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Original post by tsloper Lots of people have cloned Shanghai, Pac-Man, and Tetris and never suffered any legal consequences. But numerous lawsuits have occurred over game cloning. Every case is different - every IP owner, every game, every cloner, every environment. There's no way anybody can give you a clear checklist of things to do to clone this "Cheese" game and remain safe. You're venturing into a swamp, and you need a friendly alligator to guide you.

Amen to that.

The general rule is this:

The first person to copy it is risking serious legal trouble. They are risking it even if they have written permission from the original author. Hire a lawyer or two or three who are expert in the area, and have a really big legal budget.

The 100th person to copy it following a genre and is risking only a tiny bit of legal trouble. Most IP lawyers could easiy guide you through the risks.

Note how both involve lawers.

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Original post by legolas558 Thank you for flaming. However my supposition was: since I am not using their dead trademark and their original copyrighted material, I cannot be sued.

Wrong.

You can be sued for anything, even if you aren't guilty.
Copyright includes derivative works. A clone is a derivative work since it is based on the original work.
Other laws such as trade dress involve the look and feel elements. This is an increasing area for law suits.
A dead registered trademark means practically nothing if they decided to sue. See the next quote.

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Original post by legolas558 Indeed. But the point that I am still missing - behind the post I submitted - is: what does me guarantee the fact that the trademark is 'dead'?

Just because the REGISTERED trademark is dead does not mean that the product is suddenly free from trademark law.

You do not need to register a trademark to get trademark protection. Having formerly had a registered trademark and letting it expire gives you even more trademark protection than having an unregistered trademark. It is a little less than a live registered trademark, though.

Trademarks exist when a mark (name, logo, etc.) is associated with a product or company. As long as the association exists, you are probably violating trademark law.

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Original post by legolas558 but considering that I am going to release a freeware game...I do not have a huge budget. I don't have a budget at all, to tell the truth.

Not making a profit doesn't give legal immunity.

You said you have no money (budget). If somebody decided to sue (even if you aren't doing anything wrong) you probably don't have the personal assets to even defend yourself in court, and would be at the mercy of whoever sent you the legal nastygram.

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Original post by frob You can be sued for anything, even if you aren't guilty. Copyright includes derivative works.

I do agree with the above.

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A clone is a derivative work since it is based on the original work.

I do not agree with this. Nucheese is inspired by Cheese. I am probably wrong about this.

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Other laws such as trade dress involve the look and feel elements. This is an increasing area for law suits. A dead registered trademark means practically nothing if they decided to sue.

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You do not need to register a trademark to get trademark protection. Having formerly had a registered trademark and letting it expire gives you even more trademark protection than having an unregistered trademark. It is a little less than a live registered trademark, though. Trademarks exist when a mark (name, logo, etc.) is associated with a product or company. As long as the association exists, you are probably violating trademark law.

You have given me all the valid reason to postpone the release, or probably never release anything. At this point I am wondering: what will happen if I release the souce code as open source? An easy way to go to jail? Look at Freeciv, a civilization clone: how much troubles did they get? I was basically taking them as an example.

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Not making a profit doesn't give legal immunity.

I am not that stupid. I didn't mean that, I just highlighted the fact I am not going to have money to spend for this quest/trouble. I also do not want to be an usurper, but looks like I am going to be that.

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If somebody decided to sue (even if you aren't doing anything wrong) you probably don't have the personal assets to even defend yourself in court, and would be at the mercy of whoever sent you the legal nastygram.

The above scared me a lot: are you saying that I can be sued for making a game with the same gameplay of another? There has already been a Camembert game that was using some features taken from Cheese (people said: look! like in Cheese!)
but nobody sued nobody. Now please don't say "this doesn't make you safe", I know...

Another clue: Cheese is abandonware and freely downloadable these days. Doesn't it mean that they have dropped their commercial expectations on it? However I acknowledge that my case of creating a clone and making it public domain is totally different.

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Original post by legolas558 Quote: Original post by frob A clone is a derivative work since it is based on the original work. I do not agree with this. Nucheese is inspired by Cheese. I am probably wrong about this.

You are wrong (batting 0-5 on IP law). You used the original as a reference and set out to make an updated version. That makes it a derivative work. You then used the original name, linked to Cheese related info and displayed copyright notices relating to Cheese which made it clear that this product is in everything but honesty a sequel. That is easily enough for a court to decide against you.

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At this point I am wondering: what will happen if I release the souce code as open source? An easy way to go to jail? Look at Freeciv, a civilization clone: how much troubles did they get? I was basically taking them as an example.

