Fan games, remixes and derivative works

A tribute, or a copy?

Remy grew up playing a classic arcade space shooter and has an idea: a bonus level for Hyper Shards that remakes its first stage. Same enemy ships, traced pixel by pixel. Same music, remixed with new drums. "It's a tribute," Remy says. "And we changed loads of things."

Changing things does not make them ours. To see why, we need one more copyright idea: the derivative work.

What a derivative work is

• Sequels and spin-offsA new game with the same characters and world.
• Fan games and modsA new level, character or whole game built from someone else's game.
• RemixesA song rebuilt from parts of an existing song.
• Traced spritesArt drawn over, or copied from, another game's art, even with new colours.

A derivative work is a new work built on an existing one. It keeps some of the original's expression and changes, adds to or transforms it.

Copyright lets the owner decide who may copy, share and sell a work, and who may make new versions of it. The US Copyright Office says only the owner may prepare a new version or allow someone else to. Without consent, you can't claim someone else's work as yours, however much you change it. Even with permission, the new author owns only the new parts.

Loved, free, and still taken down

In August 2016 a fan released AM2R, a free remake of Nintendo's 1991 Game Boy game Metroid II. Players loved it. Within weeks, Nintendo sent DMCA takedown notices: legal requests, under a US law called the Digital Millennium Copyright Act, to remove material that infringes copyright. The downloads came down and development stopped.

Free and popular is not the same as allowed. Owners may also protect a series they plan to use: Nintendo released its own remake, Metroid: Samus Returns, in 2017.

Fan content policies

Some companies publish a fan content policy: rules for what fans may make with their games. Microsoft's Game Content Usage Rules are a real example. At the time of writing, they let fans use content from Microsoft's games in fan creations for personal, non-commercial use. Selling is not allowed (with a few exceptions, like ad money from videos). Fans must add a notice saying the work is not endorsed by Microsoft, with a link to the rules, and Microsoft can take the permission back at any time.

Parody and fair use: not a plan

Fair use is a US rule that sometimes allows using copyrighted work without permission, for things like criticism, news and parody. Courts weigh four factors: the purpose (is it new and different, or commercial?), the kind of work, how much and how important a part was taken, and the harm to the original's market. No amount is automatically safe.

Other countries have their own, often narrower, rules. Each case turns on its facts, usually after someone is sued. Fair use is a defence a lawyer argues, never a launch plan.

Ideas are free. The look is not

The US Copyright Office says copyright does not protect the idea for a game, its name, or its methods of play. Anyone may make a falling-block puzzle. The art, music, code, text and the particular way a game looks are protected.

In Tetris Holding v. Xio Interactive (US federal court, New Jersey, 2012), Xio's game Mino copied Tetris's pieces, playing field size, ghost pieces and colour changes. Xio said it copied only the rules. The judge called the visual likeness "akin to literal copying", and Tetris won.

Bolt says: Game names are a trademark question, not a copyright one. The Name, logo and trademarks lesson covers them.

Three safe paths

This is general information, not legal advice, and the safe paths are the same for every studio:

• Make it originalOur own characters, art, music and code. Inspired by a genre is fine. Copying a game's look is not.
• Get permission in writingA license from the owner that clearly covers selling. It is a contract, so a parent signs for the company, ideally after a lawyer reads it.
• Use licensed assetsPacks whose license allows commercial use, recorded on our credits and license list.

Bolt says: If a rights owner ever contacts the studio, a parent and a real lawyer handle the reply together. Next lesson: open-source code and free assets.