Quote:Original post by iceware Well, since everyone agrees, I will semi-sorta-partly disagree to provide an alternate viewpoint.
There's no "alternate viewpoint". There's people who understand IP law and people who do not. Your brief aside about "parody" is sufficient to demonstrate that you're in the latter category. Which is fine, of course; most people, even most content creators, don't need to know IP law. But don't pretend you do.
Some people understand IP law, and some people do not. Which are you? You do not say. If you are knowledgeable, we would enjoy hearing any clear, coherent information you can provide about this topic. But snide comments provide no information.
I am capable of drawing reasonable inferences from large numbers of cases, which is what I did. As co-lead developer of two commerically released games, I was also "in the room" when IP lawyers discussed these issues. Those meetings did not produce any contradictions from the inferences I expressed, but being in meetings with IP lawyers does not make me an "expert" either. If I am wrong about something, and you know it, I certainly will enjoy being set straight, as I always do.
Quote:Original post by iceware BTW, my suggestion only works/applies because those three names are common words (alien, predator and quake).
You see where I am going? As long as your "alien" doesn't look exactly like the alien in "the Alien movies", you have no problems whatsoever. And as long as your "predator" is simply some kind of actual predator (alien or otherwise), you have no problems whatsoever.
This is incorrect and dangerous on a multitude of levels. First the use of Alien, Quake or Predator in the title of a video game will draw the attention of companies like Fox. It doesn't even matter if they are right or wrong - even if the OP would win a court case he isn't going to have the hundreds of thousands of dollars necessary to fight so all a company will need to do is send a cease and desist letter and his game will end up in the dustbin. Second - ANY likeness to an Alien(tm) used in conjunction with the word Alien in the title of a game could result in a suit for "passing off". The only answer to the question "how different do I have to make my character from Mario to avoid being sued?" is "100% different". Again it doesn't matter if the film company will win such a suit or not because the OP will almost certainly go bust if they choose to try and fight it. Thirdly - ignoring all the legal issues its a dumb idea because you don't get respect for doing knock offs. If the game is bad people will dismiss it as a cheap clone and if it is good that will just encourage the film companies to come after you. If you are going to invest the effort necessary to make a game then at least do something worthwhile.
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Also, they do not gain any special rights just because they are big companies.
Quote:Original post by Obscure The only answer to the question "how different do I have to make my character from Mario to avoid being sued?" is "100% different".
Define "100% different". Mario is a human, I can't make another human character? There is no such thing as 100% different. There are always going to be similarities. The best you can hope for is different enough that no sane person will see a similarity. And yet you're still going to be surprised at how many people will see one with things you never even heard of.
Be creative and original, but don't be paranoid either.
[Edited by - Codexus on December 8, 2008 10:52:14 AM]
Quote:Original post by iceware Some people understand IP law, and some people do not. Which are you? You do not say. If you are knowledgeable, we would enjoy hearing any clear, coherent information you can provide about this topic. But snide comments provide no information.
Hey, I didn't say that those groups encompassed everything. I'm in the middle: I understand a small amount of IP law, and more importantly, I know where the gaps in my knowledge are. Knowledge of the gaps, I think, is the more important part.
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I am capable of drawing reasonable inferences from large numbers of cases, which is what I did.
That's what I figured. But you drew them incorrectly. The "slight differences" you mentioned, for instance, are neither necessary nor sufficient for a work to be considered parody; see the text of the fair use exemption.
There's this surprisingly common thing computer geeks do where they assume that common law is riddled with loopholes, that it's possible to do whatever you want as long as you say the proper mumbo-jumbo (which must involve the words "whereby" and "aforementioned"). I guess this comes from working with machines that are deterministic and straightforward. Judges are not. They think for themselves. They understand and apply the spirit of the law.
Which means that the big problem is not so much spouting off about something you don't really know, as doing so convincingly. Someone who knows even less than you about the law, someone casting about for loopholes with phrases like "I didn't think it would be a big deal since I plan to give proper credit to the respectful owners of each franchise and keep the game free and open source" is going to latch on to anything real-sounding you toss at him, and believe in it through the weeks or months of development, right down to the day where he gets that certified letter in the mail and all that time he spent goes down the shitter.
This is not a helpful or a kind thing to do to someone.
