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?"
Try having an original idea (Score:5, Insightful)
"Instructions: Based on the classic arcade game Pac-Man, the aim is to eat all the pills in the maze, while avoiding the four ghosts. There are also power-pills available in each corner which temporarily turn the ghosts blue, and more importantly, edible! Bonuses are awarded for eating ghosts. Fruit bonuses also appear and can be eaten for additional points."
Of course you got an infringement notice.
Re:Try having an original idea (Score:5, Insightful)
This is a pretty blatant abuse of the DMCA unless the OP used some of their code or images to do it. The proper thing is to file the paperwork with Google affirming that there is no copyright violation.
If the OP has the funds to do it, he could also file suit against Namco Bandai for violating the requirements under the DMCA for filing a take down notice. There is a defined situation for cases where the party filing the takedown notice does so in bad faith that allows for damages. Personally, I wouldn't bother unless I was making a living on the product as it's tough to actually get enough money for the violation to make it worthwhile.
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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: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:trademark not copyright (Score:5, Insightful)
There's obviously going to be a judgment call at some point.
Are stories about boy wizard orphans all protected by copyright? Of course not.
But if you make a story about Larry Potter and his trip to Gogworts from platform 8 and 3/4s, you should expect to get sued as a copyright infringer.
In this case, one example of problematic content that would, I think, be infringing, is the maze itself (shown on the developer page). There are almost an infinite number of ways to structure a maze but at a glance, it appears he has ripped off the exact layout of one or more of the Pac-Man mazes. (Pac-Man and the ghosts seem nearly identical, too; was the artwork literally copied? It doesn't need to be. If you sit down and sketch a mouse that is "inspired by" Mickey Mouse, it doesn't have to be a perfect copy for it to be infringing.)
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But if you make a story about Larry Potter and his trip to Gogworts from platform 8 and 3/4s, you should expect to get sued as a copyright infringer.
On which ground ? Plagiarism is not copyright infringement. I had this interesting read from Stross on fanfiction : http://www.antipope.org/charlie/blog-static/2010/05/faq-fanfic.html [antipope.org] :
And here is what this serious guy who has lawyers says
If you want to sell fanfic based on my work, you have three options:
...
1. File off the serial numbers, rename the characters, and try to sell it as All Your Own Work. This is, believe it or not, neither illegal nor immoral and I have no problem with it as long as you don't try to market it on the back of my name and reputation.
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But this example isn't plagiarism, which would be legal in this instance. This particular case is only like "plagiarism" if you consider looking at the book, and then copying virtually every single word in it, but it is now in your handwriting.
While not a legal standard per se, one of the old standbys to prevent being accused of copyright infringement is to make sure your version is different in three significant ways. If the guy didn't use the word PAC anywhere, made the characters different colors and l
Maybe the pac-man icon is protected by TM (Score:3)
I did a trademark search for PAC-MAN at http://tess2.uspto.gov/bin/gate.exe [uspto.gov] and I'm unable to find a non-word mark match. Does that mean I'm incompetent in searching or does the "namco bandai"-company really only have word marks?
Re:trademark not copyright (Score:5, Funny)
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.
I think you should have went with a car analogy... honestly, how many slashdotters will understand the analogy you used?
Re:trademark not copyright (Score:5, Funny)
Oh, I think plenty of Slashdotters get the first two parts of the analogy. It's that final step that always seems just a little too elusive...
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Oh, I think plenty of Slashdotters get the first two parts of the analogy. It's that final step that always seems just a little too elusive...
LoL, I stand corrected!!! :-)
(did I actually just type LoL in a post?)
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.
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So, a painting of a trademarked object, say a Campbell's Soup can, would be a violation?
A violation of what? Trademark law or copyright law? You can generally depict a trademarked object in an art piece without running afoul of trademark law. As for copyright, sure the artwork of the can itself is copy protected...
