Can anyone explain the clear limits of copyright infringement?

[Marsup]

So I am a bit confused as to what is allowed and isn't when using an existing character from a franchise and implementing him/her in a porn game. For example in orange trainer Ashoka is a straight up copy yet there doesn't seem to be a problem with that. However, for example in trials in tainted space I plan on having a character inspired by Juri han from the street fighter series. Personnaly what I really want to keep is her physical appearance and personality but according to the developers when making a character inspired by an existing one you have to pick one aspect you like and work with it. That means if I keep her personality I got to change her hair color and style, yet the ashoka game kept everything the same about her except maybe changing her personality a bit.
(I understand that this could be a personal preference of Fenoxo and company to reduce the risk of legal problems but still wanted to check with the more knowledgeable members of the community)
What exactly are the "limitations" of using a character from an existing game in a porn game. I searched and some say that as long as the game isn't marketed or sold in some way its fine, while others say different things. Is just giving your character a different name and backstory enough?

What about all those porn images that have a complete copy of the character yet don't seem to be under any kind of copyright fire.

 

[desmosome]

I'm not a lawyer, or even an armchair lawyer, but I think you are ok as long as it doesn't look excactly the same and you change the name. I don't think personality matters at all.

 

[DarthSeduction]

Chances are, Juri's character design itself, the image thereof, is considered copyright of Capcom. I'm not a lawyer, but Fenoxo and company are probably right to worry about using the direct personification, however, a similar looking, but not exact copy, with a similar character attitude is fine. Capcom can't sue LoL for Jynx, etc.

To add, Orange Trainer is not operating within the law. They might skate on Parody, as some porn parodies have actually beaten Star Wars in court, but it's not an easy road, and unless you have the money to deal with the legal storm, it's not worth it to try.

 

[fsap1]

Rule of thumb is: If you intent to make money with it, don't use other people stuff. You can't stop anyone from suing you if they choose to. "Fair use" is simply something you can use in your defense in court.

And there's also trademark infringement to worry about, the appearance of the character most likely falls under trademark.

 

[Marsup]

Chances are, Juri's character design itself, the image thereof, is considered copyright of Capcom. I'm not a lawyer, but Fenoxo and company are probably right to worry about using the direct personification, however, a similar looking, but not exact copy, with a similar character attitude is fine. Capcom can't sue LoL for Jynx, etc.

To add, Orange Trainer is not operating within the law. They might skate on Parody, as some porn parodies have actually beaten Star Wars in court, but it's not an easy road, and unless you have the money to deal with the legal storm, it's not worth it to try.

So if i give her a different hair color and hair style, different name and background would that be enough or would I need to modify her even further?

 

[DarthSeduction]

Are you planning to use her wardrobe from any game or other media?

 

[Marsup]

Are you planning to use her wardrobe from any game or other media?

No I don't plan on using the same clothes she actually wears in any official game. I do plan on basing her outfit on this (

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)
Which is a mod for her but the original outfit comes from the latest dead or alive.

 

[79flavors]

First things first... I'm not legally knowledgeable. My opinion is only that, an opinion. Based on watching youtube videos like the one I've linked below.

I also don't know the character you've mentioned... so I'll talk in generalities.

[...] I searched and some say that as long as the game isn't marketed or sold in some way its fine, while others say different things.

No, it's not fine. Copyrighted works are still copyrighted.
Keep in mind, "Fair Use" is only an affirmative defense - it's not a blanket get out of jail free. It's effectively say "Yeah, I'm guilt... BUT..."

Having a character influenced by someone else's copyrighted/trademarked character is fine - as long as it's only influenced by. But if a reasonable person could watch your game and go "Hey... that's clearly {insert character here}"... you're on shaky ground.

In such circumstances... you're generally hoping that you don't get noticed.

The courts have a number of criteria to make decisions on stuff like this.

Spoiler: Video about the basics of copyright

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The upshot is that if you're not actually in direct competition with the copyright holder (ie. a sale to you is not a lost sale for the original company)... you're slightly safer. If you're doing parody... your slightly safer. But if the company sells video games featuring the character... you're taking a risk.

Is just giving your character a different name and backstory enough?

Probably not, though the eternal "it depends" comes into play here.
Since you're talking about a visual component... you probably need to change some visual elements too. Different color clothing, long skirts instead of short skirts, addition or removal of obvious jewelry, a lip piercing, different makeup... something... anything that could break someone drawing a direct comparison.

What about all those porn images that have a complete copy of the character yet don't seem to be under any kind of copyright fire.

Some copyright holders work on the "any publicity is good publicity". But trademark holders tend to be less forgiving (they can lose their trademark if they're not seen to be defending it).
It can also be a tough sell if any level of parody is involved.
Mainly though, it tends to be that it's really difficult to trace people on the internet. Someone posts a fanfic picture to reddit... good luck finding them.
But you're selling a game. Patreon or someone like them will have your personal details... maybe your banking details. They WILL find you, if they notice you.

 

[anne O'nymous]

To add, Orange Trainer is not operating within the law. They might skate on Parody, as some porn parodies have actually beaten Star Wars in court, but it's not an easy road, and unless you have the money to deal with the legal storm, it's not worth it to try.

The problem with Orange Trainer is that they use an actual character that is copyrighted. For everything else, the game just use the "universe of". Here it depend of how strongly the owner of the right is ready to fight to keep is property private, but mostly the "universe of" is seen as common property as long as you don't refer too much on proper nouns ; so you can use the spirit of the universe, name the iconic places/characters, but going further is risked.

