Hello,

I've seen this topic crop up at the forums from time to time. I'm also dealing with it on a regular basis myself due to my main project being a sequel to a SNES (Terranigma). However, I've never really had any larger discussion on the topic with other game devs. So...

Should fanfiction games be legal?

Personally, my own game is already on the extreme side - I'm making a direct, storywise sequel to the original game, using some of the characters, the same gameplay-mechanism (with extentions), and due to lack of artistic talent and for nostalgica purposes the original graphics (with edits) and sounds.

I know that it is technically a grey area with a trend towards illegality, currently. I've never heard of anyone being sued for making a private, non-profit fanfic, but I've heard and experienced the practice of Cease & Desists letters, which request you to remove such a project, while threatening legal actions if not followed.

Then there is the argument of fair use. Technically from what I understand, though I'm not a legal expert, fan-fiction most likely would not fall under fair use. Since the ruling of this seems to be fairley subjective/specific, it would be interesting to see the result of such a court case, but I belive no private fanfiction write/programmer is willing to let it go that far. I also don't want this to turn into a mere legal discussion, so nevermind that...

Now I see that there is a general desire to protect one's work, and I agree that not anyone should be able to use your own intellectual property to enrich themselves. However, what I don't really see is why that is a problem with private (= developed by individuals and not a company), non-profit, fan-fiction games, which fully states the original source of its material (= doesn't claim ownership for stuff that they didn't make themselve), which are put online.

By producing such a game, I'm not making any profit off of their work. Also, in my case, I'm making a sequel to a game whose franchise has never been used for the last 19 years (not even in the Wiis retro store). So I'm also not taking any market-share or generating profit-loss due to a free alternative to nintendos/enix charged products of this franchise. I can see this being a problem with currently active franchices like Zelda, Mario... howerver, I also belive that this is not a real issue. First off, most/all the fanfic-games are on the PC anyways, so its not even the same platform/target audience (at least for console only games). Second of all, most fanfics eigther suck, or are at least wastly inferior to their original counterparts (1 person cannot possibly achieve the same quality of a game like the current mario titles in a feasable timeframe). Thus, I belive that fanfiction (in the frame I gave) does not possibly inflict any damage to the original games copyright holder. Or am I missing something?

So what this leaves me personally with is just the attitude of "Its our trademark, we control what we do with it", despise any considerations about if it actually affects them at all. Which again is understandable in its core, but doesn't make much sense to me in the context of like what I am doing. I also understand that legally copyright/trademark holders somewhat have to enforce their copyright for it to keep validity, and that with there being no real legal regulation towards this kind of non-profit fanfic, they can't just be like "yeah, do whatever". Some studios seem not so strict about it, but others bring down fan-made games on a regular basis. Other studios even endorse or promote fanmade games, which I belive is great - though what I'm suggestion is that there should be some sort of legal regulation towards non-profit fan made games, so that there can't just be someone to hack the ROM of the newest Zelda game, replace a few textures, resell it and claim its "fan-fiction" and get through with it. But us people who are just making a fan-game due to general admiration of the games of our childhood - it saddens me personally that I basically always have to live in the fear that one day I will be shut down.

;TL;DR

I'm basically claiming that it should be legal to produce a fan-fiction game given those points:

- Its free of any charge and/or profit for the producer.

- It fully states and qualifies the original authors of the work, which parts of their work has been used and what has been contributed by the author of the new game

- It does not actively offer a free, full alternative to a game that is currently being sold.

- The producer of the fan-fic game formally informs the owner of the original game about what he is producing, giving him the possibility to inspect what he is doing. This is the point I'm currently not applying to, because I know both from personal contacts and research that in case of a direct contact enix response is basically a 0815 C&D-letter. So this point really is only viable for people like me if there is a legal possibility to keep doing what we are doing (or the studio in question is known for having a positive attitute towards fan-ficton work).

So - do you agree on my stance toward fan-fiction games, or do you think copyright-owners should have the total control over the work anyways? If so, why/why not? I know I'm probably strongly positivly biased towards the idea of legal fan-fiction due to what I'm doing, so I'd really like to hear other devs ideas towards this - like, what would you say/do if someone made a fan-fiction game based on one of your games (in the context I've given)?

Personally, my own game is already on the extreme side - I'm making a direct, storywise sequel to the original game, using some of the characters, the same gameplay-mechanism (with extentions), and due to lack of artistic talent and for nostalgica purposes the original graphics (with edits) and sounds.

I know that it is technically a grey area with a trend towards illegality

Well, no, not quite. Some of this (gameplay) is a grey area, depending on how "telltale" or "corporate identity" it is, or depending on whether the original implementor may even have it patented (think "Crazy Taxi").

Everything else is not at all a grey area or a trend towards illegality, but very definitively breaking the law (knowingly and willfully, according to your description, which results in higher penalties in most countries) and putting you at risk of being pulled to a civil court and being sentenced to pay damages. You really, really shouldn't do that unless you are a homeless who has absolutely nothing to lose.

