It's not a grey area, it's a clear cut black area, it's not your IP but someone elses, you don't get to pick wether you should have a right to it, you don't. If you're not competing with a game they're making you're still competing with the Monopoly they should have to make such a game.

Now if you're keeping it private it's no less a black area, it's just that no one cares, you can be in the wrong but not get sued because the person you're wronging doesn't care or know, it doesn't make it white, it just means no one cares it's black.

It's not a grey area, it's a clear cut black area, it's not your IP but someone elses, you don't get to pick wether you should have a right to it, you don't. If you're not competing with a game they're making you're still competing with the Monopoly they should have to make such a game.

Thats the kind of attitude/reasoning I really don't like. "Its my property, and you cannot use it" - "Why?" - "Because its my propery and you cannot use it!". While you are not even wrong about how it functions that way, thats IMHO not a good thing. Need I remind you that companies are using the exact same "reasoning" to shut down (negative) reviews, caricarture, persiflage and what not... even though we have fair use to technically protect that. See, I can get behind the reasoning of companies/IPs taking indirect damage due to fan-fiction, but there should be some reasoning - everything else is, in my opinion, not really desirable.

I'm just bummed out that some companies are just like "You no take IP!" without even considering whether it hurts them or not

The boring reason is probably that it is a lot cheaper and safer to just say "No", then to set some employee on figuring out if it is OK or not.... (and monitoring it during its lifetime to make sure it doesn't deviate)

I am not a lawyer here, so here's my penny.

Is it legal to copy someone else's works, up to the point of similar/identical characters and their names and plot lines? This is copyright infringement, and it's a clear boundary that it is NOT legal.

Now there's also the fair use law, which is what you can probably use in court, but the way I see it, it is for making references to existing games, kind of like writing a book about game design and using Legend of Zelda as a reference point. You are not making a whole new game based off it, but you merely use it as a reference.

So, it's not legal and probably not going to be legal anytime soon.

However, legal process only takes place if the rightful owner of the copyright decides to take legal action against you. The judges, random lawyers, the Supreme Court are not going to be actively scanning the interweb for copyright infringement. The copyright owners have to be made known of these other derivative works, and they have to file a claim against you. If they do, be prepared to lose, because all odds are stacked against you.

If the owner does not file a claim against you, then nothing is being argued, and everybody moves along. Nothing happens.

So, what can we do about this? You can call or email the copyright owners for a permission to write a derivative game. You cite all the stuff you said, not for profit, open source, etc, etc, or perhaps you can make a business deal and write an agreement that you have been authorized to make a derivative work. As a matter of fact, this is happening all the time. This is how game studios are able to make licensed games, where the owner of the license is typically another entity. Once the legal owner has granted an approval, within the context that you are both happy with, then you may proceed with the development.

Need I remind you that companies are using the exact same "reasoning" to shut down (negative) reviews, caricarture, persiflage and what not... even though we have fair use to technically protect that.

Do you have examples of this case? I would be surprised if caricatures are allowed to be taken down by the court, as that should falls under fair use. Perhaps the author of the caricature decides to take it down anyway rather than take it to court which could be expensive for both parties.

Copyright owners can contact you about it, write a cease and desist letter or whatever they think can scare you off. Nothing restricts them from doing this. What you decide between you two is up to you. If you can't come up with an agreement, then you have the court which shall decide what happens. But if you decide to take it down before taking it to court, then case is settled. However, it's not that it's illegal to draw caricatures, it's just you prefer to take it down rather than going to through the costly legal battle in court, which benefit nobody except the lawyers.

No, it's never been legal to create any derivative works unless there's an agreement for it, which I shall advice the OP to do if he's truly passionate about it. You can always publish your work without permissions, nothing is stopping you from doing that. Just don't be surprised if you receive a C&D or taken to court.

The boring reason is probably that it is a lot cheaper and safer to just say "No", then to set some employee on figuring out if it is OK or not.... (and monitoring it during its lifetime to make sure it doesn't deviate)

I quess thats true. I imagine it is much easier that way, specially taking into consideration that for popular franchises, there might be a ton of fan-fic games popping up all the time. I quess its not that easy, really.

