They don't appear to have a license from Nintendo so what they are doing is breach of copyright. Nintendo just haven't found out yet (the internet is a big place) or have found out an have decided not to take action (unlikely as Nintendo have closed down a number of similar projects in the past).

Hi,

But it not an exact clone of the original Mario. The levels are different. Only the enemies and Mario are the same. And on that they are not charging any money or making any profit. They are only making money on advertisements, I guess.

That's the question I put in an earlier post. Is it okay to make money on advertisements on a clone of an original? At least they have worked hard and made the game which is quite wonderful.

Thanks.

Niteen Hatle.

Quote: Original post by niteenhatle
But it not an exact clone of the original Mario. The levels are different. Only the enemies and Mario are the same. And on that they are not charging any money or making any profit.

Copyright isn't about profit, it is about having some level of control over how your creative works are used.

Mario and the enemies are copied from Nintendo's games and as such it is a breach of copyright. It doesn't matter if they charge money, don't charge money or have advertising, it is still copyright infringement.

This comes up way to often, and was even described in links to FAQs given earlier in the thread.

Here is yet another review:

Copyright: Control over distributing and performing copies, replicas, etc.
Trademark: Control over words, terms, names, symbols, devices, and other distinctive elements when used in trade or commerce. Putting it out on a public web site qualifies as trade or commerce.

Although the examples I cite are in the United States, there are international treaties and agreements making this pretty much uniform around the globe. The Berne Convention, Paris Conventionand Madrid Protocol are earlier building blocks, modern WIPO work continues to make international agreements (for better or worse).

Quote: Exact wording from the law in the United States
the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; [Note: a video game is an audiovisual work]
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

It says nothing about profit. It says nothing about fan-created content. It says nothing about motivation.

Derivative works include pictures that look like the other pictures, and levels that are similar to other levels. Creating "your own artwork" that looks like anybody else's works is still a derivative work. This includes Mario image look-alikes, even if you color them purple and change his shoes into slippers. Creating a level that is similar to but slightly different from the Mario levels is still a derivative work.

Fair use can include, but doesn't necessarily include, using unauthorized works as placeholders while it is in-house. Fair use does NOT include distributing those same placeholders to anybody else.

Only the court can decide if your stuff is different enough to be considered an independant work or a derivative work. Make your own stuff. If you aren't creative enough to come up with your own stuff, talk to a real lawyer who specializes in copyright law.

If you derive from somebody else's work, expect to get sued even if you consulted a lawyer. Only the courts will make the final decision.




Next, trademark.

Quote: (1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which—

(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or

(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities,

shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

Mario is protected. The themes of the mario games are combinations of symbols and devices, and as such are all protected. A fan-produced similar game might cause confusion of connection, and so they might be prohibited.

Unlike copyright, trademark has requirements of being used in commerce or trade.

As long as you keep the thing to yourself, you don't have to worry about trademark violations. Yay. The moment you start distributing it on the Internet or elsehwere, you are using it in trade and are subject to trademark law.

Just like copyright infringement, only the court can decide if your stuff is different enough to be considered independant. Make your own stuff. If you aren't creative enough to come up with your own stuff, talk to a real lawyer who specializes in trademark law.

If you derive from somebody else's work, expect to get sued even if you consulted a lawyer. Only the courts will make the final decision.


So going back through the posts:

>> But what if my game is a clone of an original game (Mario Forever by Buziol Games, for eg.)? What then? Should I apply to the original game publisher for license to make a clone?

Yes you should. Nintendo probably won't grant permission.

>> Would I have the copyright?

Only if they gave permission. If they do not give permission, the courts (who are the only one who decide this type of thing) might decide to give the rights back to the origninal owner. In this case, the court might order you to give everything to Nintendo even though you wrote it.

>> What if I don't want to make profit by making the game? Can I make profits in the first place?

Profit doesn't mean anything.

>> but your game is already protected when you right it.

The content has copyright protection automatically when it is created. If you don't have the right to create the content, then it is possible the courts will assign those rights to the original group.


>> If i make a Mario clone, I can't sell it online? I can't make some money out of advertisements as well?

You may do so ONLY if you have permission from the copyright and trademark owners.

>> Should I register a copyright the mario clone(if i make it)?

Talk to a lawyer to help make that decision.

>> I want to make a character different than Mario. Giving it a local look. But I have to say this that the enemies might be different and the sound is going to be different. The game play will be similiar and maybe the levels might look similiar as well but not a total copy.

That is a derivative work. You are not authorized by Nintendo to create a derivative work. It is also probably a trademark violation because you are using one or more word, term, name, symbol, or device from the original Mario game.

>> But it not an exact clone of the original Mario. The levels are different. Only the enemies and Mario are the same. And on that they are not charging any money or making any profit. They are only making money on advertisements, I guess.

It is still a derivative work. Nintendo has the exclusive right to authorize derivative works. It is also a trademark violation because the enemies and Mario each qualify as a word, term, name, symbol, or device with rights owned by Nintendo. The themeatic elements of the levels are also symbols and devices related to the Nintendo products, and are protected.

>> Is it okay to make money on advertisements on a clone of an original? At least they have worked hard and made the game which is quite wonderful.

It is only okay with permission. Distributing a clone without permission is probably both a copyright violation and trademark violation.

The courts might decide that everything related to the game belongs to Nintendo, that you must put out additional advertizing stating that your game was not authroized by Nintendo, and you must pay for other damages.


The law is similar but slightly different around the globe. For local variations, talk to a real lawyer.


It is so much safer and easier to just be creative and come up with your own ideas.

Hi,

Frob, that was clear, precise and authoritative reply. That was something for me chew on!

Thanks you guys.

Now I have two options: Make an original game or Go Open Source.

Let's see what decision I take. It'll take sometime to swallow Frob's reply. But there is always a way out.

I haven't started on the game yet. So that saved time.

Thanks again.

Niteen Hatle.

Quote: Original post by niteenhatle
But it not an exact clone of the original Mario. The levels are different. Only the enemies and Mario are the same.

Surely the easiest way then is to not use the same enemies and Mario - just have some different guy with different names and graphics? (I imagine that it's the "Mario" character that needs to be more distinctly different, due to a greater risk of trademark issues - clearly, they can't copyright "italian plumbers with moustaches", but that could be a trademark when used in a game.)

It's not like you have to ditch the idea and go for a totally original game - just don't have Mario and exactly the same enemies.

Quote: Now I have two options: Make an original game or Go Open Source.

How would open source help?