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Analysis: Clone Games & Fan Games --  Legal Issues
Analysis: Clone Games & Fan Games -- Legal Issues
December 3, 2009 | By Mona Ibrahim

December 3, 2009 | By Mona Ibrahim
More: Console/PC, Indie

[What are common misconceptions around the legality of 'clone' and fan games? Attorney Mona Ibrahim looks at the issue for Gamasutra, from making tribute games through layers of copyright protection for games.]

There are a few misconceptions in the indie development community concerning the definition and legality of clone games. Some take it as given that a legal clone can be a fan game, including many of the same visual and sound elements as the original.

Others believe that because some game companies don't enforce their IP rights against fan game developers, all fan games must be legal. Some may even believe that a game is simple and general enough to not warrant IP protection. This entry is designed to dispel some of the confusion and inaccuracy surrounding clone games and fan games.

Let’s say you’re a huge fan of Zelda, you’re a programmer and competent indie developer, and you and your friends want to create a tribute game to the world of the Hylian race, Princess Zelda, Ganon, and, of course, Link.

In your game you will likely create something akin to fan fiction as far as your storyline and script, and you want to implement the same characters in some way because you are, like most of us, somewhat attached to those icons.

Obviously you want to use similar game rules and mechanics. Can you? Should you? What legal complications will arise, what risks are involved, and how can you avoid threats from the very entity to intend to honor?

Defining A “Clone”

According to Wikipedia, a video game “clone” is a game that is “very similar” to or “heavily inspired” by another game. This is woefully vague from a legal perspective. A “legal” clone is one that does little more than implement unpatented game mechanics, rules, operations, and physics.

Some “ideas” for games may also fall into the legal clone category for the simple reason that they are so common or vague that they no longer warrant copyright protection as unique expressions—for instance, a platformer or RPG with a male protagonist seeking a kidnapped princess is so common to the genre as to constitute scenes a faire under Copyright law.

On the other hand an illegal clone relies heavily on the creative content of a game—namely the trademarks and trade dress of a game product, as well as the unique audiovisual and scripted elements of that game. Note that game clones containing patented mechanics may also run afoul of intellectual property law.

Layers of Protection

Games aren’t all about code. Just because you wrote your clone or fan game from scratch does not guarantee that it is legal. The intellectual property contained in a video game is truly vast. For instance the copyrights alone may include (but are by no means limited to):

Audiovisual display
Sound recordings
Voice recordings
Background drawings
Sprite drawings
Musical compositions
Source Code
Object Code

Furthermore, you have trademark, trade dress and unfair competition claims in the original work to worry about, including:

Game name
Company name
Character names
Character appearance and clothing
The game’s look and feel
Game packaging

And last but not least, you may even have some random claims out of left field by game actors/SAG members, including:

Name and likeness
Privacy rights

If you use any of this in your “clone” game, you may draw unwanted attention and create a legal risk for yourself. The Tetris Company has relied on several of the above-mentioned rights, including "look and feel" under both trademark and copyright law, to enforce IP rights against games that closely resemble its product.

Furthermore, the risk of legal action isn't limited to clones of video game products. Creating a video game clone of board games, card games, and the like could create just as many problems. One famous example is the suit brought by Hasbro against the developers of Scrabulous, a well-known Facebook application.

As far as programming and code goes, commonplace commands are exceptions to the general rule of copyright protection. This is notable only because the most frequent argument I’ll hear concerning a person’s clone or fan game is that the “code is different” or that they “created the game from scratch”.

Unfortunately, the law doesn’t really care, and is not on your side here if you relied on or used any of the other elements noted above. Even if you create the images, sound recordings, etc. from scratch, if those same components are clearly derived or ripped off from the original game, all your hard work may mean absolutely nothing from a legal perspective.

Protecting your Clone/Fan Game

You have a few choices here:

1. Make a “legal” clone. Rely on unprotected game elements, mechanics and processes that are so common and prolific in the game industry as to no longer warrant protection, copyright, patent or otherwise. If you’re unsure whether your particular idea falls into that category, contact an attorney.