So, what can we do about this? You can call or email the copyright owners for a permission to write a derivative game. You cite all the stuff you said, not for profit, open source, etc, etc, or perhaps you can make a business deal and write an agreement that you have been authorized to make a derivative work. As a matter of fact, this is happening all the time. This is how game studios are able to make licensed games, where the owner of the license is typically another entity. Once the legal owner has granted an approval, within the context that you are both happy with, then you may proceed with the development.

As I said, Square Enix is out of the option based on multiple reports from people who contacted them. Since the original developement studio ceased to be like 12 years ago, I might actually contact someone at eigther nintendo and/or enix to ask for who the actual current property holder is. Trust me, I much rather do this with endorsement from the developer, and I would have already asked if I didn't already pretty much knew Enix response. Isn't even just word-to-mouth - known someone personal who wanted to make a 3D remake of the same game, but got said unspecific response back from them.

As I said, Square Enix is out of the option based on multiple reports from people who contacted them. Since the original developement studio ceased to be like 12 years ago, I might actually contact someone at eigther nintendo and/or enix to ask for who the actual current property holder is. Trust me, I much rather do this with endorsement from the developer, and I would have already asked if I didn't already pretty much knew Enix response. Isn't even just word-to-mouth - known someone personal who wanted to make a 3D remake of the same game, but got said unspecific response back from them.

And that's their choice. You can call them 'jerk' or 'ass', but it's within their rights to be so. If you have an Aston Martin sitting in your garage, and your whole neighborhood knows about it and wants a test drive, how would you respond to each of their request? Should you grant all of them? No. You can deny all requests, and sit on your lawn with a shotgun, get called asshole, jerk, evil, and you certainly won't be popular in your neighborhood, but it's your right to do so, because it's YOUR car, not theirs.

This stuff is their property not yours, and they can do whatever they want with it, including trash it and never make a remake, and deny everyone who tries to make a remake.

So - do you agree on my stance toward fan-fiction games, or do you think copyright-owners should have the total control over the work anyways?

I think there needs to be a balance. The options aren't "Something that sounds nice because I'm presenting it in a favorable way" vs "Opposite extreme with Nazis added".

I don't like the current copyright system. I'm in favor of it being overhauled dramatically. However, here I'm just going to point out some things you may not have thought of.

I'm basically claiming that it should be legal to produce a fan-fiction game given those points:
- Its free of any charge and/or profit for the producer.

What about the distributor? If any game can be recreated and released for free by the producer, what's stopping some distributor from having a subscription service to gain access to a bunch of "free' games that he's funding directly or indirectly?

Also, you might be making the assumption that things released for free don't harm the profits made by the original developer. If Sonic the Hedgehog gets made, and Free Sonic the Hedgehog also gets made, people will play the free one instead of the costly one.

- It fully states and qualifies the original authors of the work, which parts of their work has been used and what has been contributed by the author of the new game

How? "Uses Art Object XYZ_foo_blah.png" multiplied by several thousand. That means nothing.

- The producer of the fan-fic game formally informs the owner of the original game about what he is producing, giving him the possibility to inspect what he is doing. This is the point I'm currently not applying to, because I know both from personal contacts and research that in case of a direct contact enix response is basically a 0815 C&D-letter. So this point really is only viable for people like me if there is a legal possibility to keep doing what we are doing (or the studio in question is known for having a positive attitute towards fan-ficton work).

What you're saying is, they can "inspect" but not deny. What's the point of inspecting then?
And then you say, they can give response if they are in favor, but they can't deny if they're not in favor.

That's a fake choice. "Choose 'Yes' if you want to praise me and give me permission. Choose 'No' if you want me to do it anyway, without your permission"

K, so suppose I make a fantastic game. You want it legally supported for people to take my characters, and make porn with them. What, so we have no moral rights? (in the USA, we don't explicitly have moral rights, but we implicitly do from other laws. And in other countries that do have moral rights, they can be taken too far, just like copyrights)
Sure, they'd do that anyway, but you want it legally permitted. Legal permission is almost equivalent to government-approved and encouraged.