One thing that's important to bear in mind-- unless you can afford to pay an attorney's hourly rate for any possible legal repercussions that may come about, it is ALWAYS better to err on the side of caution. That is what Obscure, Sneftel, et al are getting at, and it's why typically any suggestions given by frob, sloper or myself are extremely paranoid. The suggestions are given under the presumption that most independent game developers putting out small pet projects for their portfolios cannot afford legal fees and don't know enough about IP law to make wise judgment calls on IP issues. Otherwise they wouldn't come here for help.
I understand wanting to play devil's advocate, iceware. But please bear in mind that your IP lawyers want their fees. Creating any kind of game or product even loosely based on someone else's IP creates the risk of litigation, which is good for your attorneys, but typically bad for you. Your situation was probably different, and they may have been speaking in the hypothetical, or they may have been making these assertions based on the standards set by your E&O Insurance provider. Whatever the case, the context was probably very different than what we're seeing here, not the least because you were obviously willing and able to hire an attorney to handle these matters.
Your analysis of trademark law misses the boat. The term "Quake", when used to refer to a computer game, is understood by most consumers of game products to mean the popular game series. That's the basis of a trademark-- a mark that identifies a particular good in commerce. "Alien", "Predator", and "Quake" all identify specific goods in commerce, namely entertainment products. I should also mention that a quick search at the USPTO shows an active registered mark for Alien v. Predator. You're trying to make an argument that the terms are descriptive as opposed to distinctive, and therefore not entitled to trademark protection, but that's a) usually wrong; and b)something that's only affirmatively determined at trial. Same with whether or not a parody constitutes fair use. Yeah, you may win at the end of the day, but at what cost?
You always create a risk when you put out a product that closely resembles or directly uses IP from another popular product. What a lawyers tells you in confidence once they know all facets of the situation and have taken the time to do a risk analysis is not the same advice that you'll get from a forum where lots of people go to get help.
[Edited by - madelelaw on December 8, 2008 2:02:58 PM]
Quote:Original post by Obscure The only answer to the question "how different do I have to make my character from Mario to avoid being sued?" is "100% different".
Define "100% different". Mario is a human, I can't make another human character? There is no such thing as 100% different. There are always going to be similarities. The best you can hope for is different enough that no sane person will see a similarity. And yet you're still going to be surprised at how many people will see one with things you never even heard of.
Be creative and original, but don't be paranoid either.
The point these guys are trying to make is what will you do if you try to make it "different enough" and then get a threatening letter from Fox? Will you really risk a court case where you will be forced to hire a lawyer and pay thousands or tens of thousands of dollars? Or would you be scared off by their letter?
Many people are far too afraid of the "big bad wolf" - which is precisely what the big bad wolf wants. Why? So he can get *far* more than he deserves (both ethically and legally)! This phenomenon is so far out of hand in the world today, people have literally become afraid of big fat zeros. Then others repeat common wisdom like "when in doubt, play it safe". Wow, what brilliant wisdom. The problem is, wisdom like that just makes people feel they might be taking a risk to create ANY [male] [pudgy] cartoon-style human character for their video game, because somebody might think it is "the" mario!
Sheesh! But why do I care? My entire life is an endless series of creative endeavors, so I care about creative endeavors (and not just mine). I do not want anyone to "get in trouble". But I don't want potentially creative folks to be afraid to express their creative ideas and expressions either. Sadly, I see advice that reasonable people could actually take to mean "I better not make any game that contains an alien or carries a title that contains the word alien within it". That is simply absurd. I hope posters did not intend their advice to be taken that narrowly and literally, but it appears some did.
There is a massive difference between "get the law straight" and "be terrified of big fat rich bullies (like Fox) and therefore stay light-years away from anything that even the most paranoid person might imagine is an issue". These are approximately opposite appeals. One says "understand what is legal", while the other says "do not understand what is legal" (because "no need to know, since you limit your options so extremely that no person could even imagine any issue existed").
My point of view is this. I do not want creative people to allow bullies (or sincere people who have been intimidated by vague BS from bullies) to thwart their creativity. I do not advise people to break the law, and I did not. If my comments were not clear enough, the poster could (and should) ask me to state the basis for my comments (each comment might have a different basis), and we can continue from there. I assume anyone who gets advice or information from anyone on these forums, understands what they read are honest replies (which mine are), not supreme court decisions. Fortunately the forum format lets people grill repliers and judge the plausibility of their answers. But nobody believes they get legally binding statements here. OTOH, in my few encounters with lawyers over the years, *they* have been wrong and I have been right, so I trust them NOT. Some of these errors came from lawyers working on the same side as me, so I cringe when I hear people repeat self-serving soundbites that imply we can trust and depend upon opinions attorneys utter.