2. Ask permission. Yes, this does put you on the owner’s “radar”, but show some respect. If you’re making a clone or fan game, at least be sincere about it—obviously you enjoy the game, so show some respect to the game’s creators and publishers and inform them of what you want to do.

If they say yes, you have carte blanche right to use whatever you’ve told them you wanted to use in your product. If they don’t respond, you have a good faith laches/waiver defense. In English this means that the company/publisher has waited, with knowledge of the fact that the infringement was going to happen, until you’d already put yourself past the point of no return as far as production and distribution, before acting.

Generally this conduct is frowned upon by the Court and is therefore treated as a “waiver”; otherwise the Court will honor your laches defense—this is especially true if notice to the company came in the form of a request for permission.

If the company says no, you’ve probably chosen the wrong IP to clone.

3. Come up with your own game. This is probably the best approach. If another game has inspired you, that is a wonderful thing. Let that propel your own creativity and make something unique that is truly worth playing.

[Mona Ibrahim is a Trademark, Entertainment & Media law attorney based in Seattle, WA. She is Of Counsel with Imua Legal Advisors and her practice emphasizes copyright and trademark dispute resolution, IP registration, entertainment & media transactions, general business transactions and employment law. Mona is an avid gamer and is dedicated to serving the gaming and game development communities by providing education, helpful strategy, and legal assistance when necessary.

THE INFORMATION IN THIS ARTICLE IS FOR EDUCATIONAL PURPOSES ONLY. The content of this article is not legal advice. It only constitutes commentary on legal issues, and is for educational and informational purposes only. Reading this article, replying to it via comments, or otherwise interacting with this article does not create an attorney-client privilege between you and the author. No information you provide in the comments portion of this article shall be deemed confidential.

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Michal Strzelczyk
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What about using graphics (sprites, backgrounds, animations) from other games? I'm doing small Flash project right now and I will probably use free stuff found by Google. I know, it's no my problem yet, because my game will be played more then 50 people, but there was a few a bit more popular games. Did you hear about situation when developers had any problems with it?

Tom Newman
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I would much rather see clone or fan games that use the original's resources, than the boatload of "copycat" games that have no direct IP infringement on the original, but rip it off in every other way. At least with the clone games you know what the original source was.

David Gillen
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I often have to educate people on the fact infringing on someone's IP is illegal even if their not making money, people often assume because its free the company can't do anything which is so desperately wrong. The tip about asking for permission is a good one though. To what extent does the waiver permit them to keep working? Or is it just a "get out of jail free" card?

E Zachary Knight
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Since I am not a lawyer I can only give my opinion on the matter.

I would say that that mean that if you request permission to proceed and can document and show proof that you sought said permission and the IP holder does not respond, you are protected from the IP holder seeking damages. You proceeded in good faith that the IP holder did not care that you were making something based off their IP so if they do come after you with a Cease and Desist, they wouldn't be able to sue you for damages. They can still force you to stop working.

Again, only my opinion.

Kevin Reilly
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I don't know if I'd rely on any laches/waiver defense if a company does not respond to a request for permission to utilize their IP in a fan made game. Many publishers and developers do not officially endorse non-commercial uses of their IP for numerous reasons, including the need to preserve their "good faith" belief that fan made works are infringing when they issue a proper DMCA takedown notice. I don't know of any court case that found knowledge of possible infringement by the copyright owner started the clock on the statute of limitations if such work is actually infringed later on. If you don't get a response, the liability still exists and fighting a takedown notice may prompt a lawsuit.

Point 3 is absolutely correct. Being original is the best defense and really what developers should be striving to achieve.

Maurício Gomes
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Too bad that game mechanics are in fuzzy territory if they are patentable or not...

