Quote: Original post by Hodgman

Quote: Original post by frob
What you CANNOT do, however, is take other people's IP. I wouldn't call that draconian, just common sense. Even my young children know not to touch what isn't theirs.

Sorry, but when children draw crayon pictures of spider man, they don't know that they are stealing. "IP" isn't common sense to a child, it's a concept that we're indoctrinated with later in life.

That's an interesting analogy. Spiderman is very clearly the IP of Marvel, and it's primary medium is art. Yet a quick search on deviant art turns up 70000 artworks related to spiderman.

Given the terms of this dicussion, these people are distributing derivative works based on someone else's IP. Is it really any different to this case?

I don't know the legality of it, but my gut instinct is that a judge would allow this. (no idea why. spiderman is part of the cultural commons?)

Previous cases have allowed derivative works of IP for the purposes of parody/comment, with the proviso that they are cannot be mistaken for the original. Is that the issue here? Could a fan remake of a game be considered comment? How does that apply to the spidey drawings (which clearly could be mistaken for the originals)?

Quote: Original post by ChaosEngine

Quote: Original post by Hodgman

Quote: Original post by frob
What you CANNOT do, however, is take other people's IP. I wouldn't call that draconian, just common sense. Even my young children know not to touch what isn't theirs.

Sorry, but when children draw crayon pictures of spider man, they don't know that they are stealing. "IP" isn't common sense to a child, it's a concept that we're indoctrinated with later in life.

That's an interesting analogy. Spiderman is very clearly the IP of Marvel, and it's primary medium is art. Yet a quick search on deviant art turns up 70000 artworks related to spiderman.

Given the terms of this dicussion, these people are distributing derivative works based on someone else's IP. Is it really any different to this case?

I don't know the legality of it, but my gut instinct is that a judge would allow this. (no idea why. spiderman is part of the cultural commons?)

Previous cases have allowed derivative works of IP for the purposes of parody/comment, with the proviso that they are cannot be mistaken for the original. Is that the issue here? Could a fan remake of a game be considered comment? How does that apply to the spidey drawings (which clearly could be mistaken for the originals)?

If you are drawing Spiderman, and Marvel finds out, then they are completely within their legal right to send you letters threatening legal action.

If you continue with your actions, they have the legal right to take you to court and collect 'damages' and have a court order for you to stop. And they'll most likely win the case.


If everyone is running around shooting people, it still doesn't make it legal to do so.

Quote: Original post by ChaosEngine
I don't know the legality of it.....

When discussing what the law actually is, it is helpful to actually know what the law is. Saying what you think the court will do, based only on a lack of knowledge, is only going to cause confusion.

Quote: Original post by Talroth

Quote: Original post by ChaosEngine

Quote: Original post by Hodgman

Quote: Original post by frob
What you CANNOT do, however, is take other people's IP. I wouldn't call that draconian, just common sense. Even my young children know not to touch what isn't theirs.

Sorry, but when children draw crayon pictures of spider man, they don't know that they are stealing. "IP" isn't common sense to a child, it's a concept that we're indoctrinated with later in life.

That's an interesting analogy. Spiderman is very clearly the IP of Marvel, and it's primary medium is art. Yet a quick search on deviant art turns up 70000 artworks related to spiderman.

Given the terms of this dicussion, these people are distributing derivative works based on someone else's IP. Is it really any different to this case?

I don't know the legality of it, but my gut instinct is that a judge would allow this. (no idea why. spiderman is part of the cultural commons?)

Previous cases have allowed derivative works of IP for the purposes of parody/comment, with the proviso that they are cannot be mistaken for the original. Is that the issue here? Could a fan remake of a game be considered comment? How does that apply to the spidey drawings (which clearly could be mistaken for the originals)?

If you are drawing Spiderman, and Marvel finds out, then they are completely within their legal right to send you letters threatening legal action.

If you continue with your actions, they have the legal right to take you to court and collect 'damages' and have a court order for you to stop. And they'll most likely win the case.


If everyone is running around shooting people, it still doesn't make it legal to do so.

Drawing Spiderman for personal use would fall under fair use. Making a game about Spiderman would probably not.

Here is a good link on what is and isn't fair use. Unfortunately it's a grey area and it's all but impossible to say with 100% certainty what would and wouldn't be accepted. However, there is a clause that you can't be sued for monetary loss if you within reason believe that your use of copyrighted material was within fair use (that defense probably goes away once they send a cease and desist letter).

http://www.utsystem.edu/ogc/intellectualproperty/copypol2.htm#mm

Quote: The four fair use factors:

1.What is the character of the use?
2.What is the nature of the work to be used?
3.How much of the work will you use?
4.What effect would this use have on the market for the original or for permissions if the use were widespread?

Quote: Original post by ChaosEngine

Quote: Original post by Hodgman

Quote: Original post by frob
What you CANNOT do, however, is take other people's IP. I wouldn't call that draconian, just common sense. Even my young children know not to touch what isn't theirs.

