So, there's an old 1996 strategy game that I'd like to write a free clone of... Mainly because A) it rocks, B) it needs a modern engine because some aspects of it simply don't work on modern systems (or even didn't work very well back then - for instance multiplayer). I've seen clones of other games that requires you to have the original game installed, and instead of the original executable run the clone's executable from the game directory, loading the original resource files. An example would be OpenTTD (Transport Tycoon Deluxe), but there are also others. Now, what kind of legal problems could come from this? The license agreement expressively says derivative works are forbidden. Will this qualify as a derivative work? No material from the original game would be distributed with the clone - it would be the end user's responsibility to install the original and to install the clone in the game directory. I will continue looking for information if I decide to follow through on this (it was just an idea that has been in my mind lately), but any insights shared here would be helpful. Law is not my strong side. ;-)

Two things:
1. Read the FAQs and articles and other posts about cloning.
2. Don't do it.
3. I lied about the two things. #3: hire a lawyer if you ignore #2.

http://www.sloperama.com/advice/faq61.htm
http://underdevelopmentlaw.com/clone-games-and-fan-games-legal-issues/
http://www.gamedev.net/community/forums/topic.asp?topic_id=544351

Legal issues surrounding Clone Games & Fan Games-- Gamasutra

Perfect, will read those links.

Yes I was lazy, I admit it. ;-) 5 AM here

Edit:

Ok, seems I'd either 1) have to ask nicely (not too optimistic about it given publisher had several names changes and developer no longer exists), or 2) come up with something that can't be linked directly to the original, or 3) just make the clone, distribute freely it and hope it goes unnoticed/no one gives a damn (a somewhat unreliable strategy which I won't pursue), or 4) make the clone and keep it private.

Thank you for making my options more clear!

[Edited by - Beyond_Repair on January 12, 2010 10:50:54 PM]

Just to point out, it also depends where you and the company who's game you're cloning live. The Gamasutra article was very good ... if you're an American. For a start, in the UK (and probably most of Europe) there are no software patents, except in limited circumstances where the software forms part of an invention. So if Apple and Nokia's current legal battles centered around software to run a phone's touch screen and the touch screen was a new invention by one of the companies then maybe there'd be a case.

I'm currently working on a clone of an old early 90's casual game which I hope to turn into a commercial multi-platform product. Having had some discussions with this company in the past (15 years ago) about gaining permission to develop another version of the game I did write to them 12 months ago for permission for the proposed PC and Xbox versions. I never received a reply. Their web site was taken down just a few months earlier and it looks like the MD/CEO no longer has any interest in the games industry (he has another seemingly successful business), which is a shame as I'd have been prepared to pay a nominal fee for their IP.

In any event, the defence of fair use in the US doesn't apply to the UK. The UK's approach is much more restrictive. So I'm not sure what the situation might be with regards to waiver/laches. However, when you consider that most of the casual games industry is based around duplication and regurgitation of existing games and ideas, it's surprising that everyone isn't suing everyone else (like Atari did in the early eighties). Therefore there must be some leway.

For instance, ideas cannot be copyrighted so game designs can be copied (in theory). It's also been held that screen displays are not protected by copyright, only the program's underlying code. So the 'look and feel' of software in the UK is not generally protected which should make it easier to develop clones than it is in the US, albeit with original graphics and audio.

You also have to be careful if publishing or making something available online. It has to be legal and not subject to a copyright lawsuit in every country it's made available in (if you're based in the US, see Yahoo v LICRA for the legality aspect).

It depends how close the original you want to be.

If we're talking about something like say, Warcraft II, then making an RTS with orcs, elves and humans where none of the lore is copied, none of the spell/character names copied and so on then there should be little they could do. Between Lord of the Rings, Warhammer and Warcraft amongst many others the fantasy genre for example is fairly generic and no single company can really lay a claim to that kind of concept and idea.

