Can I Copy a Game and Sell It? A Deep Dive into Copyright and Game Clones
The short, sharp answer is a resounding NO, you generally can’t legally copy a game and sell it. Copyright law protects the intellectual property of game developers and publishers. Blatantly copying a game and attempting to profit from it is a surefire way to land yourself in legal hot water. There are many nuances to this, however, and understanding the specifics of copyright, trademark, and patents as they apply to video games is crucial. This article will explore those nuances and provide a comprehensive overview of what is and isn’t permissible.
Understanding the Legal Landscape of Game Development
Game development is a complex process involving numerous creative elements, all of which can be subject to legal protection. These elements include:
- Code: The underlying software code of a game is protected by copyright. Copying the code is a direct infringement.
- Art Assets: Character designs, environments, textures, and other visual elements are also protected by copyright.
- Music and Sound Effects: Audio assets are similarly protected.
- Story and Dialogue: The narrative components of a game, including the plot, characters, and dialogue, are covered by copyright.
- Trademarks: Game titles, character names, and logos are often protected by trademarks, preventing others from using similar names or imagery.
- Patents: Although less common, some games incorporate patented gameplay mechanics or technologies.
The Line Between Inspiration and Infringement
While outright copying is illegal, drawing inspiration from existing games is a common and accepted practice in the industry. The key difference lies in implementation. You can’t copyright ideas, only the specific expression of those ideas. Therefore, you can develop a game with similar mechanics to another game, but you must create your own original code, art, music, and story.
For example, many games draw inspiration from the basic principles of platformers like Super Mario Bros., but they are distinct games with their own unique assets and characteristics. On the other hand, if you were to directly copy the level designs, character sprites, and music from Super Mario Bros. and sell it as your own game, you would be infringing on Nintendo’s copyright.
The Dangers of “Clone Games”
The legality of “clone games” is a gray area. A clone is a game that closely mimics the gameplay of another game, but with different content and branding. While you can’t copyright gameplay, cloning can still be risky. If your game is too similar to the original, and users might mistake it for a sequel or a product authorized by the original developer, you might face a lawsuit.
Copyright infringement occurs when you violate the exclusive rights of the copyright holder, including reproduction, distribution, and creation of derivative works. Even if you change some elements, if the overall impression is substantially similar to the original game, you could be liable.
End-User License Agreements (EULAs)
End-User License Agreements (EULAs) also play a critical role. EULAs specify the terms under which you are allowed to use a game. Typically, EULAs explicitly prohibit reverse engineering, modification, and redistribution of the game without the copyright holder’s permission. Violating a EULA can have legal consequences.
The Importance of Originality
The best way to avoid legal problems is to create something truly original. Focus on developing unique mechanics, compelling narratives, and distinctive art styles. By creating your own intellectual property, you can minimize the risk of infringement and establish a strong brand for your game.
The Games Learning Society (https://www.gameslearningsociety.org/) promotes research and education in the field of game-based learning, and can be a valuable resource for understanding the broader context of game design and development.
What If I’m Just Giving It Away for Free?
Even if you’re not selling the copied game, you’re still likely infringing on copyright. Distribution, regardless of whether it’s for profit or not, is a right held by the copyright owner. They can still issue a cease and desist order and potentially pursue legal action.
Frequently Asked Questions (FAQs)
Here are 15 frequently asked questions to further clarify the legality of copying and selling games:
1. Can I use game ROMs?
Game ROMs are digital copies of game cartridges or discs. While emulators (software that allows you to play ROMs) are generally legal, downloading and using ROMs of games you don’t own is copyright infringement.
2. Is it illegal to make a game similar to another game?
It is not illegal to make a game with similar mechanics or ideas to another game, as long as you don’t copy protected intellectual property, like art, code, music, characters, or story. The key is to have a distinct implementation of the game’s design.
3. What happens if I get caught copying a game?
You could face a lawsuit from the copyright holder. The consequences could include monetary damages, injunctions (preventing you from selling or distributing the game), and even criminal charges in some cases.
4. Is it possible to get permission to copy a game?
Yes, you can obtain permission to copy a game by securing a license from the copyright holder. This usually involves paying a licensing fee and agreeing to specific terms and conditions.
5. What is fair use? Does it apply to copying games?
Fair use is a legal doctrine that allows limited use of copyrighted material without permission for purposes such as criticism, commentary, news reporting, teaching, scholarship, and research. Fair use is unlikely to apply if you are simply copying a game and selling it.
6. How much can I copy without infringing copyright?
There’s no set percentage or amount you can copy without infringing. Even a small amount of copying can be considered infringement if it is a substantial part of the original work.
7. Are games automatically copyrighted?
Yes, games are automatically copyrighted as soon as they are created and the elements are “fixed” in a tangible medium (e.g., code written to a hard drive, art created in a digital file). However, registering your copyright with the U.S. Copyright Office provides additional legal protections.
8. What’s the difference between copyright, trademark, and patent?
- Copyright protects original works of authorship, such as code, art, music, and stories.
- Trademark protects brand names, logos, and other symbols used to identify goods or services.
- Patent protects inventions, including novel gameplay mechanics or technologies.
9. Can I get sued for copying a game if I redo everything differently?
Even if you redo everything differently, but your game is so similar that people might mistake it for the original game or a sequel made by the original company, you could still get sued. The issue here would be more related to trademark infringement than copyright infringement.
10. What if I make a fan game?
Fan games are unauthorized uses of copyrighted property. Copyright holders can issue cease and desist orders and potentially sue you, even if you’re giving the game away for free.
11. Is it illegal to sell reproduction video games?
Selling reproduction video games without permission from the developer is illegal due to copyright infringement. It’ll take many decades for copyright to expire on old games, until then you can only sell used original copies.
12. Does the FBI go after piracy?
The U.S. agency in charge of going after copyright infringement violators is the FBI. If they detect you’re pirating protected content and decide to prosecute, you may face severe fines and imprisonment.
13. Has anyone gone to jail for ROMs?
While websites sourcing ROMs have often been asked to shut down, no one has ever been prosecuted solely for downloading ROMs. Distributing them is another story.
14. Will Nintendo sue you for downloading ROMs?
Nintendo likely won’t sue you for downloading ROMs or emulating games for personal use. However, legalizing it could lead to websites profiting from ROM downloads.
15. What is the legality of clone games?
The legality of video game clones is governed by copyright and patent law. You cannot copy any specific names, things, or text since you cannot trademark or copyright gameplay & rules. Dominoes, checkers, and chess are all ancient games that you can do whatever you want with.
The Bottom Line
Copying a game and selling it is a serious violation of copyright law. While you can draw inspiration from existing games, it’s essential to create your own original content and avoid infringing on the intellectual property rights of others. Building a successful game development career relies on originality, creativity, and respect for the law. You could seek advice from experienced game industry professionals.