I'm not making any profit off of their work

Irrelevant, even if that is the case. You can still "damage" them without making profit yourself. For real, or alleged (which, when it comes to it, is the same to you, either way you're going to pay).

Now, for the broader question "Should fanfic games be legal" (not should yours, which reuses assets from the original, be legal), I am a tiny bit in favour of fan fiction, but overall I guess that the original author's rights are (and should be considered) the supreme value.

Yes, fan fiction can be helpful and important and can indeed be big profit for the original authors without really doing much or anything. If the original authors think that it could be beneficial, they might officially allow your fanfic, though. Why wouldn't they, you basically work for them for free.

But fan fiction can also interfere with plans that they may have (which you cannot possibly know) and it can directly cause damage (in unforeseeable ways). The authors might, and are likely to, simply not want that. In the most extreme case, a notable part of the community could consider your fanfic as sufficiently canon, and compel the original authors to do something they didn't want when they decide to write a sequel (or a movie picture, or sell t-shirts, or whatever), possibly 10 or 15 years later.

All in all, the question is a bit like "Shouldn't I be allowed to use your car, or anyone's car that I find on the street? I will refuel it after use, too".

It's your car, and without having your explicit permission, I really shouldn't be using it, even if I don't have any obvious bad motives and even if I intend to refuel it. It doesn't matter whether I only use your car while you're asleep or at work, either.

if it's completely free, write who is the original author and clearly state that is not a cannon story..why should i care about it? if it was me I would allow a non canonical sequel for one of my games, I would be flattered in fact!

I don't know if it's legal or illegal, I think it isn't... but the companies should be more open-minded with these things

I believe you'd still be infringing on the brand. There's more to a brand than profits. It's the image it shows to people (with or without disclaimers).

Case in point, the "Alpha footage" sentence has never ever prevented critics to say a game looked bad (though arguably, alpha is not art-complete, it's not even content complete, it's just feature complete).

So showing your game, which, given you don't have the same resources (financially, and human-resources-wise) might end up with a sub-standard quality to what they were hoping to achieve, or touch a message they didn't want to convey. This hurts the brand, whether you profit from it or not.

I think the only legal use of fanfic material should be in your basement, and remain there.

Why don't you turn it into an IP instead?

There is a wide range between what is acceptable and what is not. It varies from person to person, from place to place.

The difficulty is that it is hard to pin down a bright-line rule, so in most places the rule is placed very strict and it is the burden of litigation that causes people to wait until infractions are severe before taking legal action.

It is often easy enough to show that the original content creator owns the worlds they imagine and publish. Copyright law protects the rights of authors to create derivative works, and in the case of fan fiction, it only takes a small number of unique items for something to be considered derivative. If you start talking about "Coruscant", "The Force", and "Light Sabers", you're derivative from Star Wars no questions asked. If you start writing about Legolas and Gimli, you're derivative of LOTR. If you start writing about Harry, Ron, and Hermione, you're derivative of Harry Potter. If you've got a starships visiting the pleasure planet Risa, have some aliens like Vulcans and Klingons and Borg, you're derivative of Star Trek.

There are also potentially trademark concerns as well. Licenses usually require strict review by the trademark owner to ensure the products, including books and movies, meet the requirements of the brand. When there are some who pay to license the brand names and logos and follow the rules, it can harm them when fans use the names and devices and don't follow the rules. Poor quality work can harm the brands and dilute the value of the brands.

The bigger questions for the owners of the content, whether they are single individuals or giant corporations, is what to do about those unauthorized works.

The law in most places preserves the rights for ALL derivative works. The content owners could sue ANYONE for ANY fan fiction. Similarly the misuse of their trademarks allows for lawsuits against any potential infringement.

However, lawsuits are expensive and time consuming. It costs time and money to defend the rights of the original content creator. Consequently most don't take action unless the fan fiction crosses boundaries that the content creator feels are importnat.

Some brands historically have chosen to send legal nastygrams to all fan fiction, no matter how small. This is usually the case when the brand is still growing and creating new stuff.

Babylon 5 was very strict when the series was running, going after anyone who published material on the Internet, but they softened up when the series was finished. When Star Trek had multiple products running concurrently in the early 1990s they were extremely strict against unlicensed fan fiction, stating a major reason is they didn't want fan-created content to redirect the stories and plots that were being developed. Even so, they tacitly permitted a few fan fiction products, and once the main products were finished with production they became more supportive of limited fan fictions since they encouraged the longevity of the products.

Others have chosen to allow limited fan fiction, but only as long as it doesn't harm the brand, and as long as it doesn't compete against planned products.

Star Wars fits that one, Lucasfilm pursued legal action against anyone they found using the characters in pornography and against anyone the felt were using the characters in ways they felt were offensive. Fans were asked to stay away from certain time years because they would be covered by additional movies. As long as fan fiction was kept as small products, unoffensive, and outside the proscribed dates, they approved of fan-created magazines and publications. Bigger names were invited to create official books for the series, and some of the fan stories were adopted as official canon for the series.

Right now i think the line is in a pretty good place. The bright-line rule is for any derivative work. Enforcement of the rule is under the control of the original content creator, they can decide how much or how little of their content the fans use before enforcing their rights.