To be somewhat more specific. I will guarantee everyone here they can make a game about aliens from outer space attacking Brooklyn, and title your game "Alien Predators Attack Brooklyn" (even with the first letter of each word capitalized), and you will not get in trouble --- unless your "aliens" and "predators" look very similar to those in those movies (and your work contains other overt/obvious/suspicious similarities to boot) And I do NOT need to be a lawyer to figure that out! A large number of first hand observations of reality is perfectly sufficient to infer this is legal. What observations? Thousands of observations of thousands of games, books and films that that contain alien creatures and contain the word "alien" in the title. I can say this confidently because I am capable of first-hand observations and rational thought, and because the rational basis of IP law is obvious.
The following are some observations about being afraid of lawyers, and about the expense of legal battles and law suits. You need not copy my approach, obviously, but I have practiced what I preach here 3 or 4 times, and never regretted it. First, do nothing unethical or illegal (they are sometimes very different, sadly), but then, if some bully/lawyer/predator threatens you --- and they are famous for doing that --- I suggest you totally ignore them. Most important, do not spend a penny, do not hire a lawyer, do not write a letter, just ignore them. And whatever you do, spend *zero* seconds worrying about them and their threats. They are absolute *masters* at getting you to do what they *cannot* make you do legally, but *can* fake you into doing to yourself simply by threatening you. If you take the advice others have given here, you will immediately spend yourself into the poorhouse while your lawyer gets rich (and their lawyer gets a mere $250~$500 for writing the threatening letter to you). See how that works? They are wrong, you are right. But they spend $0 to $500, and you spend yourself into the poorhouse or worry yourself into an early grave. They are running a classic "protection racket" - nothing more, nothing less.
Yes, I did nothing. And what happened? Nothing. What do I say when their lawyer calls after I ignore endless letters? Depends, though after seeing how well "nothing" worked the first time, I decided to answer with some variation of the following: "I am right and you are wrong. But I know your game; you want me to waste my time, effort and attention on your stupid threat, and waste money on lawyers. Well, I'm not spending one second on your foolish game after I hang up this phone, and I will not waste one penny on lawyers either. Goodbye. Click". Every time, that was been the end of the story. But I will repeat again; start out by being ethical and legal. Then utterly ignore the bullies - or you *are* their prey. It is *they* who are the predators. But they are just special effects, not real. They convince you to harm yourself! Don't fall for their silly Jedi mind tricks! What would I do if they were ever stupid enough to push their luck all the way to court? I would appear without a lawyer and let them have it right between the eyes - with simple facts BTW, not fancy talk or tricks or expensive suits. I refuse to let them own me.
When I read advice like, "it doesn't matter whether they are right or wrong, it only matters whether they might say !boo!", I know my concerns are justified. That advice also proves how far out of hand the modern world has gotten in favor of bully-predators. Listen to what people in this forum are saying! They are (unknowingly, I hope) repeating the predators self-serving sounbites!
Yes, it really *does* annoy me when good people are harmed and held back by jerks and bullies. Many honest people have been faked into supporting the rotten people in this world, some by convincing creative folks to "give in". That makes me sad. But each of you knows yourself better than I do. If you are (you must be honest with yourself) the kind of "weak minded fool that falls prey to Jedi mind tricks", then go ahead and play it super-duper-ultra-hyper-crazy safe. I refuse to play life safe when it helps those bullies thwart the dreams and productive juices of creative folks. I am no weak minded fool.
None of the above addresses what to do if - after significant observation of similar situations and sufficient reflection - you cannot "figure it out". Then I'd suggest you spend a couple days in the library (not on this forum). If you have significant wealth, you might want to follow up with real IP lawyers if you must, though I would not trust them myself. If I couldn't resolve the issue from my own research, then I would back off and find something different. If you are worrying about crossing a line that you see other [major] books/games/movies/media have crossed many times - you can be fairly certain you are safe AFTER you check to make sure those examples did not get special permission from the owners to "step over the line" (which makes it okay). The granting of permission is almost always stated in fine print somewhere or other (read all credits carefully in slow motion).
