Cameron McKenzie
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I'm working on a two-player card game that I may eventually release as a free print-and-play version (currently, I'm using as Vassal module as a prototype). The game uses a small number of images from a TV series as well as names of characters and places, and I'm wondering if this could cause any problems if I go the PnP route.

I know I've seen similar projects out there before (such as a Dr. Who retheme of Race for the Galaxy) but I figured I would find out more while I'm still early in the design process. I could probably retheme it, but some mechanics may not translate well to a different theme, and it could lose of its appeal.

While I would not expect any legal repercussions for a project this small, I would at least want to make sure that sharing the files over BGG is allowable.
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David Rauscher
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As a general rule, anything along these lines is almost certainly going to be a breach of their copyright.

That being said - no charging? card game (particularly if it's the type of series that is unlikely to have an overlap in the game market)? no posting on the TV show's forums? Unlikely to be noticed or get you in trouble.

In any event, they'd probably just send you a warning letter first.

JMO - I think we havea couple of copyright/IP lawyers on here who may chime in with the specific rules.
 
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Joe Mucchiello
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When in doubt, leave it out. Alternatively, hire a lawyer specializing in Intellectual Property to answer your questions.

If it is your original game, you should not use IP that doesn't belong to you (and you haven't licensed) as part of the game.

Just because there are other rethemes out there doesn't mean they are legal.

And as a gamer answer, personally I would find the use of pictures from an existing show in a game that isn't licensed from the show a cheap substitute for illustrations. YMMV.
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Good question, but bad place to ask. Strangers on the Internet (even on BGG) are not the place to ask for legal advice.

IMHO, the only way I would even consider using copyrighted images is in a game I make for myself and immediate family. If you give it to friends, or especially put it on the Internet, you are asking for a great heap of trouble.

First off, don't assume because it's free it won't get noticed. Secondly, don't think it's free you won't be prosecuted (eg, look at the more recent FBI warnings on DVDs). Thirdly, don't think because it's free you won't be liable for damages; the TV studios could very well claim they lost merchandising value, or suffered damage to their trademark or copyrighted properties, and sue for punitive damages.

You can be suggestive while using other material, but even there you need to be careful. A Space Cowboy theme isn't intellectual property just because Firefly/Serenity is somebody else's IP, but tread too close to the Firefly 'verse (such as place/character names) and you might actually infringe on something. A Space Opera or general Fantasy setting would be hard for anyone to accuse you of stealing.

Check into royalty-free images, public domain images, or license the artists from DeviantArt or here on BGG. There's a wealth of graphic goodness in those troves.

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Cameron McKenzie
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David_Rauscher wrote:

That being said - no charging? card game (particularly if it's the type of series that is unlikely to have an overlap in the game market)? no posting on the TV show's forums? Unlikely to be noticed or get you in trouble.


It would be a free print and play game. There's already a board game based on the series that my card game is based on, but the mechanics are completely different.

Quote:

When in doubt, leave it out. Alternatively, hire a lawyer specializing in Intellectual Property to answer your questions.

If it is your original game, you should not use IP that doesn't belong to you (and you haven't licensed) as part of the game.

Just because there are other rethemes out there doesn't mean they are legal.

And as a gamer answer, personally I would find the use of pictures from an existing show in a game that isn't licensed from the show a cheap substitute for illustrations. YMMV.


Thank you. Do you think there would be any legal issues if I used names only and removed the images? Although, if it comes to that, I will probably just retheme it before I choose to distribute it through BGG.
 
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Joe Mucchiello
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MasterDinadan wrote:
Do you think there would be any legal issues if I used names only and removed the images?

Read Paul's response above again. Legal advice should only be sought from lawyers. If me and 3 other anonymous BGG users tell you "Sure go ahead" do you think the judge will be more lenient when you find out we're wrong?

No, use nothing from an existing source. Be original.
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jmucchiello wrote:
When in doubt, leave it out. Alternatively, hire a lawyer specializing in Intellectual Property to answer your questions.


The single best advice on the subject ever stated on BGG. Too many armchairs lawyers that mean well "think" they know the law. Best to get it straight from the pros.

I don't know squat about doodle but can't see how you could ever go wrong following that advice, but I'm probably wrong anyway.

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Cameron, as you've probably seen, feelings run high here about copyrighted material, with fierce arguments made on both sides of the issues. Some of them are even informed.

For your case, it's worth noting that it's hard to pursue copyright infringement when there's no monetary gain. The strict legal answer would still likely be "it's safest not to use them."

But if you did, probably no one would care, and if some curmudgeon felt NBC needed his eagle-eyed help to prevent unauthorized use of Erik Estrada's portrait, you'd then get a letter insisting that you change it.



There used to be a good thread I now can't find that detailed exactly that course for the (disappointing, and significantly, not 'free') PC game Neverwinter Nights, which originally included a secondary character who looked and spoke like Spock. After complaints, a patch was released to transform him into a bland, unobjectionable NPC, thus saving the Star Trek franchise from certain degradation.
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MasterDinadan wrote:
Although, if it comes to that, I will probably just retheme it before I choose to distribute it through BGG.