Source code or exe wont make much difference - the court will judge your intent to be the same.

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Another clue: Cheese is abandonware and freely downloadable these days. Doesn't it mean that they have dropped their commercial expectations on it? However I acknowledge that my case of creating a clone and making it public domain is totally different.

Abandonware has no legal meaning it is just piracy. IP is either copyright or it is public domain. A game is only public domain if the copyright term has expired or the author placed it in the public domain (they must do this officially - you can't just assume that because it is available for download that it is public domain). It doesn't matter if the IP owner is still selling the original version or not - it is protected by copyright for the life of the author +75 years. Given that the games industry is only 30 years old the only games that are currently in the public domain are those placed there officially by the IP owner.

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Original post by Obscure Quote: Original post by legolas558 Quote: Original post by frob A clone is a derivative work since it is based on the original work. I do not agree with this. Nucheese is inspired by Cheese. I am probably wrong about this. You are wrong (batting 0-5 on IP law). You used the original as a reference and set out to make an updated version. That makes it a derivative work. You then used the original name, linked to Cheese related info and displayed copyright notices relating to Cheese which made it clear that this product is in everything but honesty a sequel. That is easily enough for a court to decide against you.

I have not yet done anything of the above. I will not use the original game name (it won't be called Nucheese, let's say Butter for example) or material in any part, neither I will advertise it as related to Cheese. I won't need to display any copyright notice of Cheese's authors because there won't be any reference to Cheese.

By the way, do you have comments on the other points of my previous post?

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Quote: At this point I am wondering: what will happen if I release the souce code as open source? An easy way to go to jail? Look at Freeciv, a civilization clone: how much troubles did they get? I was basically taking them as an example. Source code or exe wont make much difference - the court will judge your intent to be the same.

Please consider again the above statement; is it still true if I have Butter being totally separated from Cheese? Just now I am realizing how complex the problem is...

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Quote: Another clue: Cheese is abandonware and freely downloadable these days. Doesn't it mean that they have dropped their commercial expectations on it? However I acknowledge that my case of creating a clone and making it public domain is totally different. Abandonware has no legal meaning it is just piracy. IP is either copyright or it is public domain. A game is only public domain if the copyright term has expired or the author placed it in the public domain (they must do this officially - you can't just assume that because it is available for download that it is public domain). It doesn't matter if the IP owner is still selling the original version or not - it is protected by copyright for the life of the author +75 years. Given that the games industry is only 30 years old the only games that are currently in the public domain are those placed there officially by the IP owner.

I knew most of the above informations, however the abandonware "constant risk" of being sued sounds new to me. Maybe the abandonware sites reside in countries where the application of international copyright laws is a chimera. But this is off-topic, however.

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Original post by legolas558 At this point I am wondering: what will happen if I release the souce code as open source? An easy way to go to jail? Look at Freeciv, a civilization clone: how much troubles did they get? I was basically taking them as an example. ... Please consider again the above statement; is it still true if I have Butter being totally separated from Cheese? Just now I am realizing how complex the problem is... ... I knew most of the above informations, however the abandonware "constant risk" of being sued sounds new to me. Maybe the abandonware sites reside in countries where the application of international copyright laws is a chimera. But this is off-topic, however.

I'll just say it again, since this apperently didn't get through.


The general rule is this:

The first person to copy it is risking serious legal trouble. They still have a little risk even if they have written permission from the original author [although getting permission from the author brings the risk to practically zero]. Hire a lawyer or two or three who are expert in the area, and have a really big legal budget.

The 100th person to copy it following a genre and is risking only a tiny bit of legal trouble. Most IP lawyers could easiy guide you through the risks.


It shouldn't be too hard to find the people involved in writing the original program, whatever it is. Game credits are easily found; contact somebody on the credits to find out about the company to find out about the old company. Then contact the people who are (or were) the IP holders for the company. They might even give you written permission to clone and derive from it. Since it's a dead game from a small (probably defuct) company, it is quite likely the'd give you permission as long as you don't use the original name and claim it isn't an official thing from the original -- and do it for free with a simple email.

That should take about an hour of work.

Take that information to a lawyer and ask what to do next. It might just be a single lawyer visit (maybe two), and in total cost $100-$200, depending on lots of factors. That tiny investment of time and money can save you a fortune down the road.

If all goes well, you could have written permission in hand, a lawyer telling you everything is great, and a knowledge that you can go ahead with your project. Yay.

If something goes wrong, you'll know that you saved yourself some eventual legal troubles. Yay.

