Aren't Devs scared of being sued by the owners of the franchises they reflect on their games?

[SpoiledPrince]

It's a question mainly for Devs that are working on games that portrait well known characters or settings from on-going franchises, but if anyone else is interested in answering, they would be welcome too.
I've seen games based on very recognizable IP (intelectual properties) with an open Patreon, which has greatly surprised me. Not that I intend to follow their steps (my cute little game about an abusive, corpse-loving vampire family will never be accepted there) and monetize it, but it made me worry about them a bit.
And another question: could be a campaign of a tabletop RPG in videogame form be considered as an abuse of the IP if you provide it for free?

 

[anne O'nymous]

I've seen games based on very recognizable IP (intelectual properties) with an open Patreon, which has greatly surprised me. Not that I intend to follow their steps (my cute little game about an abusive, corpse-loving vampire family will never be accepted there) and monetize it, but it made me worry about them a bit.

It depend of a lot of things.
Basically speaking, it's the opposition between the right for parody (in the game author case), and the right to protect your image (for the owner of the IP).
Therefore, in one hand there's this question : Is your game effectively a parody or is it just using the same visual, visual codes, universe, whatever ?
And on the other hand, there's this one : Have the product a negative impact for the image of the "product" ?

If it's not a parody, you're domed, same if it have an effectively negative impact for the image of the "product". And there isn't many impact more negative than a porn game.


Now, for the question by itself, well... I think that the answer is really simple : The devs aren't aware of the risk.
I mean, Patreon clearly ban incest since a long time now, reason why there's so many "landlady games" and so many incest patch. Yet, there's few games on Patreons (that I'll not name for evident reasons) that are directly, clearly and effectively incest games, without any artifice to make them looks like something else. Theirs authors don't know, or don't care, and the same apply for most of the games using protected content.

And another question: could be a campaign of a tabletop RPG in videogame form be considered as an abuse of the IP if you provide it for free?

RPG's rules are intellectual property like any other. Therefore, yes it's an abuse, unless they are under the open game license, or any similar license. But here it's still another mater than the one above, because the world, names and rules are relatively shared between RPGs.
By example, you can't be sued because you simulate a D20 for the attributes check, because your characters have an Armor Class or Health Points. In the exact same way that you can't be sued because your text use a sentence that happen to be in another text. Here it's the percent of similitude which will determine if it's your system, inspired by [whatever RPG], or if you used directly the rules of [the said RPG].
But for the background, it fall back to what is said on top of my comment. You can't have the same towns, the same characters and all. But you can have towns or characters that will make players think about your inspiration. By example, a desert planet, full of sand, on a Sci-Fi universe, will make them think about Tatooine or Dune, depending of what live on this planet. But as long as it's named differently and that the people living in it are just "look alike", normally you're safe.

 

[SpoiledPrince]

It depend of a lot of things.
Basically speaking, it's the opposition between the right for parody (in the game author case), and the right to protect your image (for the owner of the IP).
Therefore, in one hand there's this question : Is your game effectively a parody or is it just using the same visual, visual codes, universe, whatever ?
And on the other hand, there's this one : Have the product a negative impact for the image of the "product" ?

If it's not a parody, you're domed, same if it have an effectively negative impact for the image of the "product". And there isn't many impact more negative than a porn game.


Now, for the question by itself, well... I think that the answer is really simple : The devs aren't aware of the risk.
I mean, Patreon clearly ban incest since a long time now, reason why there's so many "landlady games" and so many incest patch. Yet, there's few games on Patreons (that I'll not name for evident reasons) that are directly, clearly and effectively incest games, without any artifice to make them looks like something else. Theirs authors don't know, or don't care, and the same apply for most of the games using protected content.




RPG's rules are intellectual property like any other. Therefore, yes it's an abuse, unless they are under the open game license, or any similar license. But here it's still another mater than the one above, because the world, names and rules are relatively shared between RPGs.
By example, you can't be sued because you simulate a D20 for the attributes check, because your characters have an Armor Class or Health Points. In the exact same way that you can't be sued because your text use a sentence that happen to be in another text. Here it's the percent of similitude which will determine if it's your system, inspired by [whatever RPG], or if you used directly the rules of [the said RPG].
But for the background, it fall back to what is said on top of my comment. You can't have the same towns, the same characters and all. But you can have towns or characters that will make players think about your inspiration. By example, a desert planet, full of sand, on a Sci-Fi universe, will make them think about Tatooine or Dune, depending of what live on this planet. But as long as it's named differently and that the people living in it are just "look alike", normally you're safe.