Campbells could absolutely have launched a suit based on copyright. But unlike trademark which they have some obligations to defend, copyright enforcement is discretionary.
As it happens, apparentl
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Mickey Mouse is a trademark, not copyrightable. Stories are copyrightable. So are works of art, so a specific image of Mickey Mouse could be copyrighted, but not your description which clearly describes a trademark (but for superfluous mentions of his pals).
Nope, you'd be wrong there. Characters can be copyrighted, provided they're sufficiently developed. As Judge Hand said, "It follows that the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for making them too indistinct."
Back in the day, Neil Gaiman sued for copyright infringement by McFarlane of his Spawn character... From that decision:
McFarlane argues that even as dolled up by the penciler, the inker, and the colorist, Cogliostro is too commonplace to be copyrightable. Gaiman could not copyright a character described merely as an unexpectedly knowledgeable old wino, that is true; but that is not his claim. He claims to be the joint owner of the copyright on a character that has a specific name and a specific appearance. Cogliostro’s age, obviously phony title (“Count”), what he knows and says,his name, and his faintly Mosaic facial features combine to create a distinctive character. No more is required for a character copyright. DC Comics Inc. v. Reel Fantasy, Inc., 696 F.2d 24, 25, 28 (2d Cir. 1982) (Batman, though assumed rather than actually determined to be copyrightable); Walt Disney Productions v. Air Pirates, 581 F.2d 751, 753-55 (9th Cir. 1978) (Mickey Mouse et al.); Detective Comics v. Bruns Publications, 111 F.2d 432, 433-34 (2d Cir. 1940) (Superman); Fleischer Studios, Inc. v. Ralph A. Freundlich, Inc., supra, 73 F.2d at 278 (Betty Boop).
(emphasis added). Note the string cite, too - the fictional characters of Batman, Mickey Mouse, Superman, and Bett
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How about Minesweeper?
http://www.youtube.com/watch?v=LHY8NKj3RKs [youtube.com]
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: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.
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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 becaus
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.
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Maybe he used a clean room design [wikipedia.org].
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Doesn't help when the actual appearance of characters is so similar. Remember: a significant fraction of the copyright laws were written specifically to protect Mickey Mouse from lookalikes. You can't just make a pacman game with characters that look just like pacman characters, even with a clean-room design. It will still be a copyright violation.
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.
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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.
No, that's not at all what the judgment was. Instead, it was: "look, you dumb****s, you signed a contract granting Microsoft the rights to do this!" Copyright of look and feel has been upheld in multiple cases.
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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.
No, that's not at all what the judgment was. Instead, it was: "look, you dumb****s, you signed a contract granting Microsoft the rights to do this!" Copyright of look and feel has been upheld in multiple cases.
I was just about to say this. Yes, correct... The judge did find some 170+ elements that Microsoft did copy and would have been guilty of infringement had Apple not given Microsoft license to use these elements. They worded their agreement poorly and Microsoft had a pretty clear license to use elements of the Mac OS look and feel under that agreement.
I looked at this developer's page and he's got himself a real problem here. The characters, the "Super Pac" name, the maps, the pills, the gameplay, etc. al
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I have to agree. I love extensions of game concepts, like Plasma Pong [wikipedia.org], which unfortunately also got ban-hammered for trademark violation. But I don't see any improvement in this game over the original Pacman.
Re:Try having an original idea (Score:5, Funny)
I have one. It's about a guy, named Marty O (and his brother Louis), who is an exterminator. He can run around and go through tubes and hit ceiling tiles with his head to release dollar bills and other power items. There's a queen, and some fungus people, too. I will be releasing it as Super Marty O Brothers. Does anyone see any problems with this?
Re:Try having an original idea (Score:4, Insightful)
Erm, no. Gameplay isn't copyrightable, so what in that description makes you think it is a copyright violation? http://www.wisegeek.com/how-do-i-copyright-a-game.htm [wisegeek.com]
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It's an obvious trademark violation, I'd say. And if it is, they could have sued him immediately instead of sending a notice, so I'd say he was lucky.
