Consider that had George Lucas actually *invented* a lightsabre in 1977, instead of it featuring in a film, by 1997 it would be out of Patent protection and we'd all have thought it was right and proper that the artificial monopoly was broken - and each year we'd be only delighted by the next wave of iteration by our favourite competing arms manufacturers!

Probably not as with something as complex as a lightsaber it should be very easy for a paten lawyer to continuously evergreen it.

OK George Lucas is where I have to hold my hands up and say OK allow the fans to make what they want because he royally fucked us over with Episodes 1,2 and 3. :D

Well, than in order for something like my idea of a fan-fic legalisation to happen, information about the difference is key. I wasn't even putting that much focus on the actual developers - like, I quess that its true that not even all CoD players know that there are two studios alternatively producing the next game. What I meant with that is more on the lines that its developers actually officially endored/licenced (I'm missing the proper english word here, sorry, I hope you still get it) by the IP holder - versus fan-made games which are, well, made by individual fans.

So I quess we can agree on that if it is possible to make a clear differenciation between what is fan-made and what is officially made, this would not be a problem? Since from what you wrote it appears that confusing a fan game for an official game is the main problem, not the fan-game itself (except point B) maybe).

Proved his point nicely there as there are actually three studios developing CoD at the moment. (Also all the other studios that help out for each release but three main ones)

But if the law is relaxed to allow Fanfic games then it would also mean that other corporations could also do the same. Meaning that Ubisoft could just start making Mario games or Microsoft could start making their own street fighter game. Sure they wouldn't be able to sell them but if Microsoft were to be able to give these games away it would still be a commercial advantage to them.

In essence this would be true, I would like to think that there could be some sort of regulation to the scope of those projects, to keep big companies from using the IPs, but allow individuals to do so... I don't have any good ideas how this would look yet, but I think you could work out something.

No this is completely wrong. You don't need to alter somebodies perception that much. If an IP is associated with only quality products and somebody starts making lesser quality products then that IPs reputation has been tarnished.

And that is exactly what I meant. The existence of a bad fan fiction game doesn't do anything to the IP per se. If I were to make a bad mario game, and never release it, than it would exist, but nobody would know about it so it doesn't matter. If I were to put a bad mario game online, but nobody would come across it, same here. If I were to put a bad mario game online and everybody would come across it and play it, but knows that it is not part of what officially is part of the IP, and thus does not alter their perception of the reputation of the IP and their actions towards it, again, there is no harm done. Only if people actually start to somehow conflate this bad fan game with the official products, and alter their action (buying less products, producing bad word-to-mouth due to it...) that is when you do damage to the IP.

From my own point of view, this is unbelivable. I personally would never ever, if I knew that it was a fan game, draw any (negative) conclusion from any fan-game whatsoever, so I find it hard to belive that this actually happens in case that people know that said game is a fan game.

OK this is a rather extreme example but, the OP is talking about an old game that hasn't been seen for 20 years but he has no idea about what future plans Nintendo may have for it. Its all very well saying use it or loose it but businesses have roadmaps. The game in question may already be scheduled for a reboot but somewhere 5 years down the line on Nintendos roadmap.

Trust me - IF this happens to stay true I will willingly take my fanfic off the internet the news hit the table. Part of why I've been making it is that there was no sequel. Also, just since focus has been drawn to my personal project a few times - it is virtually impossible that the game I'm targeting is going to be used again. I would be so fucking happy if they did it (before starting this I signed an online petition towards enix to produce a sequel to Terranigma, so yeah...), but they won't. Technically I can't know that but I would bet a huge ton of money and even my ass that they won't. Kind of comes already from the context of the game - its actually part of a 3-part series of games with all unique stories and settings, only some key elements in common. Terranigma wasn't even released in US, so if they ever were to do something with the game, they would rather start with the first of the series. The game in question was never designed to be a stand-alone game. So the only think to happen is if they were to remake the whole "Soul Blazer" series. There is literally no way they make a direct sequel to eigther the soul blazer series, or the terranigma game itself. No, I don't technically know that, but I have strong faith the until the day I day, I will never see an official product related in any way, shape or form to terranigma (which, as a huge fan of the game makes me even more sad than that I cannot legally work on my fan-fiction ).

Proved his point nicely there as there are actually three studios developing CoD at the moment. (Also all the other studios that help out for each release but three main ones)

Ok, point taking, I didn't actually know that. Still - I would know to differentiate any game that was neigther made by any official studio, what was my original point, maybe bad worded.

Can you separate an IP from its implementation? For instance, let's say Nintendo in 2040 still owns the IP for Mario, Luigi, Bowser, etc. But we're able to make "sequels", "spin-offs", and derivative works from SMB1, SMB2 (JPN), SMB2 (US), SMB3, SMW, and Super Mario 64. Is that possible or are the IP and its implementation far too coupled to make that work?

In short, we can make Mario clones from the 8, 16, and 64 bit era, but we can't make a remake or similar work of Super Mario Galaxy.

I guess that I can assume that the thread believes that an IP can't be separated from its implementation. For the purposes of copyright, fair use, and derivative works.

Can you separate an IP from its implementation? For instance, let's say Nintendo in 2040 still owns the IP for Mario, Luigi, Bowser, etc. But we're able to make "sequels", "spin-offs", and derivative works from SMB1, SMB2 (JPN), SMB2 (US), SMB3, SMW, and Super Mario 64. Is that possible or are the IP and its implementation far too coupled to make that work?

In short, we can make Mario clones from the 8, 16, and 64 bit era, but we can't make a remake or similar work of Super Mario Galaxy.

