Your Fan Game May Result In A Game Over For Your Bank Account
Video games are a popular form of entertainment, with over 155 million people in the U.S. playing them for 3 or more hours per week. In recent years, savvy computer programmers have taken their love of games to the next level and made their own involving characters, artwork, and even story lines of popular franchises, giving rise to a new sub-industry called "fan games". The problem is that creating a fan game can land you on the wrong side of a courtroom. Here's what you need to know about this issue and how you can avoid getting slapped with a Cease and Desist letter.
Companies are Required to Protect Their Copyright
Copyright is possibly one of the least understood laws in America. When a person or company creates something—be that a picture, music, or a video game—he or she is afforded certain rights to it, including the right to commercialize the product as the person sees fit. Other people must ask for permission to use the creator's work; otherwise, the creator can sue and obtain compensation for unauthorized use of his or her product.
The trouble is that creators must be aggressive about protecting their copyrighted materials. If they don't, they can lose the ability to sue for damages and other rights associated with holding the copyright to a piece of work. This means that the copyright holder must go after anyone who uses their work without permission, regardless of the second creator's intentions.
Even if you're not making any money off your fan game and giving it to others to play for free, the copyright holder of the work you copied can force you to take the game off the "market" and sue you for any damages he or she sustains as the result of your use of his or her creative works.
Avoiding the Courtroom
Whether or not a company actually goes through the trouble of suing the creator of a fan game depends on the circumstance. You're more likely to get a letter from a game company if you try to make money off your game, or if your game becomes as or more well-known than the original. However, if you make something for personal use that only you and a few friends are likely to see, the company may feel that it's not worth their time and money to pursue a lawsuit against you.
It's still possible to make a fan game without the threat of being sued. The legal way to do this is to ask permission from the creator to use his or her copyrighted creative work. If the creator says it is okay, then you are free to create the fan game you've always wanted. Just be sure to get the permission in writing just in case issues arise at a later date.
Another thing you can do is make a game based on the idea rather than copying the actual work itself. Copyright law only protects the outward expression of an idea (e.g. artwork, names, sound recordings, scripts, etc), not the idea itself. Therefore, you can make a fan game based on the idea of an ex-soldier taking down a corrupt corporation (Final Fantasy VII), but you can't use any of the characters or other materials found in the original without permission.
For more information about making a legal fan game or help responding to a lawsuit associated with one, contact an IP attorney.