Navigating Legal Gray Areas In Fan Games And Spiritual Sequels
Skirting IP Infringement
Defining fan games vs. spiritual sequels
Fan games are video games made by fans of an existing video game franchise, using trademarked intellectual property from that franchise. They feature elements from established creative works such as characters, settings, and gameplay mechanics without the IP owner’s permission. Spiritual sequels also borrow core ideas from existing franchises, but alter trademarked assets to avoid legal issues.
Identifying protected IP elements
Elements protected by intellectual property (IP) law include character names and likenesses, settings that are iconic to a franchise, as well as unique gameplay mechanics covered by patents. Code, art assets, music and story elements may also be protected under copyright.
Strategies for avoiding legal trouble
Changing story, characters, settings
By creating original characters, settings, and story elements, developers can explore similar themes and genres to established franchises without infringing. Names and backstories should be sufficiently distinct from protected franchises.
Altering gameplay mechanics
Protected mechanics like power-ups and character abilities can be iterated upon or modified to add new gameplay dynamics without replicating patented systems. This preserves the general style of gameplay without copying specific inventions.
Using original assets
With sufficient artistic effort, games can mimic visual styles of existing IP without reusing copyrighted artwork, models or music. Developing these assets from scratch also avoids legal issues for protected creative works.
Seeking alternative monetization
By distributing games for free and avoiding in-game transactions or advertising, fan developers reduce commercial harm to IP owners. Seeking written permissions and collaborating directly with copyright holders also mitigates legal risks.
Copyright vs Trademark vs Patents
Copyright protects creative works
Source code, executable programs, sprites, 3D models, texture art and concept art are eligible for copyright protections against unauthorized reproduction and distribution. Stories, characters and settings may also be protected, even without registered copyrights.
Trademarks cover branding elements
Names of games, characters, iconic catchphrases, logos, soundtrack elements and recognizable visual iconography are covered under trademark law. Sufficiently distinct assets that avoid consumer confusion ease legal concerns over trademarks.
Patents cover inventions and methods
Game mechanics, gameplay systems, interactive features, rendering techniques and even abstract software algorithms can potentially be patented. Re-implementation from scratch can avoid issues, but overly broad patents may still pose threats.
When Fan Projects Go Too Far
Commercialization raises legal risks
Any attempt to generate revenue from fan games built on protected IP is likely to provoke the ire of copyright and trademark holders. Sales, in-game transactions, advertising and merchandising generally require explicit permissions.
Using too many protected elements
Sheer scale of appropriated assets play a role, even for free projects. Extensive use of settings, characters and critical gameplay elements reduces ability to claim sufficiently “transformative” new works.
Allowing implication of official endorsement
Intellectual property holders are incentivized to protect their brands. Fan project names and marketing materials should avoid misconstruing endorsement or affiliation with IP owners.
Best Practices for Fan Developers
Make transformative new work
Courts evaluate whether follow-on works have sufficiently distinctive vision and creativity beyond wholesale copying. Design choices adding new characters, settings and gameplay dynamics improve defenses.
Don’t directly mimic protected IP
Wholesale conversions or sequels using protected characters and settings with minimal creative changes offer no legal cover. Iterating in new directions eases IP concerns.
Seek written permissions if unsure
Directly contacting intellectual property holders for formal permission resolves any doubts, especially for commercial fan games. Most will refuse, but some may grant licenses.
Alter monetization to avoid infringement
Good-faith efforts to avoid commercial harm to IP owners earns leeway from courts and companies. Non-profit distribution and omitting transactions demonstrates respect for original creators.
Case Studies
Pokemon Uranium (shut down by Nintendo)
This fan game was distributed for free but used Pokemon IP extensively with over 150 fakemon creatures. Market confusion concerns and trademark dilution forced their hand.
AM2R (Metroid 2 remake also shut down)
Despite no commercialization, this remake stole Metroid series thunder by preempting an official remake. Copyright claims by Nintendo ultimately prevailed.
Black Mesa (tolerated Half Life remake)
With no attempts to generate revenue, this ambitious fan remake avoided legal threats by altering names, logos and branding to prevent endorsement misconceptions.
