Copyright in fan-games?

[eternalwishess]

I think I've bugged pytom about this question many times before, but I've yet become reassured despite how many times I bring it up. So I would like to clarify.
I'm planning to make a VN that's pretty much an otome of Naruto but it's basically a fangame based on copyrighted material. It's not commercial, but free to play so... I don't know...am I allowed to make it?

[dramspringfeald]

Yes and no and it depends.

Where do you live?
Yes ~ In the States and Canada It counts as parody. thus Protected under the 1st amendment and what ever it is they use up in Canada. Your in the clear under that because the game is free.

Depends on if your a student or learning... put that in your intro or credits. Still good

No, it has porn of it and the US holders of the Intellectual property say no.

If your REALLY concerned just get a written mail from their legal team with the answer yes or no.

[PyTom]

I think I've bugged pytom about this question many times before, but I've yet become reassured despite how many times I bring it up. So I would like to clarify.
I'm planning to make a VN that's pretty much an otome of Naruto but it's basically a fangame based on copyrighted material. It's not commercial, but free to play so... I don't know...am I allowed to make it?

Dramspringfeald is wrong. It's not parody, unless you're mocking Naruto, in which case it may be parody.

It's fanfic. Fanfic is - by definition - a derivative work of the original. One of the things copyright controls is the ability to make derivative works. So all fanfic is illegal without the permission of the original copyright holder. At the same time, large fanfic archives exist publicly without anyone taking them down.

As a reminder, I Am Not A Lawyer.

The policy of the forum is that we take down copyright violations when we're notified of them by the copyright holder. We also use our judgement to take down pirated games - but at the same time, we can't be expected to know what fan-works are or aren't authorized, so we don't proactively take down fanwork.

[gekiganwing]

Every now and then, a free worksafe fan game gets a cease-and-desist notice. If you create fan labor, it's a risk. If you want to avoid this risk, then create a visual novel with your own characters and settings.

I'm planning to make a VN that's pretty much an otome of Naruto but it's basically a fangame based on copyrighted material. It's not commercial, but free to play...

There's a fan game simply called "Naruto Dating Sim" on Newgrounds that is very similar to what you described. It has simulation gameplay and (IMHO) decent writing.

[LateWhiteRabbit]

In the States and Canada It counts as parody. thus Protected under the 1st amendment and what ever it is they use up in Canada. Your in the clear under that because the game is free.

Dramspringfeald is wrong. It's not parody, unless you're mocking Naruto, in which case it may be parody.

It's fanfic. Fanfic is - by definition - a derivative work of the original. One of the things copyright controls is the ability to make derivative works. So all fanfic is illegal without the permission of the original copyright holder. At the same time, large fanfic archives exist publicly without anyone taking them down.

Also, I just want to note, that even if it WAS a parody, you still must prove that to be the case in a court of law. The copyright holder is still free to sue you, and it is your burden to prove your work counts as a parody and is not derivative. That means even if you WIN and it is determined to be a parody, you may still be out court fees and expenses.

A parody is, by definition:

an imitative work created to mock, comment on or trivialise an original work, its subject, author, style, or some other target, by means of satiric or ironic imitation.

That means if you are serious and faithful to the characters of the original work, you've screwed up and ventured into derivative territory. A parody exists to criticize an existing work. Parody protection under United States Copyright Law was designed to prevent original works from being on unassailable pedestals where no one could comment on them or criticize them. Parody protection was NOT designed to give you free reign to hi-jack and borrow other people's copyrighted work for your own personal stories.

As a reminder, I Am Not A Lawyer.

Ditto.

[KomiTsuku]

First off, I'm always support making your own story and staying out of those particularly messy situations. However, I will also state that I've never seen any artist ever get prosecuted for Naruto fanart (both display and for sale) in any of the conventions I have staffed. Is it wrong? Yes. Should you make your own creative work? Definitely. Are the odds that the property holder will go after you anything above almost non-existent? Nope.

[nyaatrap]

Some copyright holders officially permit fanfics: http://grev.g.hatena.ne.jp/keyword/fanfictionguidelines
For example, making fanfics from materials copyrighted by Dengeki group (who published most of light novels) are legal.
BTW, the company whose holds copyright on Naruto doesn't have any written statements on fanfics. neither permitted nor forbidden.

[Blane Doyle]

Are the odds that the property holder will go after you anything above almost non-existent? Nope.

Essentially.

Unless it is Disney (who notoriously once threatened DAY CARES for merely having their characters on their walls, but did not actively move on to sue them), they normally don't go after people who aren't actively trying to make money. Some creators even actively ENCOURAGE fanfiction (JK, Neil Gaiman, and CS Lewis have all spoken about being ok with it (the last of which CHALLENGED people to write Narnia fanfic because he'd like it), though JK's lawyers don't share her opinions when it comes to some things), and fanart is generally "oh cool, that's nice".

