Are Fan Games Illegal?

By Kotaku on at

By Jack Yarwood

Fan games are controversial. On the one hand, they’re an excellent way for up-and-coming developers to learn the basics of game development and display their immense passion for whatever it was that got them into making games in the first place; on the other, they’re infringing upon established trademarks and copyrights, blurring the line between official and unofficial products. When a fan remake gets taken down through legal action, as has happened several times in the past year alone, it rarely engenders goodwill towards the company in question. But what exactly is the legality of these projects? I contacted developers, publishers, and legal professionals to find out where things stand.

Austin Hanna is a video game developer and a SEGA enthusiast who’s based in Australia. He’s also the founder of a fan project that aimed to remake Jet Set Radio Future in high-definition for PC. Comprised entirely of volunteers, Project Beat - as it became known - is a good example of the motivations that drive people to take on these huge projects. Upset by the lack of a PC port for Jet Set Radio Future, fans of the original game banded together online to make their own.

“Fan games really benefit the community as well as the companies that made the original game,” reckons Austin. “Making fan games brings the community together and it’s something very special. That's why our team did it: to make the community a lovelier place.”

Beyond quenching the community’s thirst for a high-definition Jet Set Radio Future on PC, the project was also a great teaching tool for the team, allowing them to experiment with game development before starting with their own original titles.

Nonetheless, Hanna is aware that Project Beat stands on shaky ground. “If Sega wanted, they could have shut us down at any time,” he says. “Look at all the Nintendo fan games that get shut down. While I may not agree with it, it is still their right and we have to respect that.”

Going under the name CryZENx online, developer Giuseppe Macula also uses copyrighted material in this way. He’s popular on YouTube for his videos showcasing remade Unreal Engine 4 versions of The Legend of Zelda: Ocarina of Time and Super Mario 64, but these projects exist purely as a training exercise for him, helping to better verse him in the software he’s using before he moves on to something of his own.

Macula sympathises with the tricky position that this kind of work puts publishers in, though he’s quick to try and distinguish his own output from the fan games that have been hit by Digital Millennium Copyright Act (DMCA) takedowns, clarifying that his projects don’t extend beyond a technological demonstration of a product that’ll never be released. But that hasn’t stopped Nintendo before.

“Nintendo being tough on fan games or remakes is understandable to me,” comments Macula. “I would react just like Nintendo. My projects are simply to show the community that remastered games should be remade like that! And as far as I know, Nintendo doesn't take down tech demos, because they’re not full games. They’re just for testing.”

Nintendo is especially notorious for being extremely protective of its intellectual property. In recent memory, Nintendo has used the Digital Millennium Copyright Act to put a stop to a Metroid 2 remake, a Super Mario 64 in-browser demo, and a new Pokémon title named Pokémon Uranium. The company also removed 562 fan games from the indie website GameJolt, which hosts creations produced primarily by young, aspiring game developers.

“When you receive a DMCA, it's not a conversation, it's a compliance request that you have to accept within 24-72 hours or leave yourself open to a lawsuit,” says David DeCarmine, the founder of GameJolt. “The law doesn't give grounds for negotiation. Companies know what they're doing when they send a DMCA notice. In most situations it’s sent from their legal counsel. It's not about having a conversation.”

Upon obtaining the DMCA notice from Nintendo, DeCarmine had very little choice but to remove the infringing material, wiping hundreds of community-created projects from public view. While he accepts that Nintendo has control over its intellectual property, he still finds it hard not to be a little disappointed, believing that fan games contribute to the industry and the longevity and promotion of the original games.

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“I think a lot of folks are heartbroken because they didn't make these games to try to be rich and famous. These aren't competing commercial studios creating ripped games to get rich off of someone else's genius,” he says. “They're fans making games because they love the original ones and want to be involved in some way beyond consumption.”

Nintendo’s response to this comes in the form of a standard press statement, given out whenever there has been a DMCA incident over the past year or so:

“Nintendo’s broad library of characters, products, and brands are enjoyed by people around the world, and we appreciate the passion of our fans. But just as Nintendo respects the intellectual property rights of others, we must also protect our own characters, trademarks and other content. The unapproved use of Nintendo’s intellectual property can weaken our ability to protect and preserve it, or to possibly use it for new projects.”

Nintendo has clearly established that it is against all uses of its intellectual property without permission. This suggests that any creators hoping to use Nintendo’s copyrights, patents, or trademarks to produce their own fan games will face legal repercussions. Legally speaking, though, that is entirely fair. This is something that seems to clearly understood by many of the fan developers that I’ve spoken to.

Ryan Morrison, who Tweets as the Video Game Attorney and is a founding partner of Morrison & Lee LLP, elaborates on the legal standing of fan games. “All fanfiction, fan art, and fan games, and everything else is infringing 100%,” he says. “There’s a defence for some of it called fair use, but fair use is a defence that means ‘yes, I infringed, but it was an allowable infringement’. So yes, they’re all definitely infringement. It’s about whether or not they’re fair use.

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“A lot of people argue they’re fair use if they’re free. I happen to disagree. Even though I maybe don’t philosophically disagree – I’d like to see more fan games and things like that – the way the law works, it’s definitely not an allowable use of someone’s IP.”

One important legal factor here is that if a company doesn’t defend its trademark, there may be a risk of losing it. High-profile cases where this has occurred include aspirin and thermos. Both of these names were originally coined as trademarks and lost due to ‘genericisation’, which means that they became too closely associated with a general class of products rather than a single, named brand. Then again, there has been no known case of this inside of the games industry.    

Another reason why fan games aren’t legal, according to Morrison: it can confuse the customer by using established trademarks and copyrighted material. It can be argued that Nintendo has an ethical responsibility to protect customers from inferior or unofficial products, and it’s the company’s moral duty to issue takedowns to ensure that customers know what they’re buying (or playing for free) is actually legitimate, rather than a copy. Failure to do so may lead to these inferior copies damaging the company’s reputation or standing with its customers.

It’s mostly young fans putting out this type of content, influenced by a great enthusiasm for the game that inspired them. But while the creators’ motivations may be innocent enough, that unfortunately doesn’t prevent them from having infringed upon the original creator’s rights. Any fan-game maker is liable to receive a DMCA takedown notice or - worst case scenario - have to hand over large cash settlements if they fail to comply in time with the request.  

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So, what can fans do to avoid legal action when working on unofficial remakes, spinoffs, and sequels?

“My advice is simply don’t do it,” asserts Morrison. “But if you really want to, you should go out and ask for permission and get a license and get an approval to do it. Without that, you’re just asking to have all your work thrown away and potentially lose hundreds of thousands of dollars, if not millions of dollars in extreme situations. It’s absolutely not advisable. There’s no safe way to do it. It doesn’t matter if it’s free. It doesn’t matter if it’s given away. None of the above matters. It’s not allowed, so my advice is don’t do it.”

While the morality of fan games is debatable - is it really stealing if you create something based on a beloved series, and don’t try to make money from it? - the legality is clear. Whatever the motivations behind them, without the consent of the original creators, fan remakes are not legal.