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You take the music out of your game, then YOU sue the person who sold you the music. That is why I'm constantly stressing contracts. Most of them include a clause to the effect of - "I swear this asset is my own original creation". You can show the notarized contract to the judge and get the case against you dismissed, since you are just as much a victim as the copyright holder the person you paid ripped off. The music still has to be removed from all copies of your game, but you should avoid having to pay monetary damages.

If you don't have a contract? It makes it hard to prove you didn't know the work was stolen. The thief you paid can say you knew all along the music was stolen and didn't care. Or the more likely scenario is he will simply disappear, leaving you holding the bag. You'll be left to feebly tell the courts that a bad man did it, but you don't know his name and his email and Paypal account have been cancelled. Your defense then essentially becomes, "The Bogeyman did it." You'll be responsible for all monetary damages at that point - EVEN IF THE COURT BELIEVES YOU. Because your actions will be deemed negligent due to not acting with due caution in your business dealings.

In short, make sure the people you do business with aren't criminals.

Standard Disclaimer: None of the advice in this post is intended as legal counsel.

I'm loving this discussion since many people are asking questions floating around in my mind. Thanks again, everyone.

I'm sincerely considering forgoing the screenshots now and simply writing something original. Maybe I'll design the game to occur in fewer locations and toss a few bucks someone's way for some backdrops and profile sketches. If I end up using this game as a portfolio piece it might be nice to say that I commissioned the art based on my requested specifications.

p.s., no word back yet from Blizzard Legal but I'll post their response here when I hear from 'em.

Thankfully most of the sound effects I've come across come in either:

Creative Commons 0 (Public Domain)... Hooray!
Creative Commons Attribution... can use in commercial, just stick name somewhere in credits
Creative Commons Sampling+ (deprecated) ... can load the file in Audacity for some quick editing, then can use commercially with credits

Sorta on this subject: Let's say you borrow a trademark of something (properly cited) and some credited resources, but all content besides that is original, and yours. Meaning original characters, plot, art, etc... But say you use an mp3 from something else.

If you receive a C&D, then a company cannot do anything if you simply remove references to their product and continue with your project, correct? They cannot C&D your project itself, but only references to their product?

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To comply with a C&D you only have to remove their copyrighted work. However, they can still sue you for copyright infringement.

You can't "borrow" a trademark. You CANNOT use anything you didn't create or pay for. It is THAT simple. It doesn't matter if it is a sound effect, an mp3, a logo, or a single sprite - it is illegal to use anything without permission.


AxemRed is right. Keep in mind that companies send C&D letters to be NICE. They can still choose to take you to court if they wish. They don't even HAVE to send you a C&D - technically the first time they contact you can be with a court order bringing suit against you. And if the court deems the copyrighted material is a significant part of your project, they CAN shut down your entire project. You should also know that most companies do not bother with C&D letters for parts and pieces of projects. Any C&D letter you get will likely apply to the entire project, because the company won't feel like digging through the entire thing to point out every little infraction - they'll just assume if you have one or two infractions you have more they don't know about.

It sounds like you are dangerously close to saying you are planning on using copyrighted material illegally and are counting on not being noticed or just getting a slap on the wrist with a C&D.

Everyone keeps thinking their project is special or they get an exception from the law or something. You don't get special privileges to only break the law a little bit.

Follow this handy checklist for your game assets:
1) Did you make the asset yourself? -> Legal
2) Did you pay someone else to make the asset for you? -> Legal
3) Is the asset in the public domain or have a license that allows its use in commercial projects? -> Legal
4) Do you have written permission from the copyright holder to use the asset in your game? -> Legal

EVERYTHING ELSE IS ILLEGAL!

Standard Disclaimer: (Nothing in this post is meant as legal counsel.)

This is a very sobering conversation. Shame that my labour of love won't be seen as such by the IP owners.

Well, I find this both frustrating and liberating. I think I should kiss my fanfic idea goodbye, but that just means I'm no longer constrained by other people's works. Assuming I keep going full steam ahead on my project I think I will toss a few bucks to one of the very talented visual artists that frequent these forums.

I need to mention that an IP lawsuit not as black and white as LateWhiteRabbit makes it sound. If you have an issue, you need to go to an IP attorney. I'm now scared this entire topic could be one massive lawsuit waiting to happen given the large amount of unlicensed legal advice given, so I'm writing this to just say people should seek a professional attorney. Sharing legal advice on informal websites like Lemmasoft for your particular situation is risky and may actually set you up for a real lawsuit if you give detrimental information. You need to be an attorney to understand the differences between the laws of different nations/jurisdictional issues/and the mechanics of filing a claim/gathering evidence. Mere basic knowledge of substantive copyright law is not going to determine whether or not you win or lose any IP litigation, as there will be jurisdictional, evidential, procedural, constitutional, and other issues that arise depending on your situation.