Game mechanics are ideas, they should not be patentable, but some patents do exist (including... ghost car... yes, all those racing games that have a ghost car, that feature is patented), that curbs too much what can be created (seriously, sony patented a game mechanic that involved throwing a monitor on the ground... anyone can patent random stuff and hope that someone else will bump into it).

But one thing that I hate with all my heart, are people that come happily to ask me advice on their clone game, I tell them that it is illegal, and they come with: "A, it is freeware, it is not illegal" or worse: "I know that it is illegal, but I will not be prosecuted anyway...."

Mona Ibrahim
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@ Kevin Reilly: See Kling v. Hallmark Cards, 225 F.3d 1030 (9th Cir. 2000). The equitable defense of laches applies when there has been a sufficient passage of time between the plaintiff's knowledge of the injury and the date of bringing the suit, and the defendant has been prejudiced by that passage of time.

However, you are correct that relying wholly on laches is ill advised, especially if you're trying to avoid any risk altogether. It is an affirmative defense, like fair use.

Mona Ibrahim
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With regard to the waiver/laches issue: Bear in mind, it is ONLY an affirmative defense. Like fair use, you can only raise this if a suit is brought against you. You really shouldn't trust "silence" as a defense if you're trying to avoid suit all together-- if that's your goal, wait for a "yes" or cancel the project.

There is an argument that you can "strengthen" your permission request by stating that silence will be deemed consent/waiver. The counter argument is that because copyright owners are not obligated to enforce their copyrights they are similarly not obligated to respond to every request. So far laches with a showing of prejudice to the defendant is the only real affirmative defense available with regard to permission requests.

Kevin Reilly
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Mona, I am not sure that case supports your conclusion regarding the availability of a laches defense considering the 9th circuit reversed the district court's grant of summary judgment for the defendants on those grounds. Is the silence of a copyright owner an available defense to infringement? I am not so sure, and Apple, Facebook or any other ISP would pull the cloned game in question when they receive a take-down notice to remain within the 512(c) safe harbor. I doubt they will rely on a developer's good faith belief that they received tacit consent by not obtaining a response to a request for permission from the copyright owner. If anything the request would go to prove willful infringement by the developer and negates a Fair Use defense (if any).

This discussion is fairly academic as any a trial to establish such laches defense would cost more than most indies could afford.

Meredith Wylie
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This is a very good topic in light of the current popularity of casual online social games. There are more and more "copycat games" surfacing. I have a feeling that in the very near future this issue will be aggressively dealt with and a clear legal definition of what makes a "clone" game will be decided. IMHO the thought of patenting a single game mechanic and what that could do to stifle future growth in the industry makes my stomach turn. I think there should be some sort of percentage determined. If 50% of a game's overall story/mechanics/artistic style etc. is unlike whatever game it is being compared to, and the work was not stolen from any other previous existing source and was created specifically for use by the game in question, then it should qualify as an original.

Mona Ibrahim
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Kevin: Generally I don't assume that people will be 100% risk avoidant. If that were the case this article wouldn't be necessary. I'll stand by my suggestion that asking permission or advice from an attorney will help mitigate risk. Laches is certainly a possible defense, although as with ANY defense you can't guarantee success and as you pointed out, it requires litigation.

There is a difference between risk avoidance and risk mitigation, which I tried to address in the suggestions presented. The nuances of the law, while fascinating, miss the forest for the trees. I'd be happy to continue the discussion if you'd like to shoot me an e-mail: (and for the record, there's a circuit split re: laches; 2nd an 9th circuit recognize a laches defense in copyright, 4th strictly prohibits the defense, 6th takes a middle road, etc.)

However, you raise an excellent point that relying on silence in no way avoids the risk of a take down notice. The only way to truly avoid that risk is to create something entirely new, which is tantamount to saying "don't do it."

Meredith: what constitutes 50%? What if only a technically small portion is used, but that portion goes to the heart of the entire game? Say, for instance, in the Zelda example you've only used the characters. If you developed those characters and that franchise would you want others to have free use of those distinct creations?