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I agree that the name itself is a trademark violation.
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What about character design? Because after following the link the article provided, I can't see a single difference between a Pac Man screenshot and Super Pac. Exactly the same maps, same ghost designs and same main character design.
That is not to mention the name itself, Super Pac, may not be complete but anyone can take that as an abreviation to Super Pac-Man.
Honestly, I feel no sympathy for these situations. How can you protect yourself? Inovate. At the very least change the look of the characters, a
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It's not in the description, but if you went and looked at the page it's clear that he's making a lookalike, and the copyright laws were heavily invested in by disney to prevent exactly that, and the law has come down clear and hard against Mickey Mouse lookalikes.
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Instructions: Based on the classic arcade game Pac-Man, the aim is to eat all the pills in the maze...
I'd suggest a new variation, zombies eating lawyers.
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Children being chased by lawyers.
Redo the art (including sound) with that theme. Then you'll not only be free of trying to balance on the edge of infringement, but also have some claim at satire.
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Probably because Google actually licensed Namco's game, unlike this douchebag who just stole it.
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.
Re:Try having an original idea (Score:5, Insightful)
What is "creative" about making a clone of Pacman? It's funny how often on here people whine about copyright laws stifling creative and yet the things that are being held up as being stifled are clones of other works.
Nothing personal (Score:5, Insightful)
Nothing personal, but seriously dude your game looks EXACTLY like Pacman. Not a little like, but exactly like. If you had made the game with marshmello's and a doughnut then I'd be saying "ya, those bastards!" but you just copied the game and gave it a new name. IANAL but if you copied my game, and put a new name on it I'd be a little upset too.
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Re:Nothing personal (Score:4)
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Well, seriously. The art is so identical that there's *no way to tell* whether it was simply copied (copyright), or re-created but looks suspiciously similar (trademark). Seriously, click through to his site and look at the screenshots... if his version of Pac-Man had a round mouth instead of a triangle, or was colored purple and had an eye on a stalk or something, well, ok. But in this case, I'm kind of cheering Namco on.
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The OP has almost certainly violated Namco Bandai's trademark, but you can't file a DMCA takedown notice over a trademark violation.
No, they could outright sue him. Does OP prefer that option? Since he can't afford a lawyer, probably not.
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Sorry, if you even look at the game's page, it's not just "look and feel", it's just a blantant copy. It's identical in every way. Ghost are the same, yellow guy is the same, maps are the same. It's exactly the same game. Just because he re-programmed it instead of plainly copying it does not change the outcome, it's the same frigging game. He just went the extra mile to copy it.
Oh and the game is called Super Pac. That's just an abreviation of Super Pac-Man!
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.
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Oh. My. God. I'm sorry but OP is a fucking imbecile if he is so deluded as to believe he did not infringe on Namco's copyright.
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Lawyers, lawyers, lawyers (Score:2)
Counter-DMCA notice (Score:4, Insightful)
http://www.cs.cmu.edu/~dst/Terrorism/form-letter.html [cmu.edu]
http://www.chillingeffects.org/question.cgi?QuestionID=132 [chillingeffects.org]
http://www.crucialp.com/resources/tutorials/web-hosting/how-to-file-dmca-counter-claim.php [crucialp.com]
http://www.plagiarismtoday.com/2010/06/03/7-common-questions-about-dmca-counter-notices/ [plagiarismtoday.com]
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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.
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Unless your game contains sprites/sounds etc. either ripped directly or falling into the category of "derivative work"
They look derivative [spwebgames.com] enough to me. It's also "Based on the classic arcade game Pac-Man", and update 1.05 increased the speed of Pacman. Thus, he is using the character Pacman. The ghosts also appear to be quite close to what they appear in the arcade game.