Thank for such a clarifying answer! I started my game thinking that if I was doing a free fangame I'd be safe, since I was making no money out of it, but... I have recently started doubting it. I guess I'll have to change many names and thing of the setting and stop calling it "a fangame" to avoid attracting the wrong kind of attention. Which is a shame because the whole game is a tribute to he tabletop saga...

 

[obibobi]

1.The game is flying under the radar and they simply don't know about it, this is actually the least likely.

2.They know about it and don't want to draw attention to it so ignore it because the general public has no idea it exists.

3.They know about it and don't mind it exists because it promotes the brand

If the wider public was aware of these games and they where taking in serious money then they would come down hard.

 

[Farnuge]

Thank for such a clarifying answer! I started my game thinking that if I was doing a free fangame I'd be safe, since I was making no money out of it, but... I have recently started doubting it. I guess I'll have to change many names and thing of the setting and stop calling it "a fangame" to avoid attracting the wrong kind of attention. Which is a shame because the whole game is a tribute to he tabletop saga...

Its actually quite hard in a court setting to prove that a porn parody is damaging to your brand, because you'd need to prove that the people that regularly buy your product are ALSO the same people that would notice the porn parody, and then decide to no longer support your brand because of the porn. I actually had never seen Avatar: The Last Airbender before seeing the porn, but the porn actually increased their brand recognition.

Good luck finding people that will admit to loving Simpsons and Simpsons porn, but then somehow end up no longer loving the Simpsons after consuming that porn. Second, you'd need to prove that people who weren't before interested in your brand, find the parody porn first, and then having consumed that porn, aren't interested in your original product. Again, a lot of anime I've watched simply due to seeing the porn first.

In reality, the biggest thing that would happen isn't the chance at monetary damages, but the company use the threat of lengthy court battle to stop someone from creating a product. However, as long as you stay small - the time really isn't worth it for the company, and things like the Streisand Effect are very real. Its actually better for Disney to never acknowledge the porn rather than having a giant court battle that shines a light on it.

 

[Adabelitoo]

A lot of parody games (and games in general) are just really lucky to float under Patreon's radar to get away with things like underage and incest, or they get big enough to the point that when Patreon notice those games, it decides to look away.

 

[desmosome]

1.The game is flying under the radar and they simply don't know about it, this is actually the least likely.

2.They know about it and don't want to draw attention to it so ignore it because the general public has no idea it exists.

3.They know about it and don't mind it exists because it promotes the brand

If the wider public was aware of these games and they where taking in serious money then they would come down hard.

There is one more, which is probably the most likely.

They know about it, but they can't be arsed to go after it. It wastes time and resources to squash all the IP transgressors, and it is simply not worth it unless the game gets extremely popular or profitable.

 

[Deleted member 1684328]

I think it depends on the company. Nintendo is infamous for suing people who use their IP. Even when you don't earn momey out of it, Nintendo is known to take down hobby projects.

On the other hand, you have a lot of famous games around here (Avatar Trainer, Harry Potter games, like mine) which are still around.

 

[Adabelitoo]

I think it depends on the company. Nintendo is infamous for suing people who use their IP. Even when you don't earn momey out of it, Nintendo is known to take down hobby projects.

I'm still waiting for the brave soul who dares to make a Smash Brothers porn game.

 

[polywog]

To make a parody, you must first learn the concept of irony.
Copying someone else's work, because it's popular, and you like it, is not parody.
Parody is not something done by FANS of the original, parody ridicules the original.

Fan fiction, where you steal someone else's work and write new chapters expanding the original story is not acceptable, without permission. Whereas parody, ridicules the artist, or their work, and it is unlikely that they would ever give permission, the law permits it.

If you LOVE everything about a franchise, you aren't the right person to parody the work.

You must be registered to see the links

You must be registered to see the links

 

[WIRProductions]

I'll add on a bit to what others have said, but it comes down to more than just parody but also 'fair use'.
Specifically if we're talking fanfictions, which is really what a lot of porn games are, interactive fanfictions, if its non-commercial then you're safe in the US. If the person is getting money, that is where the grey area comes in and the level of response others hae mentioned, like if a guy is making $5 a year would Disney feel the need to sue? Not really.