It'd be hard to draw a line there. You'd have to determine what part of the IP you are referring to.
That's why I was saying sequels and spin-offs would have to wait until the franchise copyright expires, rather than the individual work expires. When the individual work expires, it'd be open for translations, ports, open-source versions, etc... Similar to how a book being translated into a new language is still the same work (just derivative), or how a book's contents getting reprinted on different material or made into an audio book is still the same work (as a derivative work).

It'd be hard to draw a line there. You'd have to determine what part of the IP you are referring to. That's why I was saying sequels and spin-offs would have to wait until the franchise copyright expires, rather than the individual work expires.

This is where it starts to get really complicated.

The safest answer would be that you need to wait until both the copyright has expired AND the trademarks on all the characters, logos, and other distinctive elements have become dead and ceased use in commerce.

It is not enough for the trademarks to die due to lack of use, since copyright will persist until you are dead. Even if your descendants want to use the material after copyright expires, trademark protections exist as long as it remains used in commerce.

Let's do a little thought experiment with that.

There are a few people who argue that the original Steamboat Willie, Plane Crazy, and Gallopin Gaucho cartoons expired because of their first screen audience release dates and published copyright information. Let's use that rather than Super Mario Bros for the first part of this thought experiment.

If these were in public domain today, you could make copies of the original works. The first step would be to track down one of the 1928 films. You couldn't use any of the many re-releases because they touched them up, cleaned the audio, repainted some bad frames, and those later re-releases are not public domain.

Next, you would only be allowed to use the 1928 version of mickey mouse. He looked very much like a mouse, radically different from today's mickey mouse. You could derive from the black and white Mickey rodent wearing overalls, the Minnie rodent wearing a skirt, Pete the cat, and Oswald the rabbit. All of them would be the 1928 versions, not the 2015 versions.

You could not use any of the trademarked terms or trademarked logos since trademarks persist as long as the thing is used in commerce. Even though the 1928 film would be useable as a copy, you could not create your own Mickey Mouse line of products due to trademark rules. Similarly Minnie and Pete are both names covered by trademark.

So now bringing it back to Mario.

Wikipedia tells me Mario first appeared in 1981 in Donkey Kong (then called "Jumpman"), Luigi in 1983 in Mario Bros. Assuming no other changes, that version of Donkey Kong will enter public domain in 2077, and that version of Mario Bros will enter public domain in 2079.

So fast forwarding to 2079...

For convenience, assume all the characters in the franchise are still in active use, trademarked, and no other changes to law have happened.

You could make and distribute copies of the original Donkey Kong published in 1981, and the original Mario Bros published in 1983. It was made for arcade machines, and by 1983 had been ported to a few systems.

You could make derivative works using those characters and those old stories, but not making use of whatever advancements have happened between 1984-2079, those are still protected.

You get the original blue/red/orange Jumpman/Mario, the white faced (remember Japanese beauty) red-head pink dress "the Lady" (later named Pauline), the two-tone blocky Donkey Kong, and the blue/orange/green Luigi, as they appeared in 1981 and 1983, not as they would be depicted in 2079.

You don't get any story developed between 1984-2079. They were brothers as established in 1983, but any story revelations or changes made after 1983 would be off limits until they enter public domain.

You could not use Princess Peach or Daisy or any other modern characters, because they had not been introduced before the 1983 cutoff date you have in 2079.

Assuming the names are trademarked and used in commerce in 2079, you could use the names in a direct clone because that is from copyright, but could not make your own product with the same names or iconography covered by trademark in 2079.

So if you're alive in 2079, and you still have some really old arcade boxes or Atari 2600s or whatever else they were ported to, or someone manufactures those devices in 2079, then you can make all the copies you want since copyright will have expired. Your rights to make clones and similar products may be somewhat by trademark and other IP laws, but direct copies could be enjoyed by anybody.

Wikipedia tells me Mario first appeared in 1981 in Donkey Kong (then called "Jumpman"), Luigi in 1983 in Mario Bros. Assuming no other changes, that version of Donkey Kong will enter public domain in 2077, and that version of Mario Bros will enter public domain in 2079.

I think you even need to pessimize this further. Shigeru Miyamoto is well and alive, and assuming average life expectancy for Japan he will remain alive for another 19 years, which puts us in 2034. His works, regardless of first publication date, will enter public domain earliest in 2084 (Japan and 3-4 other countries), and in 2104 for the rest of the world (including USA).

It may by the way be up to +1 year beyond that, since for example in Germany the law says "70 years", but the small print reads "...starting to count on December 31 of the year of death".

Wikipedia tells me Mario first appeared in 1981 in Donkey Kong (then called "Jumpman"), Luigi in 1983 in Mario Bros. Assuming no other changes, that version of Donkey Kong will enter public domain in 2077, and that version of Mario Bros will enter public domain in 2079.

I think you even need to pessimize this further. Shigeru Miyamoto is well and alive, and assuming average life expectancy for Japan he will remain alive for another 19 years, which puts us in 2034. His works, regardless of first publication date, will enter public domain earliest in 2084 (Japan and 3-4 other countries), and in 2104 for the rest of the world (including USA).

It may by the way be up to +1 year beyond that, since for example in Germany the law says "70 years", but the small print reads "...starting to count on December 31 of the year of death".

This got me thinking. Shigeru Miyamoto invented Mario so the copyright will last until 50 years after his death but, he was working for Nintendo so Nintendo owns the copyright. Does that mean that it is in the best interest of Nintendos shareholders to keep him alive and monitor his health for as long as possible?

What happens if he quits or goes to another company? Nintendo still owns the copyright but that asset is dependant on the life of somebody who no longer has a working relationship with them.

I mean I've worked for several large multinational entities and nearly everywhere I've worked has some form of standardised header comment that I've had to use that mentions the copyright, the date and my name. Does that mean that rather than providing free fruit and Gym membership they could actually right it into my contract that I have to stay healthy and make it mandatory that I attend the Gym?