Whether or not you make money off of it is rarely a concern. The fact that your game plays in the exact same way as an existing game could theoretically damage sales of that game, hence your payment to the owners of that game is supposed to make up for that loss.

Of course, in your case that game no longer gets sold; there are no sales to damage. The reason people tend to seek money for games they no longer sell is because they like money, and that's no defence when they come to claim!

Well, just because the publisher isn't selling a version of the game now doesn't mean they never will, just look at all the retro collection discs for the various modern consoles... They can always make the case that you're harming their ability for future sales, even if they aren't currently selling it.

Anyway, I hate the fact that some publishers try to sue on basic gameplay similarity grounds, like all of those Hasbro/Asteroids lawsuits from a few years back. But if you directly rip off the graphics & sounds from another game, you're just asking to be sued, and I wouldn't have a problem with the publisher suing someone in that case. That is clearly closer to theft than homage/inspiration. Don't do it.

Copyright has nothing to do with sales, profit, free or otherwise. Copyright has to do with the copyright owners rights in the IP they created. It doesn't matter if you sell the copy of their game or give it away free, it is still a breach of their rights.

If you can't find the prson to ask them for the rights then you must assume that permission is not granted.

Quote: Original post by gmcbay
Anyway, I hate the fact that some publishers try to sue on basic gameplay similarity grounds, like all of those Hasbro/Asteroids lawsuits from a few years back. But if you directly rip off the graphics & sounds from another game, you're just asking to be sued, and I wouldn't have a problem with the publisher suing someone in that case.

This is really starting to annoy me (this aspect of the law, not anybody in particular!)

Specific game code can be protected, as can visual and audio art. But gameplay design cannot... As a designer, this strikes me as unfair. Why can't my contribution be protected?

Perhaps more importantly, I am beginning to wonder if this might have implications on the industry as a whole. If a person can copy gameplay down to the last detail, is it any wonder that most games play the same these days?

I'm not saying that good systems shouldn't evolve into better ones. But if the people who originally created new gameplay mechanics and designs received some legal ownership of them, perhaps more people would invest in developing new ideas rather than rehashing old ones?

Quote: Original post by gmcbay
Well, just because the publisher isn't selling a version of the game now doesn't mean they never will, just look at all the retro collection discs for the various modern consoles... They can always make the case that you're harming their ability for future sales, even if they aren't currently selling it.

Anyway, I hate the fact that some publishers try to sue on basic gameplay similarity grounds, like all of those Hasbro/Asteroids lawsuits from a few years back. But if you directly rip off the graphics & sounds from another game, you're just asking to be sued, and I wouldn't have a problem with the publisher suing someone in that case. That is clearly closer to theft than homage/inspiration. Don't do it.

Yes, i definately agree on this. Fundamental game idea should not be Copyrighted, but sprite characters or level design should. But it is a thin line. Blunt rip-offs of game levels, graphics, and Sprite rip offs , yes then I can imagine a company will use its powers to let the team know it crosses the boundary (if the game dev team charges money for it).
Copying an unique game idea, especially with story line, 'feel' and artwork, it's not right, imho.

Quote: Original post by Marmin
But is it thst easy to avoid copyright infringement, just changing the sprites and artwork, calling it another name, and proceed?

Exactly were is it stated what aspects/elements of a game is copyrighted?
The idea of Tetris and the name is copyrighted, if you make a tetris clone and ask money for it you'll be sued. But the game idea of 'Scramble' is not; it is cloned since the 80ies numerous times and this game idea is 'in the public domain'.

If it was done on a computer, it is still under copyright unless explicitly placed in the public domain.

Anything that is concrete (including software or bits in memory) is copyrighted the moment it is created. Copyright is actually about distribution rather than duplication.

The creator of the object, recording, or other content is the owner of all rights relating to redistribution. Pictures or other reproductions of a thing are considered derivative works, so you can't take pictures of a statue and redistribute them without the permission of the statue's creator. It is generally fair use to take pictures for yourself and NOT distribute them.

