I am trying to learn version control (using GitHub.)  I am looking for a small project and I am wondering what everyone knows about rewriting an older program again on GitHub.  It seems to me that it would not be allowed because of the possibility that the game could be reissued later.  The people that are doing this, are they being careful enough?  What is the ruling?

Thank you,

Josheir

Hey Josheir ,

I can't see any direct problem with this. I mean.. so long as it's not stolen code/assets you could frankly, post a rehash of an older program. There may be a problem around licensing, but I wouldn't worry about it unless you plan on making money. If it was a case of stealing an (idea) for example, then libre would have been sued by microsoft a long time ago.

Regards

Yeah, ideas are not covered by copyright. They would be covered by patents, but it's well-known that software patents are destructive to everyone in the field of programming and not something you can plan for. (Briefly: because there are too many patents, you can't know about all patents [some are not public yet], you can't easily tell the scope of a patent, you can't always get a license, you can't always work around a patent, and evidence that you knew of a patent results in triple damages, so you're best off going in blind and never researching patents ever. Note: I'm not a lawyer and this is not legal advice, but it's my understanding of how it works.)

There have been a ton of court cases in the past with regard to copyright scope. Game Theory actually did an episode talking about this ("Game Theory: My Fan Game is a CRIME?"), and it references a lot of those court cases. (Note: I think his understanding of copyright is slightly naïve, but mostly accurate.) Basically (again, noting that I'm not a lawyer and this is not legal advice), the trend is that unless you copy an obvious artistic design of some kind wholesale, you're not infringing copyright. Also, if there is no other possible way to execute an abstract idea (or any other possible way is clearly less optimal), you're not infringing copyright. So Nintendo has no basis to sue the developers of SuperTux, Take-Two has no basis to sue the developers of Freeciv, Team17 has no basis to sue the developers of Hedgewars, and for that matter Wendell Hicken has no basis to sue Team17 for the Worms series.

Thank you!

Josheir

Basically, you can copy the mechanics, just not the specifics. 

So you can write Josheirs Falling Block Game, just not “Tetris” and you certainly can’t use the music and art. 

In practice, most projects fly below the radar. 

On 5/5/2018 at 4:46 PM, Josheir said:

The people that are doing this, are they being careful enough?  What is the ruling?

Most are so inconsequential, so small, or such failures that the companies that can claim rights never even know about them.

Many developers will quietly watch the projects once they know about them. There will be no notice, no comments, no feedback good or bad. 

Among those being quietly watched, sometimes the developers will quietly watch and support.  As an industry we generally want to encourage fans to to spread the word and enjoy in the product, but on the flip side, we don't want anybody to interfere with our own products.

The typical reaction (but not universal) is for game companies to ignore fan projects as long as they stay as fan projects.  If they start to grow into a commercial product of their own they'll get legal demands. If they are a fan project that is large enough to compete with official sources, they'll get legal demands. If a fan project is starting to direct the main product line in a direction they don't want, they'll get legal demands.

Some companies are more protective than others.  Nintendo in particular is highly protective; fan projects routinely get legal demands the very first time they post something publicly that reveals how they clone some aspect of Pokemon.  The most lax are the products that have effectively died, the company entered bankruptcy, and the assets sold; somebody still owns the rights but they are unlikely to ever enforce them.

Exactly what can be copied is a complex issue, and it requires legal study to know the full boundaries.  Any distinctive element is protected.  Naming a planet Coruscant or Tatooine, naming a fuzzy species a Wookie or Ewok, those are enough to classify something as a derivative work of the Star Wars universe. Making a planet that is completely populated, or a desert planet, or making ape-like creatures, those are not particularly distinctive enough.  Lightsabers and their distinctive sounds are owned; laser swords that make a different sound are generic. Referencing 'transporters' and 'phasers' and 'sheilds' by themselves aren't a problem, but add too many elements and you can be a derivative of Star Trek or whatever other property you are copying.  

And parody isn't what most people think it is. If you're including a bit of something because you think it is parody, don't do that and take it out. Transformative parody is quite difficult to do in games. An example might be using SMB characters in a game where the entire purpose is to point out major flaws in the SMB universe, perhaps how Mario is not a hero but is actually a terrorist. Before claiming something is a parody, know that it almost certainly is not legally protected, and talk to some competent lawyers so they can also tell you it is probably infringement on copyright, trademark, trade dress, and assorted other IP laws.

