Quote: 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.

That was exactly the point of my post: the exchange of money/goods/services in relation to one's use of an IP has absolutely no bearing on whether it's legal or not. All it does is potentially reduce the offender's liability and at best would get you off with a slap-on-the-hand.

And in regard to trademarks, it varies based on whether there would be potential confusion and whether it's a TM (trademark), (R) (registered trademark) or SM (service mark). AFAIK, registered trademarks (R) are pretty much completely protected. I.e., Kodak is a made-up word, it's (R), and I can't use it to label my new fancy hat that I call the "Kodak Hat" as there would be potential for confusion in the eyes of the customer.

Quote: In theory you can include trademarks in your game if you don't profit from the distribution... ...incorporation into a game is fair use as long as it is a not-for-profit fan game.

No, no, no, no, no... see the statement above.

Quote: Original post by Geocyte
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.

Simagary is correct. Fair use does not apply in the case of things like games or web sites regardless of if they are for money or not. As for Star Wars mods - lots of these have been closed down by LucasArts in the past. Many still exist because Lucas' large team of lawyers haven't tracked them down yet. Just because they exist doesn't mean they are legal.

The mention of fan art and fan fiction in relation to IP spurred me to be extra clear about a point: I'm not implying that it's illegal or wrong to use unlicensed IP for fan art, fan fiction, fan games, whatever. What's illegal is distributing it or otherwise making it publicly available/viewable/accessible/whatever.

In other words, if you create a game featuring Star Wars, Star Trek, and Babylon 5 characters and their likenesses, but it never leaves your PC and is never exhibited to the public in any way, then, well, no one is going to come knocking on your door.

This is in contrast to, say, drug use, wherein it doesn't matter if you do it in the absolute privacy of your home with zero impact on the public: you're still can't legally do it and the cops could come bust your door down.

Just a bit of the inconsistencies in the law... :)

This just goes to show that the Internet doesn't necessarily change things but simply magnifies them. The whole world of fan fiction, etc., never got any widespread exposure or had any impact on the public at large. Throw it on a blog about Star Wars and now instead of a dozen friends/fans seeing it there are a thousand. And in the eyes of IP holders this is a huge distince (rightfully so).

In other words, I would urge any creative person to not ruin themselves before beginning: create your own IP. Building on someone else's IP at best will get you shutdown after great success. At worst you'll simply lose ownership of everything surrounding the unlicensed IP and have wasted your time.