Whats the legality of fangames?

[tuuri]

Every now and then I see games that don't just parody some franchise but outright use its character and names.
What are the legal ramifications for this? Is it fine as long as you release it for free and keep it to optional donations?
They generally go all in with monetization on Itchio/Ko-Fi/Patreon and they don't seem to get removed.
What is the worst that could happen, a cease and desist so you remove it and move on?

Examples
https://f95zone.to/threads/demon-charmer-v0-05-darknerious.194447/
https://f95zone.to/threads/hololewd-manager-v3-1-christmas-special-akkasenpai.127573/

 

[GNVE]

The worst that COULD happen is you getting sued and having to hire an expensive lawyer to defend yourself and being out 10K - 25K. They are not required to send a cease and desist first. Generally speaking this is very unlikely (though if you use the likenesses of real people via AI art is can become more likely as they can sue on a personal basis). Again very unlikely but still you asked for worst case scenario.
But yeah in most cases you'd get a cease and desist and if you do nothing else will happen. (suing is quite expensive and chances are you aren't rich enough to recoup the cost so they aren't incentivised to sue). Even this is unlikely though. Can't say I heard it happening.
Third option is they'll send a settlement offer (or whatever the legalized term is). Basically it's a if you don't want us to continue to sue you pay x amount of money and this will all go away otherwise we'll drag your name through the mud and make you pay an expensive lawyer. You know blackmail but in a way that is legal. This is very very unlikely but it happened to 1000's of people who torrented porn.
Most likely is that you'll never hear anything about it. Though I'd would say to do a bit of research on the IP though. Some companies are more likely to send a C&D or sue then others.

Please note that there is a difference between being sued and being sued successfully. You can claim (under US law at least) that it is a parody. This is protected speech and it is well established that porn parodies are a thing (in the 90's/00's there where a whole slew of them). Trouble is that you'd still need the money to defend the claim. Some companies just send the C&D knowing most people don't have 25K laying around.

 

[tuuri]

The worst that COULD happen is you getting sued and having to hire an expensive lawyer to defend yourself and being out 10K - 25K. They are not required to send a cease and desist first. Generally speaking this is very unlikely (though if you use the likenesses of real people via AI art is can become more likely as they can sue on a personal basis). Again very unlikely but still you asked for worst case scenario.
But yeah in most cases you'd get a cease and desist and if you do nothing else will happen. (suing is quite expensive and chances are you aren't rich enough to recoup the cost so they aren't incentivised to sue). Even this is unlikely though. Can't say I heard it happening.
Third option is they'll send a settlement offer (or whatever the legalized term is). Basically it's a if you don't want us to continue to sue you pay x amount of money and this will all go away otherwise we'll drag your name through the mud and make you pay an expensive lawyer. You know blackmail but in a way that is legal. This is very very unlikely but it happened to 1000's of people who torrented porn.
Most likely is that you'll never hear anything about it. Though I'd would say to do a bit of research on the IP though. Some companies are more likely to send a C&D or sue then others.

Please note that there is a difference between being sued and being sued successfully. You can claim (under US law at least) that it is a parody. This is protected speech and it is well established that porn parodies are a thing (in the 90's/00's there where a whole slew of them). Trouble is that you'd still need the money to defend the claim. Some companies just send the C&D knowing most people don't have 25K laying around.

So its just another gray zone with no real precedent?
Many of these "parodies" make no effort to hide it at all but they have been up for months I think its pretty unlikely that nobody ever reported these projects in that time.
One of the examples even posted about how if people dont pay him more he wont continue the project lol.

 

[Evil Philosopher]

Every now and then I see games that don't just parody some franchise but outright use its character and names.
What are the legal ramifications for this? Is it fine as long as you release it for free and keep it to optional donations?
They generally go all in with monetization on Itchio/Ko-Fi/Patreon and they don't seem to get removed.
What is the worst that could happen, a cease and desist so you remove it and move on?

Examples
https://f95zone.to/threads/demon-charmer-v0-05-darknerious.194447/
https://f95zone.to/threads/hololewd-manager-v3-1-christmas-special-akkasenpai.127573/

Using licensed assets of companies in order to modify them or use in your own project is commonly illegal, unless their policy approves modifications and usage of assets on certain terms.
For example, Bethesda approves modifications without commercial purpose (it's illegal to gain cash by making mods for Bethesda's games).
For the same reason many YouTube videos are blocked. Intellectual property infringement.

 

[Insomnimaniac Games]

For example, Bethesda approves modifications without commercial purpose (it's illegal to gain cash by making mods for Bethesda's games).

Someone should tell this to Bethesda themselves. They keep trying to monetize mods.

 

[Evil Philosopher]

Someone should tell this to Bethesda themselves. They keep trying to monetize mods.