Still, there's plenty of room to create Pacman clones without using Pacman. For example, CD-Man replaces the pizza with a biped rather, Lock-and-Chase replaces the ghosts with police, and Lady Bug adds spinning walls.
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Can't Be The Name (Score:2)
"Pac-Man" is trademarked, not copyrighted. They would hit you with a cease-and-desist for trademark infringement if that were the case.
I'm not sure how DMCA notices work in detail, so I don't know if a lack of specifics makes it unenforceable or not.
The only thing I can think of that might trip you up is if the map layout is identical. I'm not entirely sure how that would work for Copyright.
It would be a risk on your part to tell Google not to take it down, so you should probably talk to a copyright lawye
Clear case of copyright infringement (Score:5, Insightful)
Your game is a complete knock off of the original. From your website, it looks like you copied:
(1) the pac man character
(2) the ghosts
(3) the dots and power dots
(3) the style of the maze
This is clear case of copyright infringement.
You say that "no original artwork or sound has been copied", but this is clearly not true. If you draw it yourself to look like the original, it is still a copy. Instead of copying the original do something new. Change the characters. Put the bad guy box in a corner. Have the maze look different.
You clearly have trademark issues as well. "Pac" is distinctive so any name using "pac" will likely be a trademark infringement.
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Your game is a complete knock off of the original. From your website, it looks like you copied:
(1) the pac man character
(2) the ghosts
(3) the dots and power dots
(3) the style of the maze
It's amazing how, in a world full of copyrights and trademarks and patents and intellectual "property" and all sorts, that people just don't understand any of it.
The items you list above CANNOT be a "clear case of copyright infringement" because you cannot copyright an idea. If you could copyright an idea, then Hollywood would probably produce about 1 film a decade while the lawyers researched the script for stuff people had done before ("This script has a cop with a chip on his shoulder. That was done in L
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That's what a copy is, something made to resemble the original.
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Look at the screenshot on his site. If you "draw it yourself to look like the original", and it turns out *pixel for pixel* to be identical to the original, how does that differ from copying? We're not dealing with a Van Gogh painting here; we're dealing with a computer graphic composed of limited amounts of pixels.
Re:Clear case of copyright infringement (Score:4, Insightful)
"Copyright infringement liability for a later work arises only if the later work embodies a substantial amount of protected expression taken from the earlier, underlying work. The later work must take enough protected expression (it does not matter how much unprotected material is taken, for the latter is open to the public) for the later work to be "substantially similar" to the earlier work." -Wikipedia.
That shit is blatantly infringing on the PacMan character, which is absolutely copyrightable. There's also the need for sufficient originality in a work, which this game does not have any of.
WANLs (Score:3)
Hire a lawyer. He'll file a counter notice, and defend you in the lawsuit. Or preemptively sue.
Or hire a wizard and have him wave his fingers to make your game clone go away.
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He will also take your money and you will loose.
If you happen to meet a honest lawyer, though, he will laugh you out off the office.
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.
Do not wake the sleeping giant (Score:4, Insightful)
I agree with others. You could probably file a counter-DMCA notice, and be fine.
Then, NamBandiCo will take more notice, look at your game, and sue your pants and several layers of skin from you for blatant infringement. And they will (rightfully) win. And it will be good. For them.
So basically, count yourself lucky you only have a DMCA notice and call it a day.
Slashdotters please.... (Score:2)
Not copyright, trademark (Score:2)
The use of the DMCA in this case appears incorrect since he's not using any copyrighted materials.
What is happening is blatant trademark infringement; he should have been sued instead.
So he sort of has a valid complaint but as you say he doesn't really have moral cause to be complaining.
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.
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This isn't worth it, the game is too much of a direct rip-off. Considering the high probability that his game is beyond help (look at the screenshot, show that to anybody and they'll say "that's pac-man!") and how little effort it likely took it's more economical to just walk away, call it a write-off and make something original next time.