However, even though the chance is probably 1 in 10000000 that someone will get angry enough to take you down, it still exists so it is a good idea to keep that in mind. If you really really REALLY wanna make it and either do not in any way want to find a way to work it into an original work or can't, I say go for it. But at the same time, be aware that this risk still exists, however tiny. (Personally, I think if it is fanfic or art, it can be good practice or experience, while games... little uncertain here.)

Fanworks using material directly from what you are deriving from are in more of a moral grey area as well. Just be very careful.

[Ryue]

One thing regardlss of allowed or not: From what i have seen with fanfictions themselves and I guess it extnds to games is that you must put a discoaumer into it that you dont own it.

On that note the best way for you to be sure of the legal situation would be to get into contact with the japanese company owning the rights to naruto.
And dont get your hopes up too much for a positive answer from them.

I know that naruto games were made in the past with another game the byond engine (although not sure if those were not partially commercial as you could gain / use virtual coins in most) and those games had to be taken down from their website and servers.

[Taleweaver]

One thing regardlss of allowed or not: From what i have seen with fanfictions themselves and I guess it extnds to games is that you must put a discoaumer into it that you dont own it.

The disclaimer thing in fan fiction is entirely optional, unless the copyright holder demands one. It seems to have become common and usual to give one, but the existence of a disclaimer does not protect your from receiving a cease-and-desist, and going without a disclaimer does not automatically mean what you're doing is illegal.

Personally, I don't use disclaimers when writing fan-fiction, though I have used a disclaimer in the beginning of "Daemonophilia": "This is a work of FICTION. Any resemblance to real persons, living, dead or demonic, is purely coincidental."

[leon]

Are the odds that the property holder will go after you anything above almost non-existent? Nope.

Essentially.

Unless it is Disney (who notoriously once threatened DAY CARES for merely having their characters on their walls, but did not actively move on to sue them), they normally don't go after people who aren't actively trying to make money.

Well there was a case with LucasArts threatening to sue a group, making an unofficial sequel of Monkey Island. To make matters worse, they did it just before the release, after years of development, while knowing about it all along and not saying anything (it received too much media attention online and in magazines to not be noticed by LucasArts). LucasArts stepped down later however, after receiving a very negative feedback from the fans of the series, harshly condemning their action.

Personally, I don't use disclaimers when writing fan-fiction, though I have used a disclaimer in the beginning of "Daemonophilia": "This is a work of FICTION. Any resemblance to real persons, living, dead or demonic, is purely coincidental."

Smart move when writing about demons. Most of them are lawyers after all.

[LateWhiteRabbit]

Well there was a case with LucasArts threatening to sue a group, making an unofficial sequel of Monkey Island. To make matters worse, they did it just before the release, after years of development, while knowing about it all along and not saying anything (it received too much media attention online and in magazines to not be noticed by LucasArts). LucasArts stepped down later however, after receiving a very negative feedback from the fans of the series, harshly condemning their action.

That's when it usually happens - right as you are finishing the fan game. That's why it's super not worth it in my opinion, because you've now literally wasted months or years of your life on something you can never keep anything of, or show to anybody, without severe legal repercussions. And it IS because of the attention on your project that the company jumps in and slaps a you with a big fat "No!".

So here's the metric that shows how sad even contemplating a fan game is: The better and more amazing your fan game is, and the more people that know about it, the more likely the copyright holder is to stop you and require you to get rid of all your work. The more awful your fan game is, and with the fewest actual fans knowing about it, the more likely it is to survive notice by the copyright holder.

So with a fan game you have two options, essentially:
1) Do great work and see it destroyed.
2) Do poor work and see it ignored.

Far better to focus all that energy and time into something original of your own creation.

[nefferinthia]

As others have said before me, if your project is small you're most likely not going to get in trouble. Fanfiction and the like is a gray area of the law and most creators don't choose to sue you if they find out. Especially seeing as Naruto is anime and from Japan it's unlikely that the mangaka will notice. Fangames/fanfiction is a great way to first get into writing because a lot of things are already laid out for you but be sure to try out original fiction too!

[PyTom]

So with a fan game you have two options, essentially:
1) Do great work and see it destroyed.
2) Do poor work and see it ignored.

Isn't there a third option:

3) File the serial numbers off.

This seems to be getting more accepted nowadays. IIRC, 50 Shades of Gray started off as fanfiction, and was then taken down and rewritten to use original characters. I think that's what the Harmony visual novel team is doing, as well.

So, I guess, an idea would be to make a game as fanfiction, and then swap things out until it becomes original. It seems like an inefficient way of working, but maybe it's easier to do that than to come up with an original universe all at once.

[fleet]

Fourth option (already stated elsewhere) is to get permission from the copyright holder. If you're going to request permission, do it before you make any significant investment in time or money.