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:Nothing personal (Score:3, Interesting)
Re:Try having an original idea (Score:2, Interesting)
Yes it is a copyright violation.
Having actually studied copyright law, I have to say it's not so clear as you make it out to be.
It's a copyright violation because he hasn't simply copied the game concept, but has largely copied the art and the name too.
See, now here is an interesting question. How close does a copy have to be to be a copy?
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.
That's questionable and I think in court you would have a jury question. Is "what pacman is and is about" really about what color he is? Maybe what pacman is about is a circle with a wedge-shaped mouth that eats dots, regardless of color? Maybe what pacman is about is something that dodges ghosts and eats small things in a maze, regardless of what those things are? (not to mention, the name ("Green Gobbler" vs. "Super-pac") is completely irrelevant to a copyright claim because that's a trademark issue)
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.
Well, you had copied text from the original product. That's what the class names are. I don't know how "fundamental" that is if the primary value of the product is the gameplay, though.
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.
"story" is typically not held to be the fundamental IP protected by copyright. Copyright protects specific images and sequences of words, not the underlying ideas behind them. You can publish an identical story written using completely different words and potentially not be in violation of copyright. In your example, it doesn't sound like you really changed much at all, like characters or story; you just changed the words attached to certain things. How is that different from changing one yellow circle to a different yellow circle?
You may not think it should be a copyright violation, but you're completely wrong to suggest that it is not.
Again, I think the issues are more complicated than you think they are.
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.
Yeah, you might want to take your own advice.
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.
I think he does have a leg to stand on. Remember when Apple sued Microsoft for copying the "look and feel" of Mac OS into MS Windows?? The judge said "look and feel" was not copyrightable and threw the whole thing out. If the
Re:trademark not copyright (Score:4, Interesting)
It's a fine line. Two people draw a picture of the Grand Canyon. One starts by taking a famous photograph and painting it. The other goes to where that photo was taken. At what point is copyright violated? Is knowing that the picture was taken from that point a violation of copyright? Probably not. Is painting the actual photo? Probably. A person paints a picture of Mickey Mouse based collectively on hundreds of images of Mickey Mouse and does so in a style that differs substantively from the original. Is that a copyright violation? It starts to get pretty fuzzy. (It's definitely a trademark violation, though.) Is copying the look of something as trivial as Pac-Man characters a violation? Maybe.
Now given that something a simple as a Pac-Man character would almost inherently look fairly similar to the original, that does raise the question of whether the original work contains sufficient originality to be protectable by copyright in the first place. I don't have an opinion on that, but I wouldn't want to be the one trying to use that as my defense. My guess is that the work is protectable by copyright and that this derivative work is not of a sufficiently transformative nature and looks way too similar to the original, and as such represents an infringing unauthorized derivative work. That said, IANAL, and the original poster should really contact someone who is instead of posting on Slashdot.
Re:Try having an original idea (Score:3, Interesting)
Absolutely, 100% wrong on both counts.
Regarding the copyright of characters themselves, see numerous opinions, including Warner Bros. v. Am. Broadcasting Cos., 720 F.2d 231 (2d Cir. 1983). [google.com]
Accordingly, fan fiction often does infringe copyrights. However, no one sues them because it's just a dumb business move. You're not going to make any money off shallow-pocketed fifteen-year olds, you're not going to stop all of them, you're not going to scare them into stopping since they don't believe it's against the law, it's a tougher case to win than "here's proof she downloaded my song, therefore she infringed" and necessarily will cost more in legal fees to stop, and it's harmful to the fanbase to try and stop them.
Re:Knee-jerking != making an informed argument (Score:4, Interesting)
One look at the screenshots shows it's clearly copied.
He may not have ripped the original ROM files or even created pixel perfect duplicates, but it's quite obvious the graphics were intended to look identical to the arcade's.
You may remember that copyright law predates the age of perfect digital copies. Hand-made copies violate copyright laws just as well.