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The Legality of Fangames
I've seen a lot of misinformation on the topic of fangames, and it's easy to misinterpret what the laws do and don't say. In this article I'd like to attempt to address whether fangames are or aren't legal, how they can be, when a work is your own, what it's protected under, and to generally inform you about Copyright, Trademark, Fair Use and more.
There are four main topics that we need to go over to grasp what the legality of fangames is, and these are Copyright, Intellectual Property, Trademark, and Fair Use. There are more factors that could be considered both within and surrounding these topics, but these are what I will be addressing in this article.
I am not a lawyer, and the content of this article is not a substitute for legal advice.
Intellectual Property
Intellectual Property, IP for short, is an intangible, non-physical creation that is stored in our human intellect. IP rights are made up of copyrights, trademarks, patents, and more aspects like industrial design rights and geographical indications, and sometimes even trade secrets. The purpose of IP is to give people the exclusive property rights to information and intellectual goods, and to encourage people to create. Just like traditional properties, these are things you own, but intellectually rather than physically.
Trademark
The purpose of trademarks is to mark a slogan, a logo or different type of good as being owned by the creator. If you have a trademark, you have the exclusive rights to use that trademark and nobody is allowed to use it. It is a type of intellectual property that can be infringed, and the infringer is liable for legal action upon doing so.
One of the main corner stones behind trademarks is representing the source or origin of the intellectual good. Upon usage, they identify the trademark user as the person or entity with the exclusive rights to the trademark, and typically everything surrounding the trademark. It is in its most basic form a way to protect the identity of your trademark.
Trademarks should always be registered to ensure it has legal value, but some countries also recognize unregistered trademarks. All trademarks can be identified with the ™ trademark symbol, and ® can be used to identify only registered trademarks.
Trademarks are active once registered, but you may lose the exclusive rights to your trademark if it is not actively used or maintained. This means that, if the trademark owner is aware of infringement of their trademark, they must either take legal action, or determine the infringement to be minor and inconsequential.
Trademark use is not automatically infringement if it is used to describe the original trademark accurately, or if it is used to identify a different person or entity to hold the rights to the trademark. If a party threatens another party of taking legal action on the basis of trademark infringement but the basis is considered unfounded, the second party may take legal action over that threat of legal action itself. This prevents large parties from intimidating small parties.
Copyright
The purpose of copyright is to protect intellectual property. Copyright gives you, the Copyright holder, the exclusive rights to the intellectual good, which means nobody else is allowed to copy the good. Goods like poetry, movies, streaming audio and video, video games, plays, paintings, sheet music, recorded music performances, novels, software code, sculptures, photographs, choreography, and architectural designs are just a few examples of all the different type of Intellectual Good that falls under Copyright. Copyright protects these goods from being copied (which extends to being used or being modified) without explicit permission through a License. This can be a free or paid license, with or without additional clauses, such as required name attribution, or that the source of the good may not be misrepresented or claimed as your own. The specific details are defined by the License, which very on a case-by-case basis. Common Licenses for creative works are the Creative Commons License, which are clear and unambiguous, and have the clauses of the License defined in the name. The figures of speech "copyrighting" or "copyrighted" refers to whether or not the good is protected by Copyright laws.
Can ideas be Copyrighted?
No, ideas are not protected by Copyrights. Copyrights protect only expressions of ideas or facts, but not those ideas and facts themselves. If ideas and concepts were protected under Copyright laws, only one Creator would be allowed to express that idea, which would go against the fundamental Copyright standpoint of inspiring people to create new works. By this same logic, characters and their traits, accessories, clothing or general style concepts are not protected under Copyright laws. Only individual expressions of characters through concept art, digital art or some other medium can be copyrighted.
When is my work Copyrighted?
By default, any good as outlined in the paragraphs above will have Copyrights granted to the original creator in most countries. Goods do not need to be registered in any offices or apply for anything to be protected by Copyrights; these rights apply automatically upon creation of the good. This means that if you create a graphic, that graphic will automatically become part of your Intellectual Property and be protected by Copyrights. As such, nobody else is allowed to use the graphic without explicit permission. This is also why, if you cannot figure out if a work on the internet is or is not free to use, you are legally not allowed to use it as it falls under the Intellectual Property of the artist.
There are a few exceptions where the Original Creator may not be the Copyright holder of the good.
- The good was created while under employment; in this case, the employer will be the Copyright holder;
- The Original Creator has sold the copyrights to a different party or entity;
- The good was created as part of a contract in which the Original Creator has agreed that the contractor will become the Copyright holder of all goods bound to the contract;
- The Creator held the exclusive Copyrights upon death, and has been dead for more than at least 50 years (exact time span varies per country).
What if the work was made by more than one person?
If multiple people have contributed to one good and none of the conditions above apply, those people will be Joint Copyright holders. In a Joint good, all Joint Copyright holders are considered equal, and all Joint Copyright holders have equal rights to copy the good or commercially exploit it.
When is Copyright infringed?
An infringement upon a Copyright holder's Copyrights takes place when the good has been copied without explicit permission prior via a License Agreement. Copying a good may include, but is not limited to, digitally transferring the good from one place to another, downloading the good, and as such also using the good in other work, modifying the good, or redistributing the good.
What is the Copyright symbol?
Before the 1989 Berne Convention Implementation Act, goods were required to use the Copyright notice © to claim Copyrights to the goods. Since the act though, Copyrights are automatically granted to the Creator (or a different party, as explained under When is my work Copyrighted?) and the Copyright notice has become optional. By using the notice, however, a defendant in court may not be able to claim their Copyright infringement as "innocent infringement" such as confusing the good as being in the public domain because they will have had a Copyright notice to claim otherwise.