Thanks for all the responses so far, I appreciate seeing different points of views. I'm obviously not going to respond to everything, just some things that stood out for me:

So, your question is "should we try to change the intellectual property laws"? Is that what you mean to discuss here?

Yes, though I would not formulate it that proactive. I don't really expect anyone to change that law, nor would I try myself. I wanted to hear arguments pro/contra towards the loosening of copyright-laws towards fan-fiction, kind of like fair use already does for different aspects.

There is a wide range between what is acceptable and what is not. It varies from person to person, from place to place.

The difficulty is that it is hard to pin down a bright-line rule, so in most places the rule is placed very strict and it is the burden of litigation that causes people to wait until infractions are severe before taking legal action.

I guess you are right, it is extremely hard to find a common denominator, which probably means there is really not much to change. I see why it might be wanted for companies to not allow fan-fiction, I quess I'm just bummed out that some companies are just like "You no take IP!" without even considering whether it hurts them or not (if you contact them, that is - I can get behind the though that most companies have a good reason if they go out and actively C&D fanfiction work, due to your explanation).

Depending on the owner of the IP, have you considered contacting them about using their IP in a non-profit way? Since there sounds to be little interest from the original developers, they may or may not be fine with you doing this.

Yes, I thought about it, though as I mentioned the company in question is Square-Enix, which has a strict policy of eigther C&Ding fan-fiction, or in case of a contact will just send a auto-response of one of their lawyers saying that square-enix games can never ever be under any circumstance target of fanfiction. Actually, I'm not even sure whom the IP even belongs to - said game was originall developed by Quintet (which doesn't exist anymore), pushlibed by Enix (which is now Square-Enix), and licenced by nintendo. I think I'll go as long as I can without C&D, if I ever get one I'll sadly have to take it all down.

All in all, the question is a bit like "Shouldn't I be allowed to use your car, or anyone's car that I find on the street? I will refuel it after use, too".



It's your car, and without having your explicit permission, I really shouldn't be using it, even if I don't have any obvious bad motives and even if I intend to refuel it. It doesn't matter whether I only use your car while you're asleep or at work, either.

The thing I don't like about this kind of real-world analogies is that they don't really match. The reason I am not allowed to use your car in this example is that its a physical, unique objects, and by using it I physically take it away. This means that in the time I'm using it, you cannot use it yourself. There is a difference in IP, being that thoughts, ideas, stories, games etc... can coexist, so your example would rather be "Shouldn't I be allowed to clone your car, or anyone's car that I find on the street?". (Note: this is not an objection to the rest of your argumentation, just towards this example).

Everything else is not at all a grey area or a trend towards illegality, but very definitively breaking the law (knowingly and willfully, according to your description, which results in higher penalties in most countries) and putting you at risk of being pulled to a civil court and being sentenced to pay damages. You really, really shouldn't do that unless you are a homeless who has absolutely nothing to lose.

Well, I kind of included this into my definition of "fan fiction". In case of video game fan-fiction, some of the mentioned objects are likely to be used. Think about it - even if you were not to use the original assets, in order to make a "fan fiction", you will most likely be using familiar symbols, stories, characters... think about a mario fanfic, even with complely new graphics, in order to even be considered a mario fan-fic you will have a mario, mushrooms, stars, etc... (unless you go the plagiarist route âla Giana Sisters, and that didn't go well eigther). From what I understand in copy-right laws, even extremely familiar graphics can qualify as copyright violation (so if you have said items/characters, even if you made them yourself, this would be no different a violation then if you just ripped them out of the emulator like I did). So in order to have a fan-fiction game that doesn't violate those laws, it would probably already have to be so distinct from the IP you were targeting, that if you change a few character names you might have a complete independant game anyway. Thats why I included those parts in my question, too.

Also, I appreciate the legal concern - I've though informed myself enough to safely be able to assume that the worst thing to happen to me is a C&D-letter, which is the common practice in such cases.

Case in point, the "Alpha footage" sentence has never ever prevented critics to say a game looked bad (though arguably, alpha is not art-complete, it's not even content complete, it's just feature complete).



So showing your game, which, given you don't have the same resources (financially, and human-resources-wise) might end up with a sub-standard quality to what they were hoping to achieve, or touch a message they didn't want to convey. This hurts the brand, whether you profit from it or not.

Well, you are already naming it - negative reviews can already damage the reputation of an IP, but those are excluded from copyright violation via fair use. Yet even I have to say that fan-fiction should not be able to exist inspite if it hurts the brand it is "copying". Even though my first results back in 2008 were really bad, I always try to do my best to represent the original game, by studying it, taking massive iterations to improve the quality, and staying as true to the original idea as I can. But since there can be people who just produce utter **** as fan-fiction, I quess thats another point why there cannot be a good regulation for this. I just wished there was some way for so called "harmless" fan-fiction to get an endorsement, and not be depending on the companies e-mail reviewer even handing any contact to responsible people instead of straigth to the "rejection-lawyers" :/ Will stay a wish though.