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Really guys, lawyers don't bite (most of them anyway(. As Grond points out, a brief conversation with one won't set you back much, if at all. He needs very basic advice, not a trip to the Supreme Court.
You then have the advantage of knowing what you should and should not do instea
your statement is factually incorrect (Score:3)
Looking at your artwork, it seems obvious that you copied theirs. Probably not with a photcopier, or a binary file copy, but with a paint program of some sort I'd guess. It's still copying. Whatever you believe about the rightness/wrongness of copyright itself, I think you'd be hard pressed to find even a tiny fraction of the population that wouldn't say this fits the definition of copying.
further information (Score:2)
Of course I could get access by filing a counter notice, but was too scared to do this
To answer of the "rip off" accusations: My understanding of copyright is that it's perfectly acceptable to create something that is inspired by something else as long as the original source material is not used. I would add that there are plenty other pacman clones out there wi
Copyright Law. Read it. (Score:3)
I am not a lawyer and as such, do not have the training and experience required to be able to help you. However, I am an American citizen and that makes me responsible for making sure I myself do not break U.S. laws. In our legal system, ignorance of the law is no excuse. While being ignorant of the law can, in some cases, change the punishment you receive, it will not excuse you from breaking the law entirely.
This is why it is so important for us to read at least the aspects of the law that are relevant to what we do. Given the nature of the Internet and computers in general, copyright law is very important to all of us. Despite this, somehow almost no one reads it yet everyone tries to wax intelligent about it.
Many laws are very very cryptic. Luckily, copyright law is not one of them. Go here to obtain a copy of the current U.S. Copyright Law:
http://www.copyright.gov/title17/ [copyright.gov]
Be sure to check back regularly for updates. When reading this document, it is important that you read and understand Chapter 1, Section 101, "Definitions" before reading anything else. If you do not read this and understand it, you *WILL* misunderstand the rest of the document. Once you understand this section, the rest of the document becomes far easier to understand.
Doing this will not prepare you to battle IP lawyers in court, but it will give you a better understanding of copyright in the U.S. and help you avoid copyright issues in the first place. As always, even if you read this law, go hire a real lawyer if you know you are on shaky ground. Attempting to clone someone else' product should immediately make you realize you are on shaky ground, even if you have not read Title 17 of the U.S. Code.
Hint: You don't have to read the entire document. There are sections that do not directly pertain to most modern computing situations. However, it should become very clear very quickly which sections are important to you.
Doing this now will help you to see the infringements you have made in your game. Just one look at the screenshot of your game reveals too many copyright violations to ignore, let alone the text on your web page.
Just look at the screen shot... (Score:5, Insightful)
Put this image in front of an average citizen.
http://spwebgames.com/pacman/screenshot2.png [spwebgames.com]
Ask him what it is.
He'll say "Pac Man"
That's the guy that's in the jury of the trial figuring out if it's copyright infringement or not.
WHAT DOES IS MATTER THAT IT'S A RIP-OFF? (Score:4, Insightful)
Holy mother of screaming baby jeezus. I've been on /. for years and never have I seen such a frustrating thread as this.
Nintendo (or Namco or whoever they are) created Pac Man about 30 bloody years ago. Isn't that ENOUGH TIME for them to have made some money out of it?? Let it go to the public domain where people like this guy can re-interpret it (however incrementally) and maybe make it BETTER! If it's a boring clone, then it deserves to be - and will be - forgotten. If it's not, then cool!
To all those bleating "it's copyright infringement!" here: Would you have it that if I install the plumbing in your house, I should have the right to ask you for a payment every time you have a bath - for the rest of my life plus 70 years? And what do you think went on before about 1750? Was there no culture or innovation in the arts? There was no copyright then after all.