Patreon is the weird grey area of the grey area. Patreon is basically a donation site. The service is not guaranteed, especially as lots of people on here talk about how certain creators just milk their audience and deliver nothing. So there is probably little case law on the issue of donating for a non-guaranteed service of non-guaranteed quality of non-guaranteed exactitude. 'Is the creator making $50,000 a month for providing that hot, unlicensed JLA porn game, or are people just giving some dude money?' would be one of the questions to be debated.

The more interesting debate I never see here is on use of real life porn videos. I know there is a disdain by some here when a new game pops up with 'stolen' artwork, however the same is never said for the billion games that just 'steal' porn clips/pictures as the visuals. I wonder what the line for a company like Brazzars would be on copyright issues for unlicensed porn games compared to Disney, etc.

 

[polywog]

I'll add on a bit to what others have said, but it comes down to more than just parody but also 'fair use'.
Specifically if we're talking fanfictions, which is really what a lot of porn games are, interactive fanfictions, if its non-commercial then you're safe in the US. If the person is getting money, that is where the grey area comes in and the level of response others hae mentioned, like if a guy is making $5 a year would Disney feel the need to sue? Not really.

Patreon is the weird grey area of the grey area. Patreon is basically a donation site. The service is not guaranteed, especially as lots of people on here talk about how certain creators just milk their audience and deliver nothing. So there is probably little case law on the issue of donating for a non-guaranteed service of non-guaranteed quality of non-guaranteed exactitude. 'Is the creator making $50,000 a month for providing that hot, unlicensed JLA porn game, or are people just giving some dude money?' would be one of the questions to be debated.

The more interesting debate I never see here is on use of real life porn videos. I know there is a disdain by some here when a new game pops up with 'stolen' artwork, however the same is never said for the billion games that just 'steal' porn clips/pictures as the visuals. I wonder what the line for a company like Brazzars would be on copyright issues for unlicensed porn games compared to Disney, etc.

A Public Elementary School offered a summer camp for students. It wasn't free, they charged a fee to babysit. In the flyer for the program (a sales promotion, to get parents to sign up, passed out to students at the end of the school-year) they advertised a list of activities they would have that summer, one of the activities listed was "Disney movies"
Disney sued... the court found that the school was infringing Disney's rights... using their name to elicit sales, and charging admission to unauthorized display of copyrighted works. The 45 students who's parents enrolled them in the summer camp, more than likely would have still enrolled them, with or without the "Disney movies" wording in the ad, but nonetheless Disney was awarded 6 figure Damages. How dare they play Disney VHS tapes in a classroom full of children.

"Fair use" is very limited.

You must be registered to see the links

"Non-commercial" is tricky in this day and age. Even if you are just getting donations, or ad revenue from your webpage, it can be considered commercial.

Using Disney characters pornographically, can land you in jail, in some jurisdictions.

 

[WIRProductions]

A Public Elementary School offered a summer camp for students. It wasn't free, they charged a fee to babysit. In the flyer for the program (a sales promotion, to get parents to sign up, passed out to students at the end of the school-year) they advertised a list of activities they would have that summer, one of the activities listed was "Disney movies"
Disney sued... the court found that the school was infringing Disney's rights... using their name to elicit sales, and charging admission to unauthorized display of copyrighted works. The 45 students who's parents enrolled them in the summer camp, more than likely would have still enrolled them, with or without the "Disney movies" wording in the ad, but nonetheless Disney was awarded 6 figure Damages. How dare they play Disney VHS tapes in a classroom full of children.

"Fair use" is very limited.

You must be registered to see the links

"Non-commercial" is tricky in this day and age. Even if you are just getting donations, or ad revenue from your webpage, it can be considered commercial.

Using Disney characters pornographically, can land you in jail, in some jurisdictions.

Link to the case please.

 

[polywog]

Link to the case please.

You must be registered to see the links

Who does copyright law apply to?
This law applies to all U.S. schools, regardless of:

• Whether admission is charged.
• Whether the institution is commercial or nonprofit.
• Whether a federal, state or local agency is involved.
• What year the movie was produced.

This means public schools, colleges, universities, public libraries, day care facilities, parks, recreation departments, summer camps, churches, private clubs, prisons, lodges, businesses and more all must properly license movies to show them publicly.

 

[khumak]

I think there's a couple of different reasons that it's usually ok to do parodies. The big one is the idea of fair use. If you flat out copy someone else's work without making major changes to it then that's a copyright violation and you're likely to get into trouble for it.

