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.

Gabyush Chapwood February 10. 2008

Im Gabyush Chapwood, Admin site of Grog Games Argentina, we are making a fangame about a precuel of Monkey Island (how gaybrush arrives to the islands) We need your help about copyright issues..we dont want than Lucas art make us to close our proyect (to many fans working on it), so, please bring us a hand at this one, and you will have our friendship forever. I give to you our page and my mail
www.groggames.com.ar, manager@groggames.com.ar

thanks pals

Erwin_Br February 28. 2005

A lesson on legal anarchy is still available at www.adventuredevelopers.com, by the way.

Here: http://www.adventuredevelopers.com/featuredetail.php
?action=view&featureid=14&showpage=1

--Erwin

Mr Flibble June 25. 2004

What I have read has kinda disturbed me.

If you'll excuse me, I'm off to find an email address for LEC. Got some major kissing up to do.

Crazymatt June 19. 2002

suppose a company makes a really good game and plans on making a sequel but goes bankrupt or something. While no one can make the game, the fans are frustrated because the previous game left them hanging. can they still not make their own version of the sequel since no one else will?

BlackStar June 08. 2002

Ok, this is BlackStar from the IndyProject. Let's just say I'd like to compare this "Captain Mystery" To someone named Mods who behaves pretty, well, in-adult on our webboard. Fan games should live on, ppl, I know I've been saying that most games are crap, and they are IMO, but continue working on them. LEC just doesn't understand that these ppl like the games so much, they want to do more with it. Why send cease & desist letters? It will only get ppl upset, a lot of ppl. So what if it is copyrighted material, if that is copyrighted, everything is copyrighted, when I play my guitar and create a melody, chances are almost 100% that someone else also created that melody, this doesn't have to cause a problem, only when one of the two musicians WANTS it to be a problem. Seriously. I really don't understand why someone wrote such a BIG article just to kiss LEC's butt, are you creating a fan-game yourself and want LEC to like you? I mean, jeesh, if I didn't know better I'd say you're one of those pesky lawyers yourself man, trying to make us quit making 'parody' games or unofficial sequals. LEC should realize that the person woh are doing this are gaining a lot of experience in every aspect of adventure game creating. Someday, they will form big teams, create games of their own, and then will compete on the market with LEC, and if LEC continues to shut down fan-projects like this, I know whose games get sold and whose will not anymore :|
Another thing, you said LEC doesn't want anyone to sue them for having their fan-story taken. This is utter crap, because the person who would sue them has _nothing_ to hang on to, because the characters etc aren't his, if someone creates characters or backgrounds and LEC rips them, THEN the fan-game-person could sue them, and LEC would most definitely lose the case. What we're doing with FoA2 is something LEC never did, and will never do, we have had, and still have a lot of support of fans who want to see the True Atlantis, and if LEC decides to shut us down, we will remove all things we took from FoA1, and then change all that so that it is OUR work, we'll call the game Udoiana Raunes or something like that (sorry, couldn't think of a better name, no offense to two great adventuremakers in Germany :)
Release it as a parody game, and no-one can legally hurt us. One more thing before I quit this mega-gigantic post.
After reading this article, I reminded myself to comment on the demo-thingy. This could be true, but why doesn't LEC do anything with a game like "Night of The Hermit" etc etc.
I wish LEC were more like Sierra On-line, Sierra quit making adventure games, but doesn't blast fan games to oblivion (www.tierragames.com)
the ppl who used to work with Sierra support them. Oh, last thing, you said Monkey Island is (C) by LEC, yes, that's true, but are these right really 100% rightful? I tend to say no to that, because Ron Gilbert is the original designer, and he already left LEC. Also, I see that Zak2 and FoA2 are different than the Monkey Island games, Zak1 was a loooooong time ago, they don't do anything with that anymore, and Infernal Machine/Emperor's Tomb aren't sequels to FoA. Last comment. Fan-game-writers, keep your storyline on your team only, never let anything leak out. Before you know, your ideas get ripped, and you can't do anything about it (www.terminator3armageddon.com)(although I'm a big terminator fan, and really want to see part 3, some elements have been taken from the armageddon fan-script)
I'm glad if you've made it through here, this is some material for thinking.
Sincerely, BlackStar from The IndyProject.