Fair Use
Fair Use is a set of rules in copyright law that permits limited use of copyright material without having to acquire permission from the copyright holder.
Fair Use is, in essence, a limitation to the extent that copyright laws apply to the good. By enforcing copyright laws without limits, it would hinder the creativity that copyright was intended to promote. Therefore, Fair Use bypasses the copyright laws, provided the good is in fact intended (and eligible for) Fair Use.
What constitutes as Fair Use?
There is no simple, objective answer to whether a good is or isn't Fair Use. The only time this is explicitly defined is in court cases, where the validity of a Fair Use defense will be scrutinized. However, there are four factors commonly included in the USA:
- The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
- The nature of the copyrighted work;
- The amount and substantiality of the portion used in relation to the copyright work as a whole;
- The effect of the use upon the potential market for or value of the copyrighted work.
I will go further in-depth on each of these factors below.
The purpose and character of the use
The purpose and character of use pertains to what the goal of the use is. This includes commercialisation, but also transformation and education. The goal of the use must justify the use of the copyrighted work, and clearly demonstrate that goal.
Transformation
Fair Use may be justified if the use is of transformative nature. That is to say, if use of the copyrighted material supersedes the original work. In essence, transformation of use says something about the difference in use compared to the original work. Of all Fair Use factors, this is very important to consider and often a topic of controversy.
One of various cases in which use of copyrighted work qualifies as transformative includes criticism. Quoting something to criticize it, playing a movie clip with criticism throughout the whole clip, and a parody that mocks the original work or its principles are examples of transformative works that serve a very different purpose than the original work.
Another case is aiding in identification. If a work is lacking identification, be that through a watermark or signature, adding identification is generally considered to be transformative. Furthermore, showing an icon of a work in an image aggregator also aids in identification, and is thus also deemed transformative.
Commercialization
Commercial use of copyrighted material is often presumed to be unfair, and thus disqualifies the work as Fair Use. However, this is a presumption, and the weight commercialization has will vary on a case-by-case basis. Therefore, although commercial use does not automatically disqualify the work as Fair Use, it does make it less likely.
It also work in reverse, though. A work of a non-commercial nature can still be deemed not a Fair Use if the work allows the public to obtain or consume material that they would otherwise need to pay for.
What's more, in extreme cases, widespread attention, recognition and contributions in association with the work may also impact the finding of Fair Use as it may influence the market for or value of the copyrighted work.
Education
Education is similar to transformation as it allows the use of the original work with the purpose of criticism, review, comment or teaching.
The nature of the copyrighted work
Copyright law does not care about quality of a work, but does consider other aspects of the work like whether or not it's fictional. Copyright only applies to expressions and not facts or ideas, so as to prevent private ownership of work that should belong to the public domain. The social usefulness of the copyrighted work also influences whether or not use qualifies as Fair Use for the same reason copyright doesn't apply to facts or ideas - public interest.
Whether or not the work has been previously published is an important factor that is taken into consideration. Works not intended for publication generally do not deserve legal protection. If use of unpublished work is found, that should be protected by privacy laws as opposed to copyright laws. However, a work being unpublished does not inherently bar the possibility of finding the use to be fair.
Amount and substantiality
Amount and substantiality is all about originality. The more of the copyrighted work that has been used, the less likely the case will be deemed as Fair Use. Furthermore, the substantiality of the work used also plays a role in this bigger factor. If the copyrighted work used is the heart or essence of that work, it may bar a finding of Fair Use in that case.
Effect of the use
Another factor in determining if use of a work can be considered to be Fair Use is the impact that use has on the original work. This can mean how big, if any, an impact the use has upon the market of the original work, but also if copyright infringement of the work in general would hurt its market for uses similar to the infringing use. This factor plays a role in Fair Use only when the copyright holder proves that the infringing use has impacted their market, or the general purpose of the work.
One way to reason about this is to determine whether or not the infringing use could be seen as a substitute of the original work. If that is the case, the work may impact the market of the original work, and it may also mean that the work is not plenty transformative.
This factor does not cover use of copyrighted work that is deemed as Fair Use and does not replace or directly influence the original work. Even if the usage is satirical or critcising and it negatively influences the way people consume or use the original and thereby impact its market, this is not seen as breaking Fair Use.
Additional factors
It is often believed that name attribution or listing the original source of a work is sufficient and protects you from Copyright laws, but this is not true. Acknowledgement of the original work can help the original creator in how they feel about your work and thereby not pursue action, but that is as far as it goes. It does not make you exempt from the laws. Similarly, "all rights reserved" and "no copyright infringement intended" have very little meaning when you are still infringing on intellectual property.
So are fangames legal?
There is no universal answer that definitively answers that question for every fangame. Ultimately, I leave it up to you to decide whether or not your fangame is legal. It depends on various factors, like whether you're violating Trademarks, whether you're using copyrighted assets, and whether your fangame impacts the original game's market. With all the information I have provided in this article, I hope you will be able to clearly determine whether your fangame would be deemed legal or not.
If you have any more questions, I will be happy to answer them and/or work them into a small FAQ section.
Sources
- https://wipolex.wipo.int/en/text/288514
- https://fairuse.stanford.edu/overview/faqs/copyright-basics/
- https://fairuse.stanford.edu/overview/faqs/copyright-ownership/
- https://www.ntia.doc.gov/files/ntia/comments/100910448-0448-01/attachments/Digital Media Copyright Protection ver. 14.pdf
- https://books.google.nl/books?id=0OUcXGnexGYC
- http://fordhamlawreview.org/wp-content/uploads/assets/pdfs/Vol_77/Samuelson2_Vol_77_Apr.pdf
- https://www.jstor.org/stable/1341457
- https://www.ipwatchdog.com/2008/11/16/comparative-advertising-mac-vs-pc/
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