Avoiding DMCA Woes As an Indy Game Developer? 494
androidstevep writes "I was just on the receiving end of DMCA takedown notice for my game in Android Market, 'Super Pac.' Namco Bandai have filed the notice with Google, claiming breach of copyright of their game 'Pac-Man.' Although my version is obviously inspired by the original arcade game, no original artwork or sound has been copied. The problem from my point of view is that the DMCA notice is not clear where or why the breach is alleged. My guess is that maybe the name is too similar, although I did a trademark search for 'Super Pac' before release and came up with nothing. Furthermore, Google have disabled my access to this app, presumably as required by the DMCA, so I am unable to even make whatever modifications would be required. As a part-time developer with limited means (i.e. can't afford expensive lawyers), but willing to make best efforts to avoid legal issues, how does one negotiate what seems to be a difficult minefield of trademarks, copyrights and DMCA? Does anyone have tips in this area?"
Re:Try having an original idea (Score:3, Informative)
Probably because Google actually licensed Namco's game, unlike this douchebag who just stole it.
As usual... (Score:3, Informative)
Speaking strictly as a 'neither a lawyer nor your lawyer' though, Bandai's DMCA notice sounds like bullshit. Your game may well amount to trademark infringement or even step on some kind of insane patent(apparatus and methods for inducing gamer to care about motile pie-chart); but DMCA notices deal only with copyright violations. Not trademarks, not patents, not defamation, not libel, etc.
Unless your game contains sprites/sounds etc. either ripped directly or falling into the category of "derivative work", a DMCA notice is just the cheapest way to get you offline, not a legally correct approach. In fact, not that this ever happens, Bandai may actually have exposed themselves to some sort of liability by bad-faith filing of one, not that that helps you much. Of course, Bandai could likely crush you like a bug with actual lawyers, this is just a low-cost first shot.
Re:Try having an original idea (Score:3, Informative)
Not a lawyer... (Score:4, Informative)
Now examine your situation. First, did you commit their copyright or not? Copying the game play is most likely copyright infringement. If you did commit copyright infringement, then the best you can do is hope you don't get sued. If you didn't commit copyright infringement, the situation is roughly the same unless you have lots of money to defend yourself. One iron rule: Don't talk to them without a lawyer. Anything you say will be used against you. If you can't afford a lawyer, don't talk to them unless you have to. And if you have to, get a lawyer whether you can afford it or not.
Re:Try having an original idea (Score:5, Informative)
There is a copyright violation. Look at the screenshot, everything has been designed very closely to Pac-Man and clearly falls under the derivative work rules.
Hiring an attorney may be cheaper than you think (Score:5, Informative)
(Note: I am an IP attorney, but I am not your IP attorney. This is not legal advice.)
You should consult a competent IP attorney in your jurisdiction. Many attorneys offer free consultations, sliding fee scales, fixed-fee arrangements, and many also do outright pro bono work. Many attorneys, especially IP attorneys, are often nerds themselves and are likely to be sympathetic and willing to work with you to develop a custom fee arrangement. In this economy a lot of attorneys have free time and are going to be more willing to work for cheap or free in the hopes of developing better paying business in the future. Don't be afraid to ask directly about costs.
All that said, you definitely don't want to ignore this. The Pac-Man copyrights are well-established and well-defended in court [google.com]. You really should consult an attorney.
trademark not copyright (Score:5, Informative)
SuperPacman is a trademark, you cannot copyright a name. I think a court would rule that "super pac" is too close to the original trademark. However, copying the "look and feel" of a game using different code and different art, is not copyright infringement. There are multiple precedents for this. If he had borrowed either code or art it would be considered a derivative work under copyright. Its software patents that are used when software preforms the same function as software you wrote first, but I doubt pacman was patented.
This wasn't legal advice, I'm just regurgitating the sage advice of past /.ers who said TWAL.
Re:Try having an original idea (Score:5, Informative)
Yes it is a copyright violation.
It's a copyright violation because he hasn't simply copied the game concept, but has largely copied the art and the name too. It would be allowed for example to create a Pacman clone, make the Pacman character green, maybe give him some red eyes or something, replace the power pills with energy drinks and replace the ghosts with aliens, then call the game "Green Gobbler" or whatever- this wouldn't be a copyright violation, but to outright copy what pacman is and is about- a yellow circle with a mouth chasing ghosts and then also putting Pac in the name absolutely is a blatant copyright violation.
I speak from experience having research it extensively before after having been in precisely this situation. Many many years ago, I worked on a clone of Teamfortress and after Valve aquired it and the IP they requested a shutdown of our mod- they had every right to do this because we hadn't simply copied the Fortress section of the name, but we had copied the class names and so forth too even though the artwork was original- we had copied the fundamental IP. We could get round this by simply changing some class names, and changing the mod name to remove Fortress, this was enough to satisfy Valve themselves even, but the fundamental point is if you're going to copy not just the concept, but the fundamental IP as well (i.e. characters, story, that sort of thing) then yes, it absolutely is a copyright violation.