Jayel April 25. 2002

About a fan coming up with the same idea for an upcoming official sequel and potentially taking a legal action toward LucasArts (I'm clueless when it comes to laws, so forgive me if I sound like an idiot):

I thought it was LucasArts' policy never to accept unsolicited materials, let alone read/play any of them. So don't they have that legal ground covered? Would an angry fan-game maker attack LucasArts for using "his idea" while LucasArts can claim that any similarities to the fan's creation was purely coincidental? (Or at worst, can't LucasArts counter-attack by claiming such fan creation was never authorized in the first place?)
Of course those who played that fan game would feel kinda ripped-off when they play the official sequel, but I think the odds of such incident happening is pretty poor...

So I think LucasArts should allow fan-made sequels, or at least give us a list of dead franchises that fans can make a fan-made sequel to.

Captain Mystery April 20. 2002

Cap'n Crew: The idea that fan games are just "the little guy just making some games for fun" is exactly the one that needs to stop. You ask why LEC, or the "big corporation", should care about a small-scale project. I'm not going to repeat myself, suffice to say that the legal impact and the pointlessness of fan games combine to provide enough argument why. Oh, and I'll write about fan art in a future article.

Wojo39: You say "'It's very interesting how the good 'ole cap'n can both bash fan games for being terrible and also hold them as dangerous for a "multi-million dollar corporation.'" Why? Fan games are terrible, without exception, and any kind of copyright infringement - regardless of how poorly done - is a danger to a corporation, should they gross one dollar or one million dollars a year. Your argument that people should interpret law on their own personal whims is simply unreasonable following the rule of law.

Jedi Guybrush: RemiO is correct in saying that the parody law is 'flakey' at best. I don't want to get into what many would consider a tedious argument about specific legal cases (simply email me if you really want to get into that, I specialise in tedium on a one-to-one level), but the number of parodies that have successfully been defended by the 'parody law' is split evenly with the number of parodies that have successfully been sued.

Dmnkly: Absolutely right, and I should have included the argument about precedent; that was oversight on my part.

Ryback: Yes, everyone needs to be reminded of the awful nature of fan games. As for fan art and fan fiction, I didn't want to mention them in this article. That's because I have separate articles for them, as I mentioned in my reply to Cap'n Crew, and I don't want to repeat myself every time.

B.B.J: That idea "just let them do it, it's not doing anyone any harm" is, as again I said to Cap'n Crew, not a valid argument.

MrManager April 18. 2002

"What is the point of clamping down on non profit fan games?" Go read paragraph five (not including the letter to Matt Shaw) and Dom's comment. It might seem unfair, but it makes sense.

B.B.J April 18. 2002

This article while tecnicly correct disregads the fact that LEC are being compleaty WIDE. What is the point of clamping down on non profit fan games? The fan game makers are only tring to entertain. The fact that it isnt as pollished is irrelivent. Just leave em allone and let them get on with it.

Ryback April 17. 2002

Who is the mysterious Captain, uh, Mystery? The only thing I could work out from the article is that a fan game must have bullied him a lot when he was little. Okay, fan games are terrible. Do we really need to be reminded every second sentence?

The bit about copyright infringements is good, but mostly irrelevant: nobody's going to argue that fan games are 100% legal. And I don't think he makes it clear *why* LucasArts choose to come down on fangames, rather than, say, fanfic, or websites using Monkey Island graphics.

I agree with Dominic here: LucasArts want to protect their trademarked properties ("Monkey Island", natch) and to do this, they have to chase down infractions when they occur. Trademarks, unlike copyright, can be weakened over time if the trademark holder allows their trademark to be freely used.

Proof? Try the Brother Island games, which use characters, locations and even graphics from the Monkey Island games, have been around five years, and yet are freely available from Mixnmojo. The Brother Island games, starring pirate adventurer Always Plywood and evil villain ZeBuck, don't violate any of LucasArts' trademarks, and so they've been left alone. (I think. Anyone know better, please let me know!)


