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Rules regarding Making Games with other Assets


FinalCloud

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Hi, I am hoping to make a game at some point, however one issue I have is that I cannot draw to save my life!
I also cannot read Japanese to do a translation (planning to learn I swear!)
..
Now, I have seen that people make translations of games all the time. This makes me wonder if I could do something like the following:

Use art/sounds I like from an existing game that will most probably never be translated for CGs
Use the CGs to craft a plot/scenario of my own, possibly with the original plot as a basis, possibly not.

Probably sounds illegal right now, yea, if I released it as a stand alone game with all the art/sounds I obviously know it would be.

However, my version would:
1. Be free
2. Not contain any resources or image files etc. The data and any other files specific to my version would overwrite the original game files.
This means the original game must be purchased to use my version.

Could anyone say if this is possible, from my understanding translators do not always need permission, and as far as I can tell what I am proposing essentially does what a translation would do (Although Data files would be new files rather than edits of existing files).
Is there anything I need to know from a legal/technical standpoint?
 
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habisain

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I'd say it's a derivative work in this case, which is a grey area. Technically it would be illegal, in pretty much the same way that a fan-translation is (for the avoidance of doubt, all fan-translations without permission are technically illegal) - simply because while you're adding new stuff, I'd imagine that the context of the images you're using would influence your own scenario, and hence it's a derivative work. The emphasis though is on "technically illegal". It's really unlikely you'd be hauled up on this, and even then it's unlikely a reasonable court would find you guilty of anything, because (if anything) you were driving more sales of the original work, and hence there were no losses suffered.

If you want a perfectly legally safe route, the only way would be to approach the original creator