Can't you see that this post is a fantastic example of how we have been completely eaten up by crazy long copyright terms. WHAT DOES IT MATTER THAT THIS GAME IS A RIP-OFF OF A 30 YEAR OLD IDEA? I have no sympathy with cigar-smoking fatsos wanting to squeeze yet more money out of one person's ancient idea so they can build another swimming pool in their garden.
Absolutely none. I hope this little guy wins, and wins big.
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There are very, _very_ few posts here saying that what he did is _morally_ wrong. What they're saying is that it's pretty blatant copy and is, therefore, illegal. Yes, this game should be legal, but it's a pretty blatant Pac-Man ripoff. Not even the slightest attempt to change the game really. So based on our current laws, I don't think there's any way he can reasonably claim he didn't do anything illegal. (But of course, IANAL.)
Of course, there have been one or two posts saying it is morally wrong, based o
Modern copyright law is STUPID (Score:3)
This highlights why today's copyright law is flawed. Pacman was created 30 years ago, and that someone could be sued for it today is just ridiculous. Plus, add to that the over-stretched "derivative works" laws, where things that look similar but are not copies can be legally considered copies (i.e., copyright no longer applies to the expression of an idea, but to the underlying concept as well -- definitely what the founding fathers intended!).
I'm sorry, but it really pisses me off to see someone's hard work being taken off the market because something similar was released in 1980. Take away the copyright protection, and let Namco compete with the OP to make the best clone of the 1980 game!
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30 years is almost half a lifetime, so yes it's too long. The same thing will be happening in another 60 years from now, so will you be asking for my age then?
So what if the market hasn't died yet? That they can still squeeze money out of Pacman doesn't mean they are entitled to do so. The monopolies given by copyright were meant to be for a limited time only, and entitlement is not a good argument for extending its duration.
And yes, hard work. Just coming up with an idea isn't copyrightable, nor is it real
The best way to avoid problems. (Score:3)
You get permission. In writing. IN ADVANCE. Unless your idea is so unusual or unique that it can't reasonably be considered to be a direct derivative of some other copyrighted creative work, your best bet is to feel out those who might complain about it before its an issue. If they say no, you simply move on to the next idea, without losing any time, money or resources. While the world has spent the last couple of decades jumping on the multi-ghz 3D-everything bandwagon with regards to games, a lot of the simpler classic games have fallen off the radar, and yet the copyright and trademark owners have maintained and enforced them, because there's a good chance those old concepts will gain some new life in the handheld/portable/phone market, where they would never again see light on the desktop.
Besides, Pac-Man has had a long and colorful history of infringement lawsuits related to it. It's a field of landmines best left avoided.
-Restil
Author got what he deserves. (Score:3)
Exhibit #1: It looks like fucking Pacman! -- Reimplementing the original artwork does not amount to your own original artwork. This is the same thing those fools did last year who claimed that they could legally sell Beatle's MP3s because they had filtered them through "a unique algorithm" and recorded the results. That work, and this, were not original -- they are derivative (and closely at that) which is protected. If you want to avoid that issue, create environments, and more importantly characters that are at least reasonably original.
Exhibit #2: SuperPac -- Pacman may be the explicit trademark, but trademark itself is essentially designed to be a bit fuzzy. Its purpose is to prevent fraud by confusing customers. In many cases (counterfeit goods) it is both the customer and the holder of the trademark who are harmed. "Pac-Something" used in the context of a video game is likely close enough that a court would uphold the violation, much less a video game about eating things in a maze while avoiding enemies, and much, much less about a yellow, puck-shaped thing eating dots and pills while being chased by ghosts.
The author is a tool and a moron for believing he has the right to profit from such wanton disregard for copyright and trademark and for his merry riding of coat-tails. Nothing is wrong with making a tribute to, or refining gameplay, but this is outright plagiarism.
Advice to the author -- Settle up and at least come up with some original artwork and environments. The look and feel of Pacman is *not* yours to profit from (whether in real money, reputation or pride). Better yet, have an original thought. A good one. Then make it happen. Clearly you are not incompetent, at least on the programming front, so no excuses.