Skyfox April 16. 2002

*slaps remi* Be polite! ;p *ahem* sorry...

Anyway, that Parody argument that has been mentioned. A prody wouldn't actually be monkey island would it? i'm sure most fans interested in moneky island fangames would not be content with a parody, it wouldn't be part of the mi universe. Spaceballs wasn't Star Wars was it?

I just think most fans are more concerned the real MI... not a joke homage.

(you ain't seen me, right?)

MrManager April 16. 2002

You do know that's linked just above the disclamer, right?

Dmnkly April 16. 2002

Another important angle that seems to have been overlooked is that of precedent. It may very well be that these fan games pose no serious threat to LEC's intellectual property, but my understanding (and somebody please correct me if I'm wrong) is that if large(r) corporations don't set the precedent of chasing down smaller infractions when they occur, it makes it harder, from a legal standpoint, for them to act against much more serious threats should they occur down the line.

Also, I need to throw some weight behind the Captain's Hollywood analogy. If LEC at some point in the future includes a plot element that's similar to one in a fan game, even if they were completely unaware of it, they open themselves to a multimillion dollar lawsuit. This is not fantasy. It happens all the time in Hollywood.

I've spent a good deal of time with people who are in the unfortunate position of having to protect their intellectual property. In almost all cases, my experience is that they really don't like to come down hard with cease and desist letters. In most cases, they have a great deal of admiration for those who create fan work... big designers were little designers once themselves. But the unfortunate fact is that there are a few yahoos out there who can cause them big, big trouble, and from a legal standpoint if they pick and choose, letting this fan game exist while squashing this one, it makes it MUCH harder for them to defend themselves when somebody with malicious intent comes along.

-Dom

MrManager April 16. 2002

Heh, the 'parody law' is something you don't want to shelter behind, as it's not very well defined. A good example is The Rutles, who got their pants sued off by Northern Songs (then owner of The Beatles back-catalogue) even though the project was backed by Beatles members, and obviously was a parody. If I remember correctly, The Rutles' label decided not to back them in court, which is a good proof of how flakey that law is.

Jedi Guybrush April 16. 2002

I think this article was very interesting an informative, but it forgot a very big area of this topic. Parodies. I

JBRAA April 16. 2002

1) You can, and really should, make whatever game or artwork you want to, even if it's based on any LucasArts game or Lucasfilm movie. Just create it.
Ok so you have created it. Now what?
Now it is a totally different thing if you choose to distribute your work. The main thing is if you compromise any intellectuall properties or trademarks in any way or not by distributing.

So yeah you are right, LucasArts can and should do whatever they feel they want to do about their stuff.

2) As long as 'Intellectuall properties' and origin/originality goes: You know your self if you have created something 'on your own' or if you have directly done the opposite.

All this is easy as long as you follow common sense and play nice.
Or what? you tell me.

wojo39 April 15. 2002

It's very interesting how the good 'ole cap'n can both bash fan games for being terrible and also hold them as dangerous for a "multi-million dollar corporation." The law is not the point. Simply because there is a law in the books doesn't make it right in all circumstances. There should still be people using their own judgment to determine if the spirit of a law is being carried out. People make fan games because they love these games and I don't believe they threaten Lucasart's profitability. And since I am a free thinking human being who is often a customer of Lucasarts, damn straight I'm going to say TAHT SUX D00D!!!!

Barber Dominique April 15. 2002

Wow...thats some information!

Cap'nCrew April 15. 2002

I dont dissagree with Captian Mystery. It is illegal, but that doesnt mean LucasArts isnt being an Bedwettingdoodiehead. Seriously, what does this big corporation care about the little guy just making some games for fun? Should fan art be banned?

MrManager April 15. 2002

You can look forward to more Captain Mystery articles in the near future.

Gabez April 15. 2002

WOW, what a great article! Very well written and "Captain Mystery" (hehe) has raised some very interesting points. It's always a challenge to argue the opposite to what everyone thinks, and CM has managed to do this in an entertaining yet informative manner. I look forward to reading more (?) articles by this annonomous writer.

Riffage April 15. 2002

...yeah

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