Retheme it to something you come up with on your own and you won't have to worry about it.

Heck, retheme it to something really cool that you and your friends come up with, and release the theme under Creative Commons!
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Cameron McKenzie
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jmucchiello wrote:

Read Paul's response above again. Legal advice should only be sought from lawyers. If me and 3 other anonymous BGG users tell you "Sure go ahead" do you think the judge will be more lenient when you find out we're wrong?


Well, of course this is an issue worth giving some thought. If I were going to distribute it as it is, I would not do so on the recommendations of BGG users alone. But if my primary media for distribution is BGG, then I am at least interesting in knowing what the community thinks about it.

If people on this site think it's a bad idea, that should be enough for me not to do, regardless of whether or not its legal. With that in mind, I'm going to start giving thought as to how to retheme my game. Everyone who has played the prototype seems to enjoy it and I want to make the game available to the BGG community even if I have to make some changes to do so.
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yeah? well… y’know, that’s just like, uh… your opinion, man…
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there's a lot of fan fiction about BSG on the net. I don't see any difference to a fan game.
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Neil Wehneman
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Cameron:

I am a lawyer, but I'm not your lawyer. This is an overview of the relevant law, but I don't know your specifics (and would prefer not to know, so that we can keep this generic and avoid questions of me practicing law across state lines). Hopefully this can nudge you in the right direction for future research or help you have an intelligent conversation with your own lawyer.

In the United States, there are two types of copyrights: registered copyrights and unregistered copyrights. If you infringe on an unregistered copyright, you can be forced to stop your activity and pay for the damages that the copyright holder can prove. If you infringe on an registered copyright, the copyright holder has the option of skipping proof of damages and rely on the statutory $150,000 per work infringed language you see at the start of DVDs. Additionally, a registered copyright holder is entitled to their attorney's fees. If you are using a broadcast television show, you are almost certainly dealing with a registered copyright.

The copyright holder has five exclusive rights: reproduction, distribution, public display, public performance, and the creation of derivative works. It sounds like you are infringing two of those by creation (reproduction and derivative works), and posting on BGG would infringe another two (distribution and public display). So you definitely have to consider copyright.

However, there is an important limitation and exception on copyright in the United States: Fair Use. Fair Use states that certain "infringements" are not actually infringements (even though they are a reproduction, etc.) because as a matter of the First Amendment and public policy, we want to encourage these uses. However, unless there is a court case directly on point, it is very difficult to determine ahead of time whether a given Use is Fair. (Indeed, Judge Posner of the 7th Circuit, one of the most brilliant legal minds of our age, once called Fair Use one of the most difficult topics in all of the law.)

There are a lot of Internet resources on Fair Use, and some of them are even accurate. The two most important factors when considering Fair Use are 1) is the new use transformative and/or non-commercial and 2) what is the effect of the new use on the market for the old work? It sounds like your new use is transformative, and it also sounds like it is non-commercial, which both help on the first factor.

However, it is not uncommon for TV shows to be turned into board games (see, e.g., Battlestar Galactica), and even if your game is dissimilar to what has been published or could be published, the fact remains that some people could get their TV show fix from your game and choose not to buy a board game from the copyright holder. Also, the fact that the copyright holder might not have yet published a board game is not dispositive! (See "the Texaco case", upholding finding of no Fair Use based upon a potential market).

The bottom line is that it would be very difficult to say authoritatively, ahead of time, whether or not your use is a Fair Use. You have to decide what your risk tolerance is, and whether you are willing to trust that you will be sent a Cease & Desist letter ahead of time. (Remember: the copyright holder does not have to warn you or demand you take the new work down. They can proceed directly to a lawsuit.) However, I would expect the copyright holder to object if they found out about your use (whether by C&D or lawsuit), because they can argue with a straight face that your new work is an infringement. (It may be that your use adds value to the original work, but most large copyright holders object to any and all unlicensed uses as a matter of standard operating procedure.)

This is not a very satisfying answer, and the consequences for being wrong on the Fair Use question are potentially dire, but it's the state of the law today. Good luck!

- Neil Wehneman

P.S. This post only dealt with the copyright issues. There are also trademark and right of publicity issues. However, the copyright issue is likely the one with the most (potentially) dire consequences, as well as probably the most difficult hurdle for you to get over.
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Joe Mucchiello
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woodoo03 wrote:
there's a lot of fan fiction about BSG on the net. I don't see any difference to a fan game.

Fanfics do not use images from the TV show. That's a very big difference.

Regardless, just because THEY are not being sued does not mean YOU will not be sued. And "Hey, they haven't prosecuted that other guy" doesn't protect you when you are sued.
 
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Cameron McKenzie
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landaras wrote:
This is not a very satisfying answer, and the consequences for being wrong on the Fair Use question are potentially dire, but it's the state of the law today. Good luck!


It is very satisfying! I would not expect a definitive answer on this subject (especially not on an internet forum) but you've provided extremely useful information. Thanks!
 