When I was working on a Teamfortress clone for Quake III many moons ago, and Valve decided to try and stop our project, the outcome was simply that we had to change the class names and really not much else, although as the art assets were in a new engine and had been built from scratch they were somewhat different in appareance too to start with. It was enough to get us in the clear.

I find what makes me nostalgic about many older games was certainly not the graphics or anything like that, but the gameplay. You can recreate the gameplay and just put a different face on it no problem. In fact, even many AAA titles don't do much more than this half the time anyway.

There is some precedent in the US that allows for creation and marketing of emulators (e.g Sony v. Bleem and Sony v. Connectix) as the courts found the defendants who created software that allowed users to play PS1 games on their PCs were entitled to a Fair Use. Note that the emulators did not copy the actual game content, they just copied and mimicked tiny amouts of the PS BIOS in order to allow the games to operate on the PC. Your original post states you want to make the original game compatible with modern computers so technically that might be permissible under US law (I can't comment on UK or EURO law). However, I don't think these rulings protect you from liability under section 1201(a)(2) or 1201(b) of the DMCA which prohibit the marketing of anti-circumvention technologies. So you should check with an attorney to see if your proposal will subject you to liability for distributing a free emulator under your jurisdiction's laws and the country where the original copyright holder is located (as that is where they will most likely sue you).

Yes the idea was in a sense some sort of emulator. Writing an executable to display resource assets is little different from writing an executable to run an executable (which also needs original assets), but I think the former crosses the line whereas the latter doesn't since the former targets a specific game and can't be used for anything else.

But I've considered the whole issue further: Although I'd save much time on the artwork itself and retain more of an exact feel of the original by loading original files and retaining exact gameplay mechanics, it'd be a huge amount of work finding out exactly how the resources files fit together, and the exact details of gameplay, etc.

So I've come to the conclusion that (in spite of the legal issue) it's more time economical for me to rewrite everything from scratch. And in that case I might as well change a few names and mechanics (not to mention that the graphics will be completely different) and there won't be a problem.

As for the creativity of this, well, it's not a concern. My aim is to be able to play one of my favorite childhood computer games again. I've already got my share of creative projects...

Quote:

Original post by kdog77 There is some precedent in the US that allows for creation and marketing of emulators (e.g Sony v. Bleem and Sony v. Connectix) as the courts found the defendants who created software that allowed users to play PS1 games on their PCs were entitled to a Fair Use. Note that the emulators did not copy the actual game content, they just copied and mimicked tiny amouts of the PS BIOS in order to allow the games to operate on the PC. Your original post states you want to make the original game compatible with modern computers so technically that might be permissible under US law (I can't comment on UK or EURO law). However, I don't think these rulings protect you from liability under section 1201(a)(2) or 1201(b) of the DMCA which prohibit the marketing of anti-circumvention technologies. So you should check with an attorney to see if your proposal will subject you to liability for distributing a free emulator under your jurisdiction's laws and the country where the original copyright holder is located (as that is where they will most likely sue you).

legal emulators tend to strictly comply with DMCA safe harbors for reverse engineering, which is where things get tricky.

There will be a reverse engineering article up on gamasutra in the next couple of days that goes further into what is and is not ok as far as reverse engineering processes and methods contained within a game.

Just a couple of notes:
1. the Gamasutra article, if I remember what I wrote correctly, didn't actually go into the patent issue. That is because a) it's not an area I feel comfortable exploring in excessive detail, and b) it's not something that's had been raised in the cases I relied upon for that particular piece. In most court cases where patent matters came up (namely in re: accolade games iirc) the plaintiffs lost on fair use grounds. Interoperability is a different animal and, once again, is discussed in the reverse engineering article coming up. Or you can just go here

2. It's interesting to learn that GUI's aren't protected under UK copyright, and looking at the actual language used in UK copyright legislation I can see why that's the case. That being said, most major game companies register works in every country where the game is distributed; this to some extent leaves the door open as to where they choose to prosecute the matter.