How can I make a fan game entirely legally?

Question

I would like to make a video game based on IP I do not own. I understand that there are many legal issues with this and it seems that most of the answers online are either “you can never do it” or “nobody will catch you”. I would like to know what is actually legal. For instance, I know I can’t sell it and it seems I likely can’t share it online. But if I build code for a fan game and play it myself or share it with friends, it feels to me like the equivalent of a child slapping Pikachu stickers on their personal copy of Candyland. Again, I’m not really interested in how likely or unlikely it is that I would receive a cease and desist. I’m just wondering if I would have the better argument in court.

Answer 1

17 U.S. Code § 106 - Exclusive rights in copyrighted works

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1)to reproduce the copyrighted work in copies or phonorecords;

(2)to prepare derivative works based upon the copyrighted work;

(3)to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4)in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5)in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6)in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

The law above is the united-states version, but other countries are very similar. By default, only the person owning the rights has the right to [allow to] copy the work or make derivative works. Fan games are pretty much always derivative.

Get a license.

The only way that is surefire to not get into trouble for making a fan product is to get a license for the use of the copyrighted material.

Some companies give (partial) licenses easily and freely, such as Wizards of the Coast offers with the OGL under the condition that you don't touch their "Corporate Identity" products such as Beholders or Displacer Beasts.

Other companies give licenses to projects retroactively by endorsing them. One example would be the Princes of Darkness mod for Crusader Kings III - which was easy because Paradox Entertainment gives a wide license to mod their game CK III and the rights to the World of Darkness are with Paradox.

Other copyright owners are litigious and shut down fan projects regularly. Nintendo has the nickname Nintendon't for a reason: they sue a lot to enforce their rights and their EULAs are super restrictive. Similarly, Disney is known to sue daycare facilities to have murals of their copyrighted characters removed based on copyright and trademark.

But... fair-use?

...is an affirmative defense. If you have to explain to someone how your work is supposed to be Fair Use, you already are in trouble. Some projects are fair use, others aren't. Many cases are fair use, and many more aren't. If that goes to court, such cases are a gamble, unless your use is quintessential fair use. Few are, and court cases are expensive.

A license is meant to and does prevent the problem to have to defend in the first place.

Answer 2

The other answers seem to miss the fact that you are in canada. Section 29.21 of Canada's Copyright Modernization Act provides an exception in that may apply to your case:

(1) It is not an infringement of copyright for an individual to use an existing work or other subject-matter or copy of one, which has been published or otherwise made available to the public, in the creation of a new work or other subject-matter in which copyright subsists and for the individual — or, with the individual’s authorization, a member of their household — to use the new work or other subject-matter or to authorize an intermediary to disseminate it, if

(a) the use of, or the authorization to disseminate, the new work or other subject-matter is done solely for non-commercial purposes;

(b) the source — and, if given in the source, the name of the author, performer, maker or broadcaster — of the existing work or other subject-matter or copy of it are mentioned, if it is reasonable in the circumstances to do so;

(c) the individual had reasonable grounds to believe that the existing work or other subject-matter or copy of it, as the case may be, was not infringing copyright; and

(d) the use of, or the authorization to disseminate, the new work or other subject-matter does not have a substantial adverse effect, financial or otherwise, on the exploitation or potential exploitation of the existing work or other subject-matter — or copy of it — or on an existing or potential market for it, including that the new work or other subject-matter is not a substitute for the existing one.

Essentially, if your gams is used "solely for non-commercial purposes," you attribute the source, the original work does not infringe anyone else's copyright (or at least, you reasonably believe that it does not), your game "does not have a substantial adverse effect, financial or otherwise, on the exploitation or potential exploitation of the existing work... — or copy of it — or on an existing or potential market for it," and your game "is not a substitute for the existing one," then you are most likely not infringing copyright in Canada.

The bold part is important; this exception is unique to Canada and is much broader than "fair use" and "fair dealing" in other countries. Your game will be infringing outside Canada, so unless you follow what one of the other answers says, it will need to stay in Canada. You said you want to "build code for a fan game and play it [your]self or share it with friends"; if you and your friends are all in Canada, and none of you take or send copies outside the country (strictly speaking, this includes not travelling internationally with devices that have the game installed), this should not affect your use case.

If you have more specific questions, it would be best to consult an attorney. If you plan to share your game in a way that allows the general public to access it, then you should definitely ask a lawyer.

Answer 3

1. Wait for copyright to expire.

Life of author+70 years, or 95 years from publication, for works authored by a company (and not a group of individuals). Frozen, from Disney, falls under the latter category.

Even so, you might run into trademark troubles. Mickey Mouse (the Steamboat Willy version) is public domain but Mickey Mouse is a trademark of Disney in around 70+ categories. Their lawyers can come after you for that.

2. Make the fan art/fiction/game but never distribute it (until #1 comes into effect, at least).

You can make your fan game and it is entirely legal for you to do so. Unless you distribute copies (including a full transfer the single copy you made), you do not violate copyright.

There are some who say you can distribute fan art and it's legal so long you do not profit from it. Doing so is not "entirely legal" as the question demands.

Some companies, like Games Workshop, went after fan-art/fiction/videos and enforced their copyright to the point of suffering community backlash.

There is a fear in these big companies that if they don't enforce copyright thoroughly, courts might see this as a dilution of their power to do so.

3. Make the product but enact changes to go around to skirt around the copyright (by a wide berth).

"Fifty Shades of Gray" was originally a "Twilight" fanfiction. The author then remove all references and allusions to the vampire novels, and marketed it as an original work.

Citing a recent example, Palworld is very similar to Pokemon. But it doesn't fail the informal "squint test"

In layman’s terms, a good way to tell if a copy should be allowed is to ask whether it fails the ‘squint test’: If you need to squint to see the difference between two designs, then one is an infringing copy of the other.”[ref].

Game mechanics cannot be copyrighted. Only music, graphics, character design, text, lore, and so on.

You can make a game that plays similar to pokemon. Back to Palworld, one thing pundits pointed that made the games different was the violence.

Unlike Pokémon, Palworld is a more violent game where players can wield a variety of weapons like machine guns, rocket launchers and spears. Its gameplay includes brutal options like being able to butcher pals and using pals as live shields in combat.[ref]

Since this is recent news (at the time of this posting), it still remains to be seen if some legal action will be attempted by the holders of the Pokemon franchise.

4. Buy a license.

Easier said and paid than done. The copyright owner might outright refuse.

5. You might get sued/receive a DMCA takedown, get Copyright Struck, nonetheless. Even if you did #4.

Unless you bought a license, there's nothing stopping the (assumed) bigger company from coming after you. They might file a lawsuit that will end in a nothingburger and force you to spend legal fees to defend yourself.

At least, expect a C&D letter. Sending a threatening letter costs next to nothing to them. (disclosure: I received a couple in my life). The C&D letter might be just empty threats.

Copyright bullying is the younger sister to Trademark and Patent bullying.

In one case, a YouTube author got a copyright strike from a song they licensed from the OG author after said song ended up in a big label portfolio. Or even with original song, due to alleged algorithm mistakes.

Answer 4

How can I make a fan game entirely legally?

By asking the IP's owner for permission to make the game.

It's very common for videogame companies to do that.