A question for those who understand game patents and franchises...
Lokitoes
Member, PRO Posts: 187
Hi all,
Beginner question here:
When a franchise, such as a television show, file a brand trademark that covers games, are other independent makers still allowed to make unofficial (as long as this is clearly states) games using that franchise's characters? Or is it off the cards completely? What about if said unofficial game was given out for free?
Cheers!
Comments
No that what a trade mark is for. Once something is trademarked the holder has all rights to how that image et.. Is used.
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Absolutely not !
You only need to do a quick thought experiment to see how this would play out if the opposite were true (if you were allowed to freely copy other people's IP).
Imagine DC Comics spend a decade (and a lot of money) developing a new character ('SuperOctoganMan'), and launch him in a blaze of (expensive) publicity, a slew of new comics, merchandise, T-shirts, toys (etc) and even talk of a Hollywood film with SuperOctoganMan possibly being played by Danny Devito (don't ask) . . . . now imagine if Marvel Comics saw all the interest people were showing in DC Comics' new character so just decided to make their own SuperOctoganMan comics, merchandise and films . . . obviously if this were possible it would be mayhem, IP would effectively disappear, no one would invest in any new product knowing they are just doing all the groundwork, research and investment so their rivals can cash in on their efforts once the product is ready to launch.
I'd say that was worse, it's one thing to take other people's work and sell it for personal profit (at least the owner could sue and any money made from your use of their IP recovered), but taking someone else's work and giving it away for free means not only are they unable to recover any money lost to the illegal use of their IP, but you also risk damaging their brand / market value by positioning their product as free . . . is the originator of - for example - 'CrazyHairStudioForGirls' still able to sell their product for $15 when others copy and release their own versions of 'CrazyHairStudioForGirls' for free . . . ?
Think of the 'but I gave your IP away for free, why would you be upset ?' argument like this, if someone took you car without permission would you rather they had sold it (in which case you might not ever track down the car, but you can recover the money paid for it), or would you rather they had given the car away to someone for free ?
. . . rushes off to trademark 'CrazyHairStudioForGirls'.
I guess it depends on the product and the company. If you look on the various app stores, especially Amazon - who trumpet on about IP protection, but you wont have to look far to see the likes of Super Mario, Sonic and other characters used as icons either to mislead, or for game guides etc.
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Lol
There are many issues at play.
Copyright is one of the biggest and you are not allowed to LEGALLY make ANYTHING that uses copyrighted material without permission - usually involving a licensing fee. Keep in mind... thinks like movies and games have copyrights on movie name, the characters, the music, etc. So technically, if you wanted to create a movie based game, you would need to license the characters, the name and the music and/or effects. Sometimes, that's from different licensing groups.
Trademark is something a little different. A trademark is a BRAND registered for a particular industry. It cannot be used in any sort of competing industry. For instance, a trademark on the name Monster can be used by Monster Cables and will prevent anyone else from using Monster in any cable/computer accessory market. At the same time, Monster can be registered to be used for DRINKS. Why? Because it's a not competing area. One stipulation of trademark law is that a trademark has to be defended - which usually results in overzealous defense and Monster cables going after EVERYTHING that mentions Monster, regardless of industry. And a patent attorney will most likely ask for a $10,000 retainer up front and take it from there.
Patents aren't really applicable in this situation. Software patents are not as common and have recently taken a hit from the Supreme Court.
Now, that said... many major companies overlook fan fiction, but technically it's a derivative work and you will see people smack it down from time to time - usually to their own ire since fans have a tendency to be LOUD when this happens and no sane author or company wants to invoke the Streisand effect. However, creating a video game with characters is a different thing entirely. If it's an obscure book, then approach the author and ask - if it's a major book, then they may already be working on a game and don't want to muddy the rivers.
In summary - don't do it. If you want my personal advice - don't do it. And... in case, I wasn't clear - DO NOT DO IT.
You are opening yourself, your assets and your family's assets up to a world of hurt.