No, it's never quite that simple. Not only are there other potential legal implications, but there have been some longstanding arguments in favor of fan fiction from a legal standpoint. Let's start with other potential issues beyond the copyright issue. In many instances, a fan work may also infringe on the trademark rights of the original work.
So what are some of the arguments from the other side? Well, ignoring the completely non-legal arguments (I'm not making money; I help you attract more fans; etc.), there is really only one and that's fan fiction constitutes a fair use. What is a fair use? It's a list of certain circumstances where it's alright to reproduce part of a copyrighted work without permission. The list, generally, includes "criticism, comment, news reporting, teaching, scholarship and research," but has also been imputed to include parody and possibly satire. So if you're doing one of those things with the work, then you're essentially safe (though fair use is a defense, and you would still have to go to trial to assert the defense). When the court is considering fair use, there are four factors:
- The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
- The nature of the copyrighted work
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole
- The effect of the use upon the potential market for, or value of, the copyrighted work
The factors, like so many others in the legal world, are wholly discretionary. So, just because something is not for profit, that doesn't automatically make it a fair use. In fact, for most of these projects, it's primarily the last two factors that play into the issue: the amount and substantiality of what is taken from the copyrighted work and the effect on the potential market. With most fan games, there is a significant amount borrowed from the original work, including characters, settings, and even plot points. Some of these games may even re-use sprites and music. But more importantly, these fan sequels can hurt the market for the developer's sequel, or even hurt the original game if the quality is poor or the substance is horribly offensive to the majority of the fanbase.
Stepping further into the possible questions, it's been pointed out more frequently that activities like cosplay and fan art could face the same legal issues. Again, it faces the same factors as the above, and would vary on a case by case basis. Of course, you have to remember that something being inspired by a game doesn't automatically mean that selling it would be infringement. For example, I can't imagine that the contents of i am 8-bit
would be viewed as infringement, nor could I imagine a pair of prints I own (landscapes inspired by Halo
maps) would be.
Of course, if you have permission from the rights holder, then none of these concerns matter, which brings me to an interesting point. Microsoft's content usage rules, in theory, apply to all of this. In fact, many different companies have some sort of policy on fan work, and to the extent those rules are followed, then the fans can feel free to produce whatever they wish within those confines. And many copyright holders have been receptive to allowing certain kinds of fan content, and that's ultimately their decision.
As a final point, I've seen many comments suggesting that Nintendo, Square and others adopt the fan work and sell it as their own. While I can certainly appreciate the hunger for additional content and understand people not wanting to see work go to waste, I also have a pretty good working idea of what exactly prevents this very thing from happening. In short, beyond the desire for creative control, it's a general fear of lawsuits. Even if you want to consider all of this non-canon entries in the series and ignore the creative control and storytelling aspects, there's a serious lawsuit risk. With all of these fan projects, there are a ton of people involved. Many of these ideas for plotlines get hatched in forums over a genesis of posts for months. Beyond the simple issue of dividing payment for the work, there's a major risk that someone will sue based on their claim to a contribution that may or may not be legitimate, and ultimately, these projects likely won't bring in enough revenue to cover the cost of acquisition, the cost of a lawsuit, and still make any money for the publisher. After all, this is still a business.
So, does this mean I think everyone should abandon all of their fan projects? No, I just think those participating need to have realistic expectations with regard to their work and be doing it for the fun of it. When it comes right down to it, no one may ever actually get to play the game before you're served with a cease and desist or a lawsuit. On the other hand, you may be able to build your entire project within the pre-defined constraints of, say, the Microsoft Content Usage Rules, and allow others to enjoy your work. Ultimately, if you want to produce something for profit, you're going to have to create your own universe or work with someone who has. But in terms of simply honing your skills as a designer or programmer, working on a fan project is as valid as any other exercise, just not entirely legal.
Mark Methenitis is the Editor in Chief of the Law of the Game blog, which discusses legal issues in video games. Mr. Methenitis is also a licensed attorney in the state of Texas with Munck Carter, LLP, and a member of the Texas Bar Assoc., American Bar Assoc., and the International Game Developers Assoc., where he is a board member of the Dallas chapter. Opinions expressed in this column are his own. Reach him at: lawofthegame [AAT] gmail [DAWT] com.
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