Amusing. They can do whatever they want with their own game and modifications made by users. Every modification made by users belongs to Bethesda.
Creator of the RimWorld is doing the same.

 

[Insomnimaniac Games]

Amusing. They can do whatever they want with their own game and modifications made by users. Every modification made by users belongs to Bethesda.
Creator of the RimWorld is doing the same.

Just a joke, my man.

 

[Evil Philosopher]

Just a joke, my man.

I'm trying to laugh, but my Laugh Box died.

 

[verified dick]

Using licensed assets of companies in order to modify them or use in your own project is commonly illegal, unless their policy approves modifications and usage of assets on certain terms.
For example, Bethesda approves modifications without commercial purpose (it's illegal to gain cash by making mods for Bethesda's games).
For the same reason many YouTube videos are blocked. Intellectual property infringement.

This is utter nonsense. Intellectual property is almost always a civil matter.

 

[Evil Philosopher]

This is utter nonsense. Intellectual property is almost always a civil matter.

Can you be more specific about your problem? Because I don't understand you now.

 

[peterppp]

Can you be more specific about your problem? Because I don't understand you now.

he thinks "illegal" means it must be regulated by criminal law instead of civil law in the US, but illegal can be used for civil law too

also, criminal/civil law distinction is a US thing but copyright isn't a thing just in the US

 

[MarshmallowCasserole]

What is the worst that could happen

You must be registered to see the links

(As a side note an adjacent article mentions, with source, vaporeon copypasta. Wikipedia is truly a venerable well of knowledge and wisdom.)

 

[Segnbora]

There is actual precedent in this space: an adult game that used Pokemon characters drew Nintendo's attention. They told the dev in no uncertain terms to stop, and he did.

 

[verified dick]

he thinks "illegal" means it must be regulated by criminal law instead of civil law in the US, but illegal can be used for civil law too

If you are a lawyer using jargon, it’s fine to describe Terms of Service violations as “illegal.” Otherwise you are creating misunderstandings.

also, criminal/civil law distinction is a US thing but copyright isn't a thing just in the US

US law was mentioned in a post OP hearted and responded to in a way that suggested was relevant to their situation.

 

[Emperor4919]

The only case of an adult game stopping development because they received a cease and desist notice (that I know of), was by a developer who made a Pokemon game. Nintendo is known for going after parody games who use any of their IP's, even games that don't make any money. I haven't heard of any other instance where a developer had to quit development of their game because of this.

There are many parody games out there, and some of them make great money on Patreon. It seems unlikely that big companies will invest much time and effort to go after game developers.

 

[KaeruVN]

The only case of an adult game stopping development because they received a cease and desist notice (that I know of), was by a developer who made a Pokemon game. Nintendo is known for going after parody games who use any of their IP's, even games that don't make any money. I haven't heard of any other instance where a developer had to quit development of their game because of this.

There are many parody games out there, and some of them make great money on Patreon. It seems unlikely that big companies will invest much time and effort to go after game developers.

Another case was the dev of Peach's Untold Tale receiving a DMCA and having his game taken off GitHub.
Think you only really need to worry about parodies of either Disney or Nintendo, because they will do anything to stop you from using their IPs.

 

[Emperor4919]

Peach's Untold Tale sounds like another Nintendo parody game, which would strengthen my earlier statement. Where Nintendo is notorious for shutting down many games, I haven't heard the same about Disney. It's still highly unlikely that big companies will come after adult game developers en masse, but due to their limitless resources you won't stand a chance in court. But as I said - the chance that such a thing will happen is very small.

 

[KaeruVN]

Peach's Untold Tale sounds like another Nintendo parody game, which would strengthen my earlier statement. Where Nintendo is notorious for shutting down many games, I haven't heard the same about Disney. It's still highly unlikely that big companies will come after adult game developers en masse, but due to their limitless resources you won't stand a chance in court. But as I said - the chance that such a thing will happen is very small.

Indeed. It was a Nintendo Parody game. It is an older game, back from the "Enable Flash Player" browser days.
I mostly see parodies of Japanese IPs anyway, so I think you're right that the chance is very small of any of them coming after you.

 

[HarveyD]

For future reference, whenever you ask the question "What is the legality of X" and you want an actual, usable answer, random folks on internet forums are not the go to.

 

[godlovesyou]

The only case of an adult game stopping development because they received a cease and desist notice (that I know of), was by a developer who made a Pokemon game. Nintendo is known for going after parody games who use any of their IP's, even games that don't make any money. I haven't heard of any other instance where a developer had to quit development of their game because of this.

There are many parody games out there, and some of them make great money on Patreon. It seems unlikely that big companies will invest much time and effort to go after game developers.

Nintendo took down a bunch of princess peach games. Fuck Nintendo.