For instance if I were to rip a copy of a Batman movie, slap a Birdman label on it and call it my own and start charging for it I would definitely get sued and lose. If someone made a similar movie with similar characters they could probably still get in trouble for it but it would be a harder slog through the legal system to prove that this work is similar enough to this one that it's a copyright violation.

If you're making references to it, copying a few 1 liners from a movie, making a full parody out of it, or any of a pretty wide range of other things then that falls under fair use and there's not much they can do about it. Just about every work of art that exists in the world has similarities with prior works or takes inspiration from them and runs with it. If that wasn't allowed then you'd pretty much have to get rid of all works of art. They'd all be illegal.

I think the second reason is that the original artist probably doesn't even care. If you're doing something that takes away sales then they do care. If you make a porn parody or an SNL spoof or whatever, what harm does that do to them?

Personally, I think Copyright law is already unreasonably restrictive as it is and should be scaled back. By all means keep enough of it to ensure that an artist can get a reasonable amount of value out of it, but 50+ years that span past the artists death? IMO it should be more like 20 years or so and after that it's automatically reverted to public domain.

 

[polywog]

I think there's a couple of different reasons that it's usually ok to do parodies. The big one is the idea of fair use. If you flat out copy someone else's work without making major changes to it then that's a copyright violation and you're likely to get into trouble for it.

For instance if I were to rip a copy of a Batman movie, slap a Birdman label on it and call it my own and start charging for it I would definitely get sued and lose. If someone made a similar movie with similar characters they could probably still get in trouble for it but it would be a harder slog through the legal system to prove that this work is similar enough to this one that it's a copyright violation.

If you're making references to it, copying a few 1 liners from a movie, making a full parody out of it, or any of a pretty wide range of other things then that falls under fair use and there's not much they can do about it. Just about every work of art that exists in the world has similarities with prior works or takes inspiration from them and runs with it. If that wasn't allowed then you'd pretty much have to get rid of all works of art. They'd all be illegal.

I think the second reason is that the original artist probably doesn't even care. If you're doing something that takes away sales then they do care. If you make a porn parody or an SNL spoof or whatever, what harm does that do to them?

Personally, I think Copyright law is already unreasonably restrictive as it is and should be scaled back. By all means keep enough of it to ensure that an artist can get a reasonable amount of value out of it, but 50+ years that span past the artists death? IMO it should be more like 20 years or so and after that it's automatically reverted to public domain.

You must be registered to see the links

Parody is an art. The reason it's accepted is like i said before "fans hate it" therefore it doesn't affect the sales of the original. Whereas, if you copy someone's characters and write a new story chapter in the life of that character, your story would compete for sales of the original. Parody fans are haters, they hate everything, they just want to watch the world burn. (somewhat kidding)

Satire will get you in the most trouble. Where you use a trademark character to make some political statement, like Minnie mouse going to an abortion clinic... your grandchildren will still be paying for that 40 years down the road.

 

[Zippity]

A Public Elementary School offered a summer camp for students. It wasn't free, they charged a fee to babysit. In the flyer for the program (a sales promotion, to get parents to sign up, passed out to students at the end of the school-year) they advertised a list of activities they would have that summer, one of the activities listed was "Disney movies"
Disney sued... the court found that the school was infringing Disney's rights... using their name to elicit sales, and charging admission to unauthorized display of copyrighted works. The 45 students who's parents enrolled them in the summer camp, more than likely would have still enrolled them, with or without the "Disney movies" wording in the ad, but nonetheless Disney was awarded 6 figure Damages. How dare they play Disney VHS tapes in a classroom full of children.

"Fair use" is very limited.

You must be registered to see the links

"Non-commercial" is tricky in this day and age. Even if you are just getting donations, or ad revenue from your webpage, it can be considered commercial.

Using Disney characters pornographically, can land you in jail, in some jurisdictions.

Disney is one of those entities where laws have actually been enacted or special case statutes have been created just due to their influences on law makers in general... Welcome to the world of Lobbyists...

A prime example, is Mickey, as it should have already fallen into the Public Domain arena as per the laws that have been around for a while now... But Disney actually fought for special circumstances with regards to it, and now Mickey is treated as a company icon that is not subject to the Public Domain laws due to longevity.... Where as old black and white movies like The Mummy or Frankenstein are considered Public Domain due to the age of the films...

