Are fan games / VNs / anything legal?

[InvertMouse]

Hi everyone ! I will be attending a few cons in the upcoming months and I am looking forward to them. Often in cons, I would buy works from local artists to show some support. Many of these are fanart, but in cons, this is accepted, right? Comiket would be the biggest example of them all.

I heard that a while back, some Touhou fan game project that was going onto Indiegogo got shutdown, and it makes me wonder, when is it okay, and when is it not? Are there any solid rules around this topic? Sometimes, it feels like fan works are okay as long as they never grow too big. Once they make too much money, then it becomes a problem, or something like that.

It often isn't about the money either, since that Metroid fan game got shutdown recently, and that was free. Is it because the style is too similar to the original game?

I have seen doujin Madoka Magica games solid in stores while I was wandering Akihabara many years ago. If Japan can be known to be strict with this stuff, how come these works are being sold in their own country of all places? Does anyone have any insight on this matter they can share? It feels like such a mystery to me.

To be honest, there is a fan story that I have been wanting to produce into a short game, but all of these possible concerns really make me hesitate, which is why I would like to become more knowledgeable in this area.

Thank you !

[Nosebleed]

There are probably many variables and each case is different, but it's clear as day that parodying other workswithout permission is illegal. The question then becomes: are the IP owners okay with the infringement or not?

When it comes to fanart and the like being sold in cons, usually nobody makes a fuss because the money you'll make off of that couldn't even scratch the actual brand. It's usually some small booth in a corner selling bootleg stuff that's not worh caring about.

If you're making a game however, things can change depending on the intellectual property you're basing it off of. If you're making a fan game of another game, that means you're DIRECTLY competing with it, and that's usually not good because it can tarnish the brand, especially if you're making money off of it.

When it comes to doujin manga in Japanfor example, usually the copyright owners simply ignore it because it's both free advertisement and it's an incentive for people to get into the industry itself. In the West however, fan made parodies have often gotten taken down by the owners of the IP because they don't want anything that's not theirs floating around since it dilutes the brand.

I think that in the end there are 2 main factors: money and the owner's will, and it's really hard to know what exactly will happen to you. If you're dealing with a big company that's protective of their IPs, then you might want to reconsider, but if you're dealing with a person's work, perhaps contacting might save you some trouble. Or you can risk it and go ahead with your project without asking and then hope you don't get a DMCA.

[WinterfuryZX]

18 minutes ago, InvertMouse said:

 

I heard that a while back, some Touhou fan game project that was going onto Indiegogo got shutdown.

You can't simply deal with Zun, he's not famous for his diplomacy... lol.

[Valmore]

33 minutes ago, Nosebleed said:

There are probably many variables and each case is different, but it's clear as day that parodying other workswithout permission is illegal. The question then becomes: are the IP owners okay with the infringement or not?

Incorrect - parody is generally legal with or without permission of the original artist and falls under "fair use." Cases in point - Weird Al doesn't "have" to get permission to parody a work, but as a courtesy he usually does. "Amish Paradise" was actually recorded without Coolio's permission (Weird Al thought he had gotten it) but because parody is legal Coolio had no recourse other than to complain. The two eventually made up, but there was nothing illegal with what Weird Al did. Also in point - there have been parodies of computer games. For example:

That was a parody of the 90's game "Myst" for you young'uns.

Parody generally takes the form of what's being lampooned in a humorous way but usually has its own copyright as part of it. What I'm currently writing is a parody - we didn't need Manga Gamer or Overdrive's permission, though our boss did end up talking with Manga Gamer and they were pretty cool with it, but did request a change in the GUI and to change "GO! GO!" We did both, mostly just to avoid having hard feelings over a potential court battle that we probably would have won, but why bother when the requests were minimal? They made no mention of the two waifus or the trip to East Asia, etc. So while you can have some legal issues in parody, in general it's the safest form of playing on existing copyright.

The thornier issue is using existing copyright in creating your own media. In general anything you do for yourself in your own home is protected. You can make as many X-Men comics you want. Create Deus Ex: Wipe Out Montana. Write the script to Grisaia IV - Yuugi drowns in Amane's boobs. Whatever. In your own home for yourself only is fair game.

Distribution of it is the issue. Some companies are cool and will let you upload mods to Steam on their page. Some don't want any part of that and will take you down wherever you go. It kind of depends on the company. A big no-no is if you try to sell it. That's copyright theft no matter what way you slice it.

[Silvz]

What about mods [IIRC] for copyrighted game, such as the many paid Portal 2 mods we can see on the internet?

[Valmore]

29 minutes ago, Silvz said:

What about mods [IIRC] for copyrighted game, such as the many paid Portal 2 mods we can see on the internet?

If it's made by an unauthorized source from outside of the company who produced the game, paying for a mod would be illegal - the person who made the mod is profiting off of the intellectual property of the original holder. Even free distribution can be tricky, though companies will usually turn a blind eye if no profit is made (but not always). The question is how much time and resources does a company want to use pursuing those profiting off of their IP.

[Khazit]

Technically, fan stuffs that are not parodies are illegal, in the sense that the owner of the property can sue your ass, and might win. Most companies don't bother with it because they're both free advertising and going after fans can result in huge backslash, not to mention even if they win the financial gain would be minimal, if there is any at all. However, there are exceptions.

[Clephas]

A lot of times, it is based on whether it is worth the company's time to bother suing.  For better or worse, the doujinshi sold at Comiket are tacitly tolerated (though many are illegal).  However, that kind of tolerance is almost nonexistent in the West.  Unfortunately, here in the West, interpretations of patent and copyright law are unpredictable, and most indie producers just don't have the means to pay for the kind of settlements a company like Nintendo might seek... so they shut down.  Technically, most of those derivative works aren't breaking the law if: 1) there is no money involved 2) the work in question is different enough from existing works in an IP to make it not qualify as a breach of copyright law.  Unfortunately, the second condition is insanely vague, here... and depending on the judge you get, you'll get a different opinion, since SCOTUS (here in the US) hasn't spoken up on it. 

[Khazit]

2 hours ago, Clephas said:

However, that kind of tolerance is almost nonexistent in the West. 

Not really. Many authors, such as J. K. Rowling, has stated that they're fined with fan works. Fan artists in comic cons are also pretty common.

[ExtraMana]

Not to put too fine a point on it but I've yet to hear of a fan-made manga artist being sued. I doubt the publishers are interested in low-level convention distribution. 

[Valmore]

8 hours ago, Khazit said:

Technically, fan stuffs that are not parodies are illegal, in the sense that the owner of the property can sue your ass, and might win. Most companies don't bother with it because they're both free advertising and going after fans can result in huge backslash, not to mention even if they win the financial gain would be minimal, if there is any at all. However, there are exceptions.

Distribution is the key. Mostly because if you're just writing you own little story about Deadpool hanging out with Hello Kitty in Narnia for your own enjoyment, it's not likely the companies ever see it. You aren't profiting from it (in a financial term) so there's no harm to the original IPs. Free distribution is technically illegal, but it depends on the company or IP holder how far they want to go. As you noted, freebies tend to get a blind eye as it's mostly free advertising and the company stands to gain very little aside from looking like a bully. Though they may get a bit rankled if you represent their IP in a way they don't like. They may also take issue if you use the website for making money (like click banners and pop ups) though. Once you bring money directly changing hands into the equation, all bets are off. That's just outright theft.

[InvertMouse]

Thanks for the replies everyone !