I do not give legal advice, whatever that means. That should be obvious. But here is my personal advice, from personal experience, about legal advice. My advice is, "legal advice is not worth much". If lawyers and judges give such clear, reliable opinions, then why are endless legal battles waged in this country? For that matter, why do lawyers always give "opinions", not advice? One answer is, many lawyers are lazy, many lawyers are corrupt, many lawyers are careless, many lawyers are incompetent, and many lawyers are self-serving money grubbers who prey on the misfortunes of others (starting with their own clients). And as I pointed out above, many of them spend most of their time creating misfortunes for innocent folks, because your misfortune (created by them or not) is what generates their fortunes.
To those who disagree with me, you are welcome to your opinions. I feel sorry for you, because the predators of the world convinced many of you to live a smaller, less rich life than you might otherwise have enjoyed. You know the predators have held people down when the most common advice to questions like these is, "stay a million miles away from *anything* that might make them wonder whether they should bother to say !boo! to you". So yes, I AM saying that I personally I do not "ALWAYS err on the side of caution" (as was advised), and I do not advise anyone else live their life "always on the side of caution".
I do not suggest doing "knock offs" either. Fact is, everything I do is extremely original, and I enjoy it that way. OTOH, I have watched a few parodies made me laugh, and were very enjoyable. So I refuse to advise someone who appreciates that form of expression (once or often in a career/lifetime) to "ignore your passion, do something else". The gap between an actual "unethical and/or illegal ripoff" and what some people here suggest (in the name of fear) is enormous. Exactly where is the dotted line between them? No discussion of that topic is possible while everyone screams "fire" in this theatre. Maybe the original poster actually wanted actual information, not third-hand soundbites from bully lawyers.
By all means, lock yourself in a cage for life to humor dirty rotten bullies who hate you and play with you like a puppet --- if that is your choice. Only you can decide that for yourself. Unlike many others here, I will not make those choices for you. I made my choice long ago, I never regretted it, and none of those bullies or lawyers bothered to take me to court, or follow through on any of their bogus threats. Why? Because they knew that I knew they were liars playing a dishonest game of intimidation (and "get away with whatever they can"). I think it helped when I made it perfectly clear I understood the game they were playing, and dispassionately but firmly refused to play. I refuse to help them enslave me, or sanction their malicious evil.
[Edited by - iceware on December 9, 2008 3:00:40 AM]
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Now listen up. The terms "alien" and "predator" and "quake" have been around for thousands of years, as have the referents. Just because some big company makes a movie about an alien and a predator does NOT prohibit you or anyone else from making additional media about such - as long as your alien/predator/etc are not exact copies.
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Some people understand IP law, and some people do not.
The latter is right, the former is dangerous misinformation. Reality is much more severe, you can be sued for 7-figure compensations even if you do not use a registered trade mark, but only produce something that looks vaguely similar or has vaguely a similar plot. Dreamworks and Warner Bros. learned this lession. Do you think you understand IP law better than them?
Regarding intellectual rights on common words, make yourself familiar with the middle english word "hobbit" which existed for centuries before a man named Tolkien was born. Then look up Tolkien vs. TSR and ask yourself why TSR had to change all references to "halfling".
Quote:Original post by iceware Sadly, I see advice that reasonable people could actually take to mean "I better not make any game that contains an alien or carries a title that contains the word alien within it".
Are you reading the same OP as everyone else? The question was, "can I combine Aliens vs. Predator and Quake?" Your whole rant has nothing to do with the OP - you're talking about being afraid to use your own IP in your own games. The OP is about using the IP of AvP and Quake. The former is fine, the latter is not.
Quote:Sayeth iceware: Now listen up. The terms "alien" and "predator" and "quake" have been around for thousands of years, as have the referents. Just because some big company makes a movie about an alien and a predator does NOT prohibit you or anyone else from making additional media about such - as long as your alien/predator/etc are not exact copies.
IOW, as long as your alien, predator, or quake don't run afoul of copyright law (that's what you're saying). But it's also important that you don't make a movie, game, or comic book whose title uses the words alien, predator, or quake in a manner that could run afoul of trademark law. Certainly you can use the words alien, predator, and quake in the title of a work in such a way as not to cause a lawsuit. And certainly you can portray aliens, predators, and quakes in such a way as well. The fine distinctions that can help one determine where to draw the line are best learned through an in-depth consultation with a legal professional.
Quote:Further proclaimeth iceware: My advice is, "legal advice is not worth much".
Legal advice from a legal professional is worth a lot more than legal advice from you. You should refrain from giving further legal advice to hapless newbs.