Or suppose I release an amazing song. You want it legal for the Klu Klux Klan to use my song as part of their presidential campaign videos.

Copyright is designed to reward creators for their work, ultimately for the benefits of consumers long-term. If they are over-rewarded, and at the expense of consumer long-term benefits (which I believe it is), then we need to make serious adjustments from the ground up, not throw out entire chunks of copyright law without considering all the ramifications just so we (as consumers) can get our short-term desires met.

Do you have examples of this case? I would be surprised if caricatures are allowed to be taken down by the court, as that should falls under fair use. Perhaps the author of the caricature decides to take it down anyway rather than take it to court which could be expensive for both parties.

Of the top of my hat, I can give you two examples:

Nintendo recently decided to disallow Let's plays on the platform youtube. As early as 2013, it allegedly already wrote a warning to youtube channels showcasing nintendos content in those vidoes (for those who don't know: Let's play is a form of video format where a person plays through a video game, while giving eigther entertaining, educational, or funny comments), stating that it was infringing copyrights. Unless I am mistaken, legally Let's plays should fall under fair use as "review", since while the Let's player is showing the full game more or less, its his commentary/video feed that actually makes the Let's play. First, nintendo wanted to eigther take down all those videos, or take all the revenue those youtubers are making. Appearently they have now offered a deal for those people, taking "only" 40% of the revenue of all nintendo Let's plays. Now please correct me if Nintendos behaviour is legally correct, but as far as I am aware this should fall under fair use. See https://en.wikipedia.org/wiki/Let's_Play_%28video_gaming%29, under "Legal issues".

Second example that I am personally aware of would concern internet movie reviewers like the "Nostalgia Critic", who has received multiple copyright claims and had videos taken down, from big news company TMZ (which he parodied in one of his episodes), and from (relatively unknown) filmmaker "Tommy Wiseau" due to his review of the film "The room". This is the two examples I know of, but appearently those things happened more frequently. Again, correct me if I'm wrong, but aren't movie reviews/parodies supposed to be fair use?

So thats what I actually know of. Now while its true that nobody was being sued here (most videos where eigther taken down by youtube, or the claim of copyright-infringment was taken back, or the alleged offender took the videos down to avoid trouble), this was just my point: Companies are already making ridiculous copyright claims, this is not something that needs to be enforced by all means without exceptions.

Again, correct me if I'm wrong, but aren't movie reviews/parodies supposed to be fair use?

Reviews are free speech. Anyone can review anything and give their opinion about it.

However, when you mix "reviews" (your content), with the entire movie, or substantial portions of it, that's not a review. That's a review + massive copyright infringement.

Parodies are fair use, yes - under certain circumstances. Parodies also aren't mostly copying content directly.

An example of a parody is Spaceballs - virtually all the content is original content mocking the Star Wars content. Not copying the Starwars content wholesale and slapping new audio over it.

The internet loves to wave the flag of "fair use" without understanding what it means. "Fair use" on the internet means it's "fair" for me to "use" stuff that's not mine, however I see fit, and redistribute it to others. That's not what fair use actually means in our legal system.

I'm all for expanding fair use, I'm all for shortening copyright lengths (I actually think different forms of media ought to have different lengths instead of trying to give them all the same length, when they clearly have different economic life durations), but there needs to be a balance between creator rights and consumer rights, and we need to be careful not to tip from one extreme (all in favor of creators) to the opposite extreme (all in favor of consumers), because ultimately, copyright law in moderation, is beneficial to consumers long-term, by benefiting creators in the short-term.

In my ideal version of copyright laws (not fully fleshed out), things like Let's Plays would be protected, because they create more value than they destroy, on average. Making freeware versions of existing games without permission (before the much shortened copyright terms expire), on average, destroys more value than it creates. "value" here is both economic (for creators) and long-term benefits for consumers.