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I'm simplifying, yes, but just to get the point across that using someone else's IP is in no way smart behavior. Like you say, you need an IP lawyer to navigate all the laws and rules, so you need to avoid IP that is not your own.


See the disclaimers I've been putting on all my posts in this thread for that very reason. And honestly, you can't go wrong with my advice - "Don't use other people's stuff." That "legal" (that is not legal counsel) advice is the equivalent of telling someone not to speed or shoot someone. Not really detrimental information.

But Samu-kun is right that if you are getting your legal advice off a website forum you are going to get messed up.

So avoid having to hire an IP lawyer folks - don't use copyrighted assets.

This has got to be the shortest post that LWR has ever written. I am taking a screenshot

But yeah, you don't want to mess around with IP. In order to maintain their IP rights companies virtually HAVE to sue you or issue a cease and desist order. At least that is how it is in America, but don't think that American companies don't have clout overseas either. Just because you don't live in the US doesn't mean they can't get you.

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The problem with this is that, in general, talking with a lawyer for any amount of time is very likely out of the price range of most people on this forum. Certainly, it's distasteful to believe that someone making a free game should be required to spend money out of their own pocket to determine if what they're doing is legal or not.

Thankfully, copyright and trademark law both have fairly easy-to-understand safe harbors, that everyone should know about as part of their basic civics education. For copyright, LWR gave a reasonable description of them above - make things yourself, or get permission from the person who made them to use them.

Trademark is similar - you can use a trademark in your game, but you can't use it to promote your game. (For example, it's fine to have someone drink a Coke in your game, but you can't call your game The Pause that Refreshes.)

Now, both copyright and trademark law are absurdly complex. They cover a lot of things outside of the narrow scope covered here - for example, in the US the fair use doctrine lets you use things without the copyright holder's permission under specific circumstances. (Those circumstances would rarely apply to game-making, but might apply to things like writing a Wikipedia article.)

Samu is right about one thing - you don't really want to get legal information from a forum like this. In this post, I could be trying to mislead you, or simply mistaken. Instead, it's your responsibility to go out and learn about this from reliable sources, like copyright.gov, chilling effects and the EFF. But realize that this is something that normal people can understand with a little bit of effort - at least in the broad outlines - and it's your responsibility as a person to do so.

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If you are still in an educational institution, you can try finding either a hard copy or electronic version of this encyclopedia for a look at US copyright law.
Patry on Copyright
Copyright: 2007-2012
ISBN-13: 9780314976260

First, if you're looking at the hard copies, it's a series of encyclopedias with more information that you would possibly need. What you want is the book containing Chapter 10. (The Fair Use Doctrine) It has summaries of some common fair use exceptions, including the parodies on South Park and Family Guy. (Which the writer is apparently not a fan of)

What you're looking for is most likely under
sect. 10.13-10.21 (The Fair Use Doctrine)
sect. 10.60-10.68 (Internet use, criticism and comment)
sect. 10.87-10.99 (Parody)
sect. 10.100 (Appropriation art)

Also, you can try looking at the following cases
Campbell v. Acuff-Rose Music, Inc.
Parodies do not violate copyright law. What constitutes a parody
Suntrust Bank v. Houghton Mifflin Co.
A more recent application of the parody exception
Warner Bros. and J. K. Rowling vs. RDR Books
A case where JK Rowling sued to stop the publishing of an unofficial Harry Potter encyclopedia. A (very) complicated case.
Making a reference book of an original work may be legal, so long as the content of the reference book does not excessively lift from the original work. The writer of the unofficial encyclopedia lost because he copied too much of Rowling's statements and her official reference books. The fact it was commercial also led to him losing the case.
Wikipedia article about substantial similarity

A recent (2009) law review article about the legal status of fan fiction (Warning: this is just an article and does not spell out actual law)
ARTICLE: THE HARRY POTTER LEXICON AND THE WORLD OF FANDOM: FAN FICTION, OUTSIDER WORKS, AND COPYRIGHT
70 U. Pitt. L. Rev. 387
http://papers.ssrn.com/sol3/papers.cfm? ... id=1274293

Also, as far as I can find, there has so far not been a lawsuit filed over a fan work, so there's really no case law on it. Jury's still probably out, and I feel like it'd really depend on what the fan fic looks like.

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