Art assets are copyrighted. You can't copy them directly or base new art on them if anybody but yourself is going to view them, unless you have permission of the copyright holder.

Source code and executables are copyrighted. You can't just make copies of it. If you have source code, you can't just rename variables and reorder the code, or otherwise make derivative works using the source as a direct reference.

The idea of Tetris is not, and could never be, copyrighted. You cannot copyright an idea. You patent ideas for a process or design.

If a design or idea is not patented (such as your "scramble" example) you can use it. There is no such thing as "public domain" on ideas. Patented ideas include the Marching Cubes algorithm, the concept of using a laser pointer to exercise your pet, certain shadowing algorithms, and using Fourier analysis of radio waves to configure traffic flow detection in a road.

The name Tetris is not copyrighted, nor could it be. It is trademarked. The *tris names are neither copyrighted nor trademarked. You can't make something that can be confused with the name; that's dilution of trademark (making the trademark less potent).

You cannot take the "trade dress". Trade dress does not need to be registered. It is any distinctive part of the look-and-feel. If you make your own GUI that feels and acts like Apple's Aqua interface, you are stealing their trade dress. If your web site basically looks like Microsoft's web site, or has the same presentation as Gamedev.net, you are stealing the trade dress.

In summary:

You CAN make a game with the same gameplay concepts as Tetris, Pong, Pac-Man, Mario Bros, Quake, Descent, or any other game.

Don't call them the same or a similar name or otherwise steal, confuse, or dilute their trademarks. Don't copy the trade dress or 'look and feel'. Don't use anything that is under patent (stupid software patents). Absolutely don't use the same or derivative artwork or program code.

I am not so sure how enforceable the "trade dress" is.
For example KDE has a theme called "Redmond". It is obviously a theme that makes KDE look and feel like Windows 95/98.
Could MS sue them for that?

Quote: Original post by Zild
This is really starting to annoy me (this aspect of the law, not anybody in particular!)

Specific game code can be protected, as can visual and audio art. But gameplay design cannot... As a designer, this strikes me as unfair. Why can't my contribution be protected?

But if you read the Patterns of game design book which gameplay is really unique? people have played games since the beginning and most game play boils down to instances of typical game play patterns such as the the rock paper scissors paradigm. Its hard to put a copyright on that. Its the same as that guy that tried to put a copyright on "selling things on the web".

Quote: Original post by Zild
This is really starting to annoy me (this aspect of the law, not anybody in particular!)

Specific game code can be protected, as can visual and audio art. But gameplay design cannot... As a designer, this strikes me as unfair. Why can't my contribution be protected?

WTF?
You would LIKE game design to be protected? Then you'd never be allowed to create any game design, because, guess what, by this time most of the designs would be protected already.

Quote: Original post by Raduprv
I am not so sure how enforceable the "trade dress" is.
For example KDE has a theme called "Redmond". It is obviously a theme that makes KDE look and feel like Windows 95/98.
Could MS sue them for that?

Trade dress is very enforceable.

Wired article about how it works and relates generally to computers
FindLaw article about how it relates to web sites

Actually enforced trade dress cases include:
* Colors of a two-tone pill capsule
* Patterns of stiches on shoes
* Custom handbag stitching
* Decorative motif of resteraunts (subway, taco bell, pizza hut, etc.)
* Apple's Aqua motif
* Atari's Pac-Man against a clone (K.C . Munchkin "gobblers"). It was ruled on because it stole the "total concept and feel" of the game. Note that the court decision also said that taking concepts is not itself an issue.


Search for the 'Lanham Act' for details of the law, but it covers quite a bit.

It covers anything that is distinctive and not required for functionality (example: the style of the headings on GameDev.net pages)

There are eight points that are considered: Strength (popularity) of the product or site, degree of similarity, proximity of products and services and their distribution channels, probability of confusion, evidence of actual confusion, good faith/bad faith (intent), quality of product, and understanding by the consumers.

The judge then considers the eight factors and decides for himself.