Repeat after me: it does not matter if you are profiting off the IP or not. It does not matter if you are giving it away, doing it anonymously, or doing it as a devoted fan just looking to bring greater exposure to your favorite IP. It's someone else's IP and they get to say what's done with it. Hence, you must always ask permission to use the IP unless it falls under fair-use, which incorporation into a game does not.

So to get started, get permission from manufacturers, and trademark company and game name. Is that it? Does anything need to be copyrighted, registered, etc?

Quote: So to get started, get permission from manufacturers, and trademark company and game name

Do this first....

Quote: Does anything need to be copyrighted, registered, etc?

...cross that bridge later.

Quote: Original post by Simagery
Repeat after me: it does not matter if you are profiting off the IP or not. It does not matter if you are giving it away, doing it anonymously, or doing it as a devoted fan just looking to bring greater exposure to your favorite IP. It's someone else's IP and they get to say what's done with it. Hence, you must always ask permission to use the IP unless it falls under fair-use, which incorporation into a game does not.

Not all IP is the same. What you say applies to copyright and patents (though afaik "fair use" only applies to the former), but it's less clear about trademarks. Trademarks don't prevent you from using the words at all, just that you cannot use them to market a product in a similar market. I'm not sure whether distributing a game for free would count or not.

In theory you can include trademarks in your game if you don't profit from the distribution (e.g. if I draw a pic of batman and post it on my website D.C. can't sue me. If I ask for donations to cover my expenses that is legal in theory but in reality it is asking for a heap of trouble and is thus supremely impractical. If I charge for and profit from the sale of said picture that is obviously illegal.

Airsoft and firearms companies will never give you permission to use their trademarks... the reason being that they have no control over the quality of the product you are creating and they will not risk damaging their reputations by associating themselves with an inferior product or worse, one with a questionable sense of moral responsibility.

You have essentially three choices:

1. Use the trademarks, do not charge or accept donations for the game and lose money. There is no point in working hard on such a large project with no prospect of anything in it for you though. I think this option sucks.

2. Use generic descriptions for your weapons and don't use any trademarks on the gun models (which can otherwise look nearly identical to the originals).

'.50 cal handgun' instead of 'Desert Eagle'
'.50 cal sniper rifle' instead of 'Barrett .50 cal'
'Italian 9mm' instead of 'Beretta 92FS'
'Swiss 9mm' instead of 'Glock 17'
'Massachusetts 9mm' instead of 'Smith & Wesson 1911'

3. Forget it. Do something else.

By the way Simagary... incorporation into a game is fair use as long as it is a not-for-profit fan game... other wise half-life modders would be in a lot of trouble for making Star Wars mods etc... A fan game is no different, legally speaking, from fan art or fan fiction. I would say, however, that it is pointless to waste your time advertising someone elses IP for no profit.

Quote: Original post by Anonymous Poster
Trademarks don't prevent you from using the words at all, just that you cannot use them to market a product in a similar market. I'm not sure whether distributing a game for free would count or not.

It certainly would count - If the OP was making a game about bouncy castles and they used the name Airsoft then the bb gun company would not have a case. However the OP intends to use the term Airsoft in relation to bb guns. As such, although the game software market may be a different market the OP is using the Trademark to refer to bb guns and so the Airsoft company would be able to pursue them for Trademark infrigement. The company would claim that by using the trademark in relation to bb guns the OP is implying that they endorse the product - further more if the game was of a low quality they might claim that it damages the image of the company and its products and sue for damages.

Quote: incorporation into a game is fair use as long as it is a not-for-profit fan game

Common misconception.

Fan games or sites DO NOT fall under fair use provision (as the Star Trek franchise proved a few years back).

I'll let the law explain it better:

Quote:
TITLE 17, CHAPTER 1, § 107 of US copyright law

Limitations on exclusive rights: Fair use



Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

As you can see, fan games and sites meet none of the criteria set above.

That Mr. Lucas ALLOWS modders to do this is another issue. Any day, Lucasarts can pull the plug on all modders and they won't have a legal leg to stand on.