Another Lesson on Legal Anarchy - Why Your Fan Game Ain't Legit (Or Even Good)

"By this letter LucasArts Entertainment Company hereby demands that you immediately cease and desist from such unauthorized use of any LucasArts' proprietary property"

From Matt Shaw's mailbox (hooray!)

That's it. If you make a fan game, you are stepping over issues of copyright, trademark and the wider domain of intellectual property with the vain defence that it's all in the cause of entertainment. Hey, the people who make the fan games aren't making any money, they're just showing their appreciation for LucasArts' (LEC) output, even if it is with (1) poor humour, (2) a lack of reason for the thing existing and (3) less than 1% of the originality and quality of the game the fan product is based one. Guaranteed! All is well in the land of LEC fandom!

The infamous LEC letter.
Except it’s not. By making a fan game and using characters, locations and even graphics from LEC's videogame canon, you're taking established copyrighted material and using it as if it was free to use by everyone. The profit issue isn't a Get Out Of Jail Free card; it doesn't really enter into the equation. I'm confident LEC's legal department believe fan game makers aren't in it for the money. Most fan games wouldn’t sell for a cent anyway. The problem rests with the simple fact that if you make a fan game, you're using names (the Threepwood family name and character history in Fate of Monkey Island), places (Monkey Island in, well, every Monkey Island fan game, ever) and stories that don't belong to you.

In Yorick Kingzjester's crazily ambivalent A Lesson on Legal Anarchy, he seems to take exception with the fact that in their cease-and-desist letters, LEC require written assurances that the fan game maker won't try another project using the company's intellectual property. But this isn't out of line. It's a perfectly reasonable request - did the fan game maker even bother writing to ask permission to make his amateur follow-up? - and the fact that it's not deemed a waiver of LEC's right to sue is a standard element of law.

Even with a letter from the fan in their hands, LEC could still sue; you use their property without asking and you've just sidestepped laws that - at the risk of grand statement and overblown tradition - have been in place for hundreds of years. I'm not saying that fan games are going to lead to the destruction of the World Intellectual Property Organisation or that LEC would take a fan project to court. I seriously doubt either of those things would ever happen (especially the whole WIPO destruction part). LEC just doesn't want a lot of poor imitations, which in my opinion fan games have invariably proved to be, souring the potentially ill-informed consumer's opinion of the company.

Even if you don't accept that argument, there's more hiding up LEC's sleeve of legal tricks. Here's an example. Say that the year before Escape From Monkey Island was released, Joe Fan Game (blame his parents Mr. & Mrs. Game for his silly middle name) had made a fan game that involved Guybrush on another quest round the Tri-Island area. But Joe had a great idea; he included a clever subplot where it was revealed Herman Toothrot was Elaine's father. Now apologies if you've not completed EFMI yet, but this same plotline was used in the official game. See the problem yet? LEC don't want to release a game that the fan game creator can claim uses part of their story. It's the spawning of reverse litigation. In Hollywood, studios will buy up unsolicited scripts for sequels to their movies, even though the studio never intends to use the script for filming. It's a way to prevent the writer having the means to challenge the studio in court for theft of parts of his script; which, if he took the proper steps after completing it, would be copyrighted. Part of the reasoning behind LEC' legal department actions may be the same.

Scurvyliver Entertainment went on to creating the excellent "That Night Before" after "The Fate of Monkey Island" was canned by LEC.
Yorick also mentions the legal mumbo jumbo of Title 18, Part I, Chapter 113, Section 2319, which is how the criminal law deals with copyright theft. It is largely irrelevant. If LEC sued someone for making a fan game, they'd go for the money, not a jail sentence. It wouldn't be a criminal trial. Simple as that. So why has legal action been threatened against people like Scuryliver and Matt Shaw, when works-in-progress like Zak McKracken 2 and Fate of Atlantis II continue to survive? Be under no illusion; LEC know about these projects, but I think the difference is that neither of the aforementioned projects have released any playable versions of the game - demo or full version - and as such only contain (still infringing) pictures and planned story elements. It's a safe bet that when (or if) playable versions of these games are released in the public domain that the cease-and-desist orders will be in the mail. But don't put money on that bet, because gambling is wrong. I think. Completed fan games pose the most urgent infringement risk, compared to a couple of screenshots for a game that might never happen.

Yorick also makes mention of the 'substantially similar in appearance' disqualifying fact for copyright infringement in Title 17, Chapter 13, Section 1309, Subsection e, using The Clash's 'Koka Kola' as an example. The problem is that Coca-Cola do enforce their copyright, and severely. They once sued - and won - when a soft drinks manufacturer used similar lettering and colouring for a cola drink. Besides, The Clash's use of the altered name was for a song - hardly similar in appearance to a drink. By contrast, it can easily be argued that a game starring Gorbush Thrapweed and his battle with a ghost pirate LeUpChuck to find out the Secret of Funky Monkey Land (I bet I've just given someone out there an idea for a fan game) bears a substantial similarity in appearance to LEC's output.

You can argue with the wording of the law ‘til you're blue in the face - or red, green, amber, doesn't matter which – but believing you can evade prosecution for copyright infringement because of the wording of a statute is a pedantic argument that will get you nowhere. Insipid little-man against the odds courtroom dramas may have given the impression that the law is just a set of cleverly worded documents, with a key fact resting on the interpretation of a single sentence, but it’s not. People protect their copyrights, and if you pretend they don’t exist – or argue that it’s ‘only a fan game’ – you’re ignoring that fact. LEC aren't the only company to monitor their intellectual property interests rigidly, yet strangely they seem to be the ones getting the most flak for it.

The 'substantial similarity' test is one that dates back to the early days of patents - and is the same test used today - when new products had to be unique and not substantially similar to anything currently on the market. It's a test used to promote innovation and competition amongst manufacturers. As such, it's awkward at best to apply to fan games. However, if it has to be applied, as it would be if, as Yorick believes, it were a defence, then all fan games fail the test. In their appearance, in their places, characters and story elements the games use, in some cases in their attempted reproduction of LEC's patented SCUMM system, they are all substantially similar to the original LEC game that they seek to pay tribute to.

Yorick is wrong that "one can make a free game that is a 'copyright infringing article' and yet not commit the 'act of copyright infringement' because the game is free"; for the simple fact that the infringement has occurred - regardless of whether money is made from it. A fan game remains something "which has been copied from a design protected under this chapter"; Title 17, Chapter 13, Section 1309.

Unfortunately for LEC, they seem to be in a lose-lose situation as far as fan game makers are concerned. If they clamp down on fan games and post out so many cease-and-desist letters that their legal department runs out of stamps, then they get criticised. Usually it's in the informed manner of someone writing 'LucasArts sucks!' or 'They're destroying the community' or ‘TAHT SUX D00D!!!!111 OMG LOL!!!!!!’. Not true and not true, respectively. LEC are simply protecting their intellectual property, which they are absolutely entitled to do, regardless of whether you like it or not.

The company has repeatedly stated that they are looking at ways for fan games to be made legally, such as LucasFilm's comparatively lenient policy on Star Wars fan output. It's time to stop the short-lived petitions and angry forum posts and put things in perspective. LEC have the final word on the matter and articles like Yorick's and mine will have no effect on what that word will be. LEC, like any other multi-million dollar company, are simply taking legal actions that they are entitled to. Why not put your plans for a fan made Yoda Stories sequel to one side and make an original game? Better yet, uninstall Klik & Play and forget about ever making a sequel to the likes of Grim Fandango. You’ve got no legal right to, and there’s also very little point.

This article refers to A Lesson On Legal Anarchy, which was posted on AdventureDeveloper.