If something is new enough to exist in computer form that means it is new enough to have IP protections.  It isn't in public domain.  Even when they product owner tells the world it is public domain, there are lawyers who argue some rights cannot be legally surrendered so it isn't fully available to the public. Unless they have written permission from the rights-owner their use is infringing even if the person would never enforce those rights. 

Simply:  Don't copy other people's stuff. Be creative and make your own stuff.  If you decide to copy other people's stuff, don't be successful.

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And parody isn't what most people think it is.

Parody is not the only possible reason for fair use.

I don't know what jurisdiction you live in, but the United States has quite strong fair use protections, and for good reason. All work is derivative in some way, so without good fair use protections, when copyright exists, it becomes more difficult to create new works. That would run directly counter to the purpose of copyright required by the Constitution ("to promote progress").

I'm not a lawyer and this is not legal advice. But the general rule is that as long as your use of a work is transformative, i.e. does not serve to replace the market of the original work in question, it's fair use. This applies to almost all clones; the only exceptions are those that actually reuse assets from the original (and redistribute those assets), or those that actually make a concerted effort to exactly replicate the behavior of the original.

Even so, a work also has to be copyrightable. You mentioned names. Names are not copyrightable under U.S. copyright law; they're too brief and trivial. Also not copyrightable are things like abstract ideas.

Of course, though, this is just in the U.S. Other jurisdictions vary, and fair use is in particular a foreign concept to many countries, unfortunately.

1 hour ago, JulieMaru-chan said:

You mentioned names. Names are not copyrightable under U.S. copyright law

Right. Names are covered under Trademark. Names like Han Solo or Minnie Mouse or Lisa Simpson are usually trademarked, and even if not explicity trademarked, they're defensible by the owner of the trademark(s) the names are associated with. 

Trademarks don't affect copyright issues. It's a separate matter.

Copyright: a monopoly on the copying and distribution of a particular work.

Trademark: a monopoly on being identified with a particular mark, such as a name or a logo.

Note, simply using a trademark is not trademark infringement. Using a trademark to refer to something else (in a way that can cause confusion) is. So it's perfectly legal, and in fact expected, to e.g. say "Nintendo" when talking about Nintendo. The same would go for the fictional characters you noted. If you're talking about Han Solo, the character in the series currently controlled by Disney, "Han Solo" is what you call it and Disney has no right to stop you from doing so.

The reason a clone (or, let's be real here, a fangame) might involve trademark infringement has absolutely nothing to do with the cloning process. The problem with it is by using a trademark you don't own, you imply endorsement from the party who does own it, and that is misleading. This is the sort of thing trademarks exist to protect against, consumer confusion, so that if you buy something that says "Nintendo" on it, you know it's a genuine Nintendo product. So trademarks are never a problem if you prevent such confusion from occurring; a simple disclaimer will do this. In fact, referencing Mario by Mario is essential to the creation of a work that uses Nintendo's copyrighted images in a manner that constitutes fair use. It's possible that PETA's "Mario Kills Tanooki" game (a perfectly legal parody, albeit silly in my opinion) would have gotten the message across if it was called "Fat Plumber Kills Raccoon Creature", but very likely avoiding the very legal use of the "Mario" trademark to inform PETA's audience what series the game is criticizing would cause confusion, which is exactly what trademarks are supposed to prevent.

To wit, if you have a game that makes legal, fair use of the character, Micky Mouse, then Disney has no right to order you to refer to Micky Mouse as something other than "Micky Mouse". Even if it's in such a way that it's hard to tell that Disney had no involvement in the creation of the game, a simple, prominent disclaimer will fix that: "The name 'Micky Mouse' is a trademark of Disney. This game is not created or endorsed by Disney in any way." In fact, such a disclaimer is extremely common. I have right now a package of Equate Cough Drops (Walmart's brand), which notes on the front, "Compare to Halls® Active Ingredient", and then points to an asterisk that reads, "This product is not manufactured or distributed by the owner of the registered trademark HALLS®." Very simple.

TL;DR: Trademarks are off-topic. As far as cloning goes, only copyright is relevant.

Note: Again, I'm not a lawyer and none of this is legal advice.

2 hours ago, JulieMaru-chan said:

Trademarks are off-topic. As far as cloning goes, only copyright is relevant.

Disagree strongly. Trademark violation goes hand in hand with copyright violation - either can cause cloning litigation. Just saying, don't only avoid violating a copyright - also avoid violating a trademark, if "rewriting older games."