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Seth Owen
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landaras wrote:
Cameron:

I am a lawyer, but I'm not your lawyer. This is an overview of the relevant law, but I don't know your specifics (and would prefer not to know, so that we can keep this generic and avoid questions of me practicing law across state lines). Hopefully this can nudge you in the right direction for future research or help you have an intelligent conversation with your own lawyer.

....

This is not a very satisfying answer, and the consequences for being wrong on the Fair Use question are potentially dire, but it's the state of the law today. Good luck!

- Neil Wehneman

P.S. This post only dealt with the copyright issues. There are also trademark and right of publicity issues. However, the copyright issue is likely the one with the most (potentially) dire consequences, as well as probably the most difficult hurdle for you to get over.


This would be a good sticky, because it explains the issue very well while also being concise. This question seems to come up about once a month.
 
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MasterDinadan wrote:
I'm working on a two-player card game that I may eventually release as a free print-and-play version (currently, I'm using as Vassal module as a prototype). The game uses a small number of images from a TV series as well as names of characters and places, and I'm wondering if this could cause any problems if I go the PnP route.

I know I've seen similar projects out there before (such as a Dr. Who retheme of Race for the Galaxy) but I figured I would find out more while I'm still early in the design process. I could probably retheme it, but some mechanics may not translate well to a different theme, and it could lose of its appeal.

While I would not expect any legal repercussions for a project this small, I would at least want to make sure that sharing the files over BGG is allowable.


I know exactly how you feel and the answers in this thread are very useful (for reminding me what I already knew and that, no matter how good and noble out intentions are, the law is the law and there's a very good reason for it being so).

About 6 months ago I had an idea for a game based upon the West Wing and, for a while, I indulged myself in a happy little vanity project working out the mechanisms and adding on the theme and, essentially, using it as an extention of my passion for the programme. I knew it could never see the light of day for copyright reasons and as a result it exists as a collection of bits of cardboard, computer files, labels and recycled parts of other games which would never make it further than my own dining room table (although I think it works quite well).

The problem is that, as with Battlestar Galactica, it wouldn't work nearly as well a pure vanilla politics game - the theme and the characters are important (IMHO). That doesn't mean that such a game can't exist as obviously it can but that linking ideas to TV series can add something worthwhile. But, as I readily acknowledge, that's the law and that's how it is.
 
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I never said it was Battlestar Galactica, but you guys guessed correctly! Anyway, the idea started formulating in my head after playing Colossal Arena (and you can see some similarities in my design) and I added some mechanics that were inspired by the BSG theme, but were my own design nonetheless.

Anyway, I spent about 6 hours retheming it last night and I'm pretty satisfied with the results:
http://www.boardgamegeek.com/thread/498190/playtesters-via-v...
I feel a lot better about releasing this version, and it also means I can take more liberty with the mechanics if I want without worrying about it being "unthematic," so it's a good thing overall.

I don't think I would have ever gotten this far without the BSG theme as it was a good motivation for designing many of my mechanics, but now that I've made it to this point I'm glad that I abandoned that theme.
 
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Paul Nowak
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landaras wrote:
Cameron:

I am a lawyer, but I'm not your lawyer. This is an overview of the relevant law, but I don't know your specifics...


Tipping you 1 is some of the cheapest I've ever heard of paying for a lawyer's time.

Just a reminder, there is a mega thread on the IP considerations for game design here in the design forum:
http://boardgamegeek.com/thread/493249/mythbusting-game-desi...
 
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woodoo03 wrote:
there's a lot of fan fiction about BSG on the net. I don't see any difference to a fan game.


Fan fic may infringe on trademarks but it very rarely infringes on copyright (unless the writer quotes verbatim). Using images is a different matter - images are verbatim and thus copyrighted. You could draw a picture of an image and you'd be in the grey zone, but using the images outright will be a breach of copyright.

You could release it, knowing you breach copyright, and hope that you won't get sued (or given a cease-and-desist), that's up to you.
 
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Neil Wehneman
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Quote:
Fan fic may infringe on trademarks but it very rarely infringes on copyright (unless the writer quotes verbatim). Using images is a different matter - images are verbatim and thus copyrighted. You could draw a picture of an image and you'd be in the grey zone, but using the images outright will be a breach of copyright.


Sorry Filip, but copyright is not simply limited to reproductions.

Although I don't have Sweden's statutes in front of me, I do know Sweden has signed on to the Berne Convention (as it is incorporated by reference into TRIPs, all members of the WTO have to agree to TRIPs, and Sweden is a member of the WTO). Article 12 of Berne provides "Authors of literary or artistic works shall enjoy the exclusive right of authorizing adaptations, arrangements and other alterations of their works." This is the derivative works right, which most assuredly is provided for in some Swedish statute.

Fan fiction may or may not be a Fair Use in the United States, or subject to some other limitation or exception in other countries. But absent a limitation or exception, fan fiction is most definitely an infringement of copyright.

Additionally, it is possible for literary characters themselves to be copyrightable, and so reproducing the character him/her/itself would be an independent violation of copyright (aside from the derivative work from the universe / setting of the original work).

- Neil Wehneman
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