Intellectual property and copyright vs Parody

[serowak]

Hey everyone,

I posted this also in /r/lewdgames.
I'm a gamedev who recently been looking into the adult market, and one thing that I tried to research and wasn't able to find a clear answer is:

- How are some super popular Patreon games getting away with using copyrighted material? ( the story/characters, not the art )

The characters are re-drawn and everything, but these are still IP properties.
And these projects are huge enough and have been around long enough for it to be impossible that Patreon "didn't notice". Mity for example, with the Avatar VN ( 25.000$/month)

Is this falling under the Parody/ Fair use aspect?
Are the Patreon devs getting away with it because they aren't technically selling individual copies and more like making the game available for everyone, but relying on the donations for support?

I'm not judging or against any of this. I have both Ideas for original and parodies, I'm just curious

Thanks for any insight.
Cheers

 

[おい！]

The simple answer is, ask the developer of the game or ask Patreon and then you should receive your answer.

 

[fitgirlbestgirl]

I think it's a rather complicated topic with a bunch of different factors. But why Patreon "doesn't notice" is pretty easy to explain. It makes them a bunch of money and they can always just shut it down if the rightsholder comes knocking on their door.

Parody / Fair Use is another aspect, especially with the nature of Patreon itself as a subscription service / virtual tip jar for an individual. Akabur for example releases all of his games for free and explicitly states that his Patreon is only for "supporting his work" in general. I don't know if that makes any legal difference but it definitely makes things more complicated than if you try to sell your Star Wars porn game on Steam.

Another thing is that while some of these games or creators make thousands of dollars, it's still a super niche product and the companies might not think it's worth the trouble or headache to crack down on it if they are even aware of it.

It's kind of like private servers for WoW, they existed for years and Blizzard kind of left it alone, until one of them got really big and popular, then they cracked down on it. I imagine if one of these parody games drew any media attention for some reason you might see a reaction.

 

[Amethyst Star]

I wouldn't be surprised if all the surviving "parody" games are just flying under the radar of the rights holders. For example, it's obvious that Four Elements Trainer spends most of its time not making fun of the source IP. If you rewrote the game with new characters and lore but the same mechanics, nobody would play it. It's a textbook case of what IP law is designed to prevent.

Fair Use is a defense to litigation. It's what you say when someone sues you and you're out of options. When professionals like Weird Al parody something, they usually ask for permission first so they're legally in the clear and they don't have to litigate over it. If one of these games got slapped with a lawsuit over this stuff, they'd run out of money long before the judge can even think about laughing at their paper-thin "fair use" defense.

The other argument is that maybe the rights holders don't want to C&D a small game because they don't want to draw attention to it due to the Streisand Effect. They strike it down when the game gets media attention and forces their hand.

 

[fidless]

Short answer. If a company wants, they can sue you. It's not fair to use. Just adding porn into a game doesn't make it fair use work. It just companies don't care, but some like Nintendo will sue you for anything as they're very aggressive how their characters are used. They sue even fanmade games which don't make any profits as it damages their image.