You may not think it should be a copyright violation, but you're completely wrong to suggest that it is not. This is why people usually put IANAL in there post (IANAL btw!) because they know full well they're simply stating what they think may be true, but which possibly is not. Your advice is dangerous because you're telling him to fight against legal notice which he almost certainly has no chance of succeeding with and if he does take it all the way to court, it would probably destroy him as he really does not have a leg to stand on.
So to the person asking the original question in the summary- if you want to know what you did wrong theres your answer. The worst thing you can do is fight this, because legally, you seem to be completely in the wrong, and will hence almost certainly lose. There is no DCMA abuse here, beyond the fact that the DMCA is inherently abusive in it's very existence.
Re:trademark not copyright (Score:5, Informative)
"However, copying the "look and feel" of a game using different code and different art, is not copyright infringement."
No, this is completely wrong. If you copy the characters- i.e. Pacman, then it IS copyright infringement, that is Namco's IP.
What you're thinking of is gameplay- that's something you can copy. You absolutely can create a game where you go round a maze collecting things whilst being chased by enemies, that's no problem, but copying the fundamental IP such as the characters or the storyline is a problem. That's why this is copyright infringement.
Re:trademark not copyright (Score:5, Informative)
As the Wikipedians would say, [citation needed].
If they've copied things like graphics from the original game, then that is almost certainly a violation of copyright.
If they have only copied the ideas, but used original artwork etc., then that is an entirely different situation. For example, storylines are not inherently subject to copyright, which is lucky for every "boy meets girl, boy loses girl, boy gets girl" romance author.
Re:Try having an original idea (Score:4, Informative)
Why isn't it a copyright violation. He used their characters, their name (SuperPacman came out in 1982), and mechanic. This about as much of a derivative work as you get.
It's not a copyright violation to copy things that copyrights don't cover. Copyrights don't cover the characters. Fan fiction is perfectly legal, for example. Copyrights don't cover the name (that's a trademark matter). Copyrights certainly don't cover the mechanic. You can make a game that plays *identically* if all the graphics, text, and sounds are original, and no code is copied. It's not about how derivative it is, it's about whether the things it allegedly copies are even under copyright.
Re:trademark not copyright (Score:2, Informative)
The distinction being missed here is what "copying art" means. It doesn't just mean not copying the actual files, it means not using the same art, regardless of who drew it. I couldn't go draw an exact picture of Mickey Mouse but call him something else and claim it be original just because I didn't break into Disney and steal their cells.
Re:Nothing personal (Score:5, Informative)
I also noticed on this page that more than once he refers to the character in the game as "pacman", such as his bugfix and release messages:
"Pacman now moves faster (from V1.05). In later levels, some of the ghosts may move faster then Pacman."
and
"Super Pac V1.05 released - Increased speed of Pacman"
The problem here is that there is exactly zero artistic expression in this game, it is purely cloning over the complete look and feel and characters and gameplay. Not all of that is copyright-able, but the total of the circumstances makes it clear that this is what copyright law is supposed to protect against. He only needed to make the maps and characters somewhat different to avoid this issue, but instead chose to be 100% "accurate" to the original, even down to the character name. Well, mission accomplished.
Re:Try having an original idea (Score:4, Informative)
Actually characters are copyrightable under certain circumstances.
As indicated above, a character can exist merely by its textual description of that character. Who he or she is, what he or she looks like, the manner of behavior and other such characteristics can all be described, in writing, by the author. As such, the character may be protected under copyright law as part of the text of that work (see discussion below). Since one of the rights of copyright is the right to make derivative works based on the work, if there is such protection, the author (or whoever is the proprietor of the rights in and to the text including the character) retains the right to make further use of that character in such derivative works.
However, the character as described textually has to be protectable by copyright, meaning that it must have sufficient originality to satisfy the requirements of the statute. If the character as described is merely a "stock" character, there may not be sufficient originality to make the character protectable.
http://www.ivanhoffman.com/characters.html [ivanhoffman.com]
The character has to have some depth (not stock soldier number 3 etc)
but characters are very much copyrightable as are fictional worlds.
If you don't think the fictional worlds are then try commercially publishing a book based in the Star Trek or Star Wars universe and see how long it takes to get sued.
Fanfic sometimes simply gets ignored because many authors started out themselves writing fan fiction and they don't want to stop it.
Some authors hate it with a passion.
The rules of a game cannot be copied.
You can make a game where a character goes around eating dots and being chased by ghosts which is identical to packman in every way as long as your character doesn't look too much like the origional though it might depend on whether the pacman character is significant enough to fall under copyright given that it's simply a circle with a wedge cut out.
but if you closely copy the art(like drawing the character yourself but making it almost identical), characters, story or world(assuming it's significant enough to be covered by copyright and I'd guess that the simple maze in pacman probably wouldn't be enough) then you can fall foul of copyright.
And as for names avoid anything that is too close to the origional or contains part of the origionals name.