Sorry, but when children draw crayon pictures of spider man, they don't know that they are stealing. "IP" isn't common sense to a child, it's a concept that we're indoctrinated with later in life.

That's an interesting analogy. Spiderman is very clearly the IP of Marvel, and it's primary medium is art. Yet a quick search on deviant art turns up 70000 artworks related to spiderman.

Given the terms of this dicussion, these people are distributing derivative works based on someone else's IP. Is it really any different to this case?

I don't know the legality of it, but my gut instinct is that a judge would allow this. (no idea why. spiderman is part of the cultural commons?)

Previous cases have allowed derivative works of IP for the purposes of parody/comment, with the proviso that they are cannot be mistaken for the original. Is that the issue here? Could a fan remake of a game be considered comment? How does that apply to the spidey drawings (which clearly could be mistaken for the originals)?

a kid scribbling a red and blue blob on a piece of construction paper isn't really comparable to a bunch of amateur adults, who are aspiring comic book artists, working for 8 years on a fan-fiction graphic novel that they are going to xerox and hand out in front of comic book shops. I wouldn't be surprised if Marvel would defend its IP with a C&D.

I want to feel bad for them, I really do, but I just can't. There aren't a shortage of adventure game ideas, and this is always a risk when dealing with somebody else's IP. I'm sure the team working on it knew it, and accepted that risk and it didn't work out for them, always a extremely likely possibility. Hell, look at JK Rowling who seems to be getting sued for plagiarism by every author who has ever written a story about wizards ever.

In retrospect, it probably would have been better for them after the first C&D scare to shift gears and try to release smaller, episodic content to capitalize on the less than suitable license agreement. But hindsight is 20/20, and perhaps that wasn't a viable option, whatever, I don't know.

But for a more interesting, and perhaps relevant perspective, I would go look at see what the guys over at AGDI say about this, having finished 3 remakes of Sierra IP.

Quote: Original post by Sneftel
C'mon, people. This has to be the most pointless argument I've seen all week. You're arguing from different points of view without bothering to check whether those points of view actually conflict or not.

Is Activision legally within its rights to revoke the license? Yes.

Is it a totally unwarranted dick move for them to do so? Yes.

Did the developers feel that they were cleared to proceed, based on Vivendi's agreement? Yes.

Should they have realized that they still had the Sword of Damocles hanging over their heads? Yes.

Really, if there's one thing we should all be able to get behind, given which message board we're posting on, it's that the destruction of the products of creative energy is always a bad thing, whether it's a semi-licensed KQ game, or a game based on wholly original IP, or even a crappy little Pokemon fangame made in DarkBasic. The bottom line is years of work, come to nothing. You can frame that as a cautionary tale for developers or as an indictment of publishers like Activision; the lesson is the same.

Excellent post. Kudos.

Quote: If you continue with your actions, they have the legal right to take you to court and collect 'damages' and have a court order for you to stop. And they'll most likely win the case.

win the case!!!!!
It will most likely come down to how the judge is feeling on the day


here is the russian book “Porry Gatter and the Stoned Philosopher”
remind you of another IP?

want to make a spiderman game? just do a pisstake game

Quote: Original post by zedz
(stuff)

You do realize that a) Russian law is completely different from US law and that b) US law explicitely differentiates between parody (OK) and infringement (not OK), right?

Quote: Original post by zedz

here is the russian book “Porry Gatter and the Stoned Philosopher”
remind you of another IP?

Um, the title reads Tanja Grotter and the magical contrabass. It also explains both the female features as well as the, um, contrabass, as well as distinct lack of stoning.

Seems that there's a whole series of them.

Quote: Original post by Antheus

Quote: Original post by zedz
[image]
here is the russian book “Porry Gatter and the Stoned Philosopher”
remind you of another IP?

Um, the title reads Tanja Grotter and the magical contrabass. It also explains both the female features as well as the, um, contrabass, as well as distinct lack of stoning.

Seems that there's a whole series of them.

And, importantly, while in Russia the books are legal you can't get a translation due to successful litigation by JK Rowling and Time Warner.

Quote:
While the series is legally published in Russia, it is not available in translation due to litigation on behalf of JK Rowling and Time Warner.[4] Having failed to obtain a cease and desist order in Russia, Rowling and Time Warner targeted publication in the Netherlands, where first translations of international editions are commonly published.[1] In 2003, courts there prevented the distribution of a Dutch translation of the first in the series, Tanya Grotter and the Magical Double Bass, after Rowling and Time Warner's lawyers issued a cease and desist order, arguing that the Grotter books violated copyright law, specifically infringing Rowling's right to control derivative works.[1] Yemets and his Moscow-based publishers, Eksmo, argued unsuccessfully that the book constituted a parody, permitted under copyright.

So, you could try to make a "piss take" game for Spiderman but I wouldn't count on you getting away with it...