Sincerly,
--A Real Indie Game Developer
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Obviously the more laws there are the more laws can be broken, and therefore the more criminals will be.
Simple logic will tell you that.
Without laws there would be no criminals.
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A criminal is by definition someone who violates the law. And police have abused their powers since the beginning of there being police, that's relatively independent of the density of laws, it's more a measure of the corruptibility of human nature. Of course, it worsens the more power police have.
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I don't know if his game violates any rules, but it's possible. Of course, there are tons of similar games that don't, so who knows, other than ip lawyers.
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The DMCA has been ripe for abuse since before it was signed. Since then it's been used illegally many many times with little or no repercussions to those who abuse it.
The way I see it, without the DMCA the guy would have been sued for copyright infringement. Maybe he would have received a letter first "Please withdraw your app or we will sue you for copyright infringement". This way, there is a good chance that he gets away undamaged.
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That's a trademark, not copyright.
I'm quite certain the problem here is that it looks identical to Pac-Man.
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Some people think copyright infringement only covers directly ripping assets from games, not remaking it to look practically the same.
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yeah, silly people, thinking 'copyright' means the exclusive right to make identical copies of something ...
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Exactly. Anyone with half a brain would agree that he copied the artwork. Whether he did that with a xerox, cp, bittorrent or by hand in mspaint is irrelevant.
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Some people think copyright infringement only covers directly ripping assets from games, not remaking it to look practically the same.
Those people are known as 'dupes'.
(With apologies to MST3K.)
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You could try developing something original. Why do you think you can just make money rewriting someone else's idea on a new platform. [snip]
Posted as AC cuz slashdot has an anti copyright bias. Im not trolling.
I think what you call "anti copyright bias" is just plain common sense in most cases. Nintendo or whoever they are have made a shedload of cash from a single creative event that happened about 30 years ago. They then "rewrote" this idea numerous times and re-sold it because the copyright system allowed them to, and will allow them to pretty much for ever.
How about limiting the TIME of copyright to about 10 years so that people can rip mix and burn stuff to their heart's content, just like they used to a few
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I think what you call "anti copyright bias" is just plain common sense in most cases. Nintendo or whoever they are have made a shedload of cash from a single creative event that happened about 30 years ago. They then "rewrote" this idea numerous times and re-sold it because the copyright system allowed them to, and will allow them to pretty much for ever.
How about limiting the TIME of copyright to about 10 years so that people can rip mix and burn stuff to their heart's content, just like they used to a few
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Hah. Yeah right. Recreating images in the likeness of is just as much a copyright violation as hitting copy/paste is.
Clone games go down like this all the time.
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Nonsense, just because the graphics aren't direct rips doesn't mean it's not a derivative work and those are covered by copyright law too.
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Do you know what the C in DCMA stands for? Hint: it isn't "trademark".
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You can't copyright gameplay. You can patent it, though.
But...but corpra$hun'$ are teh €eevu£! (Score:4, Insightful)
I must be in that episode of "Sliders" where they were in a world where a red traffic light was go and green meant stop.
Because on the slashdot in *my* universe, information wants to be free and anyone complaining about copyright/patent/trademark infringement is a exploiting an illegal artificial monopoly.
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What you've run into is that Slashdot is even more vigorously anti-stupidity than they are anti-copyright.
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If you are seriously complaining that you totally ripped off an extremely famous game for profit and got called out. Consider yourself lucky thats all they did!
I'd say that this is in fact what's wrong with *copyright* (if this is a case of copyright infringement, which I doubt).
Nintendo had the original idea for Pac Man in the friggin' 1980s! Don't you think it's been enough time for them to have made some money off it so we can now do our own versions?
The fact that cigar-smoking nobodies can build swimming pools and retire on huge pension for decades and decades on the back of some tiny act of creative genius is ridiculous.
I hope this guy wins, and better still,