Either way, you'll be one step closer to becoming rich and famous.

It should take less than a week.

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Original post by frob Quote: Original post by legolas558 At this point I am wondering: what will happen if I release the souce code as open source? An easy way to go to jail? Look at Freeciv, a civilization clone: how much troubles did they get? I was basically taking them as an example. ... Please consider again the above statement; is it still true if I have Butter being totally separated from Cheese? Just now I am realizing how complex the problem is... ... I knew most of the above informations, however the abandonware "constant risk" of being sued sounds new to me. Maybe the abandonware sites reside in countries where the application of international copyright laws is a chimera. But this is off-topic, however. I'll just say it again, since this apperently didn't get through. The general rule is this: The first person to copy it is risking serious legal trouble. They still have a little risk even if they have written permission from the original author [although getting permission from the author brings the risk to practically zero]. Hire a lawyer or two or three who are expert in the area, and have a really big legal budget. The 100th person to copy it following a genre and is risking only a tiny bit of legal trouble. Most IP lawyers could easiy guide you through the risks. It shouldn't be too hard to find the people involved in writing the original program, whatever it is. Game credits are easily found; contact somebody on the credits to find out about the company to find out about the old company. Then contact the people who are (or were) the IP holders for the company. They might even give you written permission to clone and derive from it. That should take about an hour of work. Take that information to a lawyer and ask what to do next. It might just be a single lawyer visit, costing $100-$200, depending on lots of factors. That tiny investment of time and money can save you a fortune down the road. If all goes well, you could have written permission in hand, a lawyer telling you everything is great. If something goes wrong, you'll know that you saved yourself some eventual legal troubles. Either way, you'll be one step closer to becoming rich and famous. It should take less than a week.

I will never get a written permission of any kind since they are going to release, within about 2-3 years, Cheese II or something similar.

I understand that I won't make any further (good) step in the swamp without IP lawyear support.

However, sounds much more easy to me to use my game (not yet finished) with my friends, and never release it in public domain. It's a pity, since a lot of people may enjoy it, but I am not going to become an outlaw for that [attention]

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Original post by legolas558 I will never get a written permission of any kind since they are going to release, within about 2-3 years, Cheese II or something similar. I understand that I won't make any further (good) step in the swamp without IP lawyear support. However, sounds much more easy to me to use my game (not yet finished) with my friends, and never release it in public domain. It's a pity, since a lot of people may enjoy it, but I am not going to become an outlaw for that [attention]

You still have the original options:

You can try to get permission to make a clone. They might even like the idea of getting some intrest piqued if you can finish a clone some time before their "Cheese II" comes out. [cool] Of course if they come back with a nasty "no way, we'll sue you out of existance if you even try", then it sort of excludes the other options.

You still have the option of contacting a good game lawyer to find out how big of bait your game will be for a lawsuit.

You still might just make the game and release it. If it stays small, they'll probably ignore it as a fan site. If they send attack lawyers to you, they'll probably start with a Cease & Desist letter, meaning you'd need to take your web site down and put up a statement like "All your game are belonging to Cheese, Inc!"

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Original post by frob Quote: Original post by legolas558 I will never get a written permission of any kind since they are going to release, within about 2-3 years, Cheese II or something similar. I understand that I won't make any further (good) step in the swamp without IP lawyear support. However, sounds much more easy to me to use my game (not yet finished) with my friends, and never release it in public domain. It's a pity, since a lot of people may enjoy it, but I am not going to become an outlaw for that [attention] You still have the original options: You can try to get permission to make a clone. They might even like the idea of getting some intrest piqued if you can finish a clone some time before their "Cheese II" comes out. [cool] Of course if they come back with a nasty "no way, we'll sue you out of existance if you even try", then it sort of excludes the other options. You still have the option of contacting a good game lawyer to find out how big of bait your game will be for a lawsuit. You still might just make the game and release it. If it stays small, they'll probably ignore it as a fan site. If they send attack lawyers to you, they'll probably start with a Cease & Desist letter, meaning you'd need to take your web site down and put up a statement like "All your game are belonging to Cheese, Inc!"

Personally, I think they'll never realize that I exist. And I fear they are not interested in my work.

Another fact I am thinking about is that if I started the project from zero, I would have to care about my game not being similar to already existing ones. So I would never make a good game because I would have to skip all other games' features, even if obvious, because somebody else alredy crafted them before me. This cannot be the way things really go. I haven't yet decided what to do, however I will act basing on a 95% threshold of security.


Thank you for your post!