Disney is one of those companies that fights way harder then most others, to keep their reputation and property strictly controlled... They are highly protective of their property, regardless how small or insignificant the person/company is that is violating their conception of property...

Now, that all being said, the Fair Use laws in some countries still allow for things like Parody of even Disney's properties... But that also has it's limits... It's not a carte blanche law where you can do as you please, when creating something under Fair Use...

In the end, depending on the property you are mimicking through Parody or what not, and the context of the content, will determine just how much you are playing with fire by doing so... Even more so if you are making any money at all from it... And the more money you make, the higher the degree of getting caught or having the originating owner take notice and even care... Sometimes it is about saving face or ensuring the integrity of the property owners reputation, then stopping someone from profiting off their property...

Depending on how you go about it, will determine your risk...

Zip

 

[khumak]

Disney is one of those entities where laws have actually been enacted or special case statutes have been created just due to their influences on law makers in general... Welcome to the world of Lobbyists...

A prime example, is Mickey, as it should have already fallen into the Public Domain arena as per the laws that have been around for a while now... But Disney actually fought for special circumstances with regards to it, and now Mickey is treated as a company icon that is not subject to the Public Domain laws due to longevity.... Where as old black and white movies like The Mummy or Frankenstein are considered Public Domain due to the age of the films...

Disney is one of those companies that fights way harder then most others, to keep their reputation and property strictly controlled... They are highly protective of their property, regardless how small or insignificant the person/company is that is violating their conception of property...

Now, that all being said, the Fair Use laws in some countries still allow for things like Parody of even Disney's properties... But that also has it's limits... It's not a carte blanche law where you can do as you please, when creating something under Fair Use...

In the end, depending on the property you are mimicking through Parody or what not, and the context of the content, will determine just how much you are playing with fire by doing so... Even more so if you are making any money at all from it... And the more money you make, the higher the degree of getting caught or having the originating owner take notice and even care... Sometimes it is about saving face or ensuring the integrity of the property owners reputation, then stopping someone from profiting off their property...

Depending on how you go about it, will determine your risk...

Zip

Disney is also one of those companies that is willing to drag you through the legal system for the sole purpose of making you spend more money than you can afford to defend yourself, even when they know they're going to ultimately lose the case if it goes to a decision. Their target will frequently cave in despite the law being on their side rather than face bankruptcy before they ever reach an actual verdict. Basically they can use their bankroll to beat their target into submission regardless what the law says.

 

[polywog]

Disney is one of those entities where laws have actually been enacted or special case statutes have been created just due to their influences on law makers in general... Welcome to the world of Lobbyists...

A prime example, is Mickey, as it should have already fallen into the Public Domain arena as per the laws that have been around for a while now... But Disney actually fought for special circumstances with regards to it, and now Mickey is treated as a company icon that is not subject to the Public Domain laws due to longevity.... Where as old black and white movies like The Mummy or Frankenstein are considered Public Domain due to the age of the films...

Disney is one of those companies that fights way harder then most others, to keep their reputation and property strictly controlled... They are highly protective of their property, regardless how small or insignificant the person/company is that is violating their conception of property...

Now, that all being said, the Fair Use laws in some countries still allow for things like Parody of even Disney's properties... But that also has it's limits... It's not a carte blanche law where you can do as you please, when creating something under Fair Use...

In the end, depending on the property you are mimicking through Parody or what not, and the context of the content, will determine just how much you are playing with fire by doing so... Even more so if you are making any money at all from it... And the more money you make, the higher the degree of getting caught or having the originating owner take notice and even care... Sometimes it is about saving face or ensuring the integrity of the property owners reputation, then stopping someone from profiting off their property...

Depending on how you go about it, will determine your risk...

Zip

Walt Disney died Dec 1966. Copyright is 75 years after death. Trademarks are another thing altogether. You pay to renew trademarks, so as long as you pay to enforce them they remain in effect.

 

[Zippity]

Walt Disney died Dec 1966. Copyright is 75 years after death. Trademarks are another thing altogether. You pay to renew trademarks, so as long as you pay to enforce them they remain in effect.

Not talking about their trademark...

You can look it up, how the original Mickey cartoons should have gone into the Public Domain years ago, yet Disney fought to avoid that from happening... They became an example of an exception to the rule...

You must be registered to see the links

You must be registered to see the links

You must be registered to see the links

You must be registered to see the links

Zip