 

[Marsup]

Thanks for the clarification everyone. I think I now know how I cn create this character without legal problems.

 

[HopesGaming]

This market is so new that it is mostly unknown to most big companies.
So won't be any problems using pokemon, anime chars, marvel/dc and so on.

But they have the rights to copyright. Perhaps in the future when the market reaches a state where it really makes a spark the companies will start to hit down. So, in the end, it's better just to create something original. Also the most fun.

 

[MrBree]

In most cases, you probably have reasonable legal protections. Unfortunately, the actual legal rules are irrelevant due to practical concerns.

A simple rule of thumb for copyright infringement issues: can you afford to defend the lawsuit? If the answer is no, then don't even try it.

There are some companies who are rather sue happy in defending their IP. The point of it is not for them to win, but to ensure anyone who even tries is is bankrupted by the legal fees. They win by default due to this.

So the rule of thumb is -- is there any reason for a company to assume their IP has been infringed? Then you might have a lawsuit. Doesn't mean they are correct, or if they would win, just that they might be willing to serve you with a suit.

Keep in mind that 'fair use' as a defense is only a defense in the courtroom... you still have to endure the lawsuit and the costs that it entails.

Now, most companies don't bother attempting to stop parodies .. these are well-known to have strong legal defenses. But you should be willing to drop any supposedly "infringing" elements at a moments notice unless you are willing to endure lawyers hounding you. Keep in mind that quite a few people have a dim view of pornographic parodies. Although it legally makes no difference, in practice it does hurt your case.

 

[Zippity]

Copyright law varies by location, but usually the safest course of action is that if you have a concern that it might fall under copyright, then don't use it without written and signed permission from the copyright holder...

As to Parody... Once again, depending on location, there are laws concerning the use of Parody when it comes to things like characters from a movie/tv/book... Typically, as long as you're not using pictures and/or clips directly from the sources or from copywritten materials, then you are fine when making fun of something with original artwork and so forth... Such would be the case for Orange Trainer... It is a parody that is all about poking fun at Star Wars and some of the characters, just with an Erotic/Adult theme... If they had used any screenshots from copywritten material, such as the movies, or books, or posters, etc. where copyright law protected that resource, then the Studio/Distributor could technically sue for copyright, or at the minimum send a Cease and Desist letter prior to a suit...

Now, as to just doing some slight alterations to a character... Let me give you an example of something that really occurred... the MMORPG called City of Heroes allowed you to make characters that could look very much like super heroes from Marvel Comics and others... Well, Marvel sued NCSoft (the owner/distributor of City of Heroes) because players could make characters look like Wolverine, The Hulk, as well as others... There eventually was an out of court settlement made between the two companies, details of which were never made public, but obviously some sort of agreement was made between the two companies... Because NCSoft was then allowed to continue to allow characters to be made the same as before... Most likely money exchanged hands that then allowed NCSoft to continue on as though nothing had happened...

So it is always possible for a major corporation to sue over something like having characters very similar to their products... So it's a gamble you have to decide for yourself... And again, depending on location, there may be laws that could protect you or open you up to possible litigation... That's typically why it's usual safer to err on the side of safety, and either get permission, or avoid it all together... It gets stickier when money is involved, where you are making money from what your doing... The punishment for copyright infringement usually gets harsher in that case...

In the end, it's all based on what risks your willing or unwilling to take...

Zip

 

[Zippity]

First things first... I'm not legally knowledgeable. My opinion is only that, an opinion. Based on watching youtube videos like the one I've linked below.

I also don't know the character you've mentioned... so I'll talk in generalities.


No, it's not fine. Copyrighted works are still copyrighted.
Keep in mind, "Fair Use" is only an affirmative defense - it's not a blanket get out of jail free. It's effectively say "Yeah, I'm guilt... BUT..."

Having a character influenced by someone else's copyrighted/trademarked character is fine - as long as it's only influenced by. But if a reasonable person could watch your game and go "Hey... that's clearly {insert character here}"... you're on shaky ground.

In such circumstances... you're generally hoping that you don't get noticed.

The courts have a number of criteria to make decisions on stuff like this.

Spoiler: Video about the basics of copyright

You don't have permission to view the spoiler content. Log in or register now.

The upshot is that if you're not actually in direct competition with the copyright holder (ie. a sale to you is not a lost sale for the original company)... you're slightly safer. If you're doing parody... your slightly safer. But if the company sells video games featuring the character... you're taking a risk.


Probably not, though the eternal "it depends" comes into play here.
Since you're talking about a visual component... you probably need to change some visual elements too. Different color clothing, long skirts instead of short skirts, addition or removal of obvious jewelry, a lip piercing, different makeup... something... anything that could break someone drawing a direct comparison.



Some copyright holders work on the "any publicity is good publicity". But trademark holders tend to be less forgiving (they can lose their trademark if they're not seen to be defending it).
It can also be a tough sell if any level of parody is involved.
Mainly though, it tends to be that it's really difficult to trace people on the internet. Someone posts a fanfic picture to reddit... good luck finding them.
But you're selling a game. Patreon or someone like them will have your personal details... maybe your banking details. They WILL find you, if they notice you.

Yup, the moment you use another business to do your business, your business/personal details become more open to tracing during an investigation... Once you have a finger print on the internet, it will not be that difficult to track an electronic paper trail directly to you or others around you... And the more you try to mask your real details, the worse off it will be for you, when they finally catch you... So, unless you are just someone who looks but never touches anything on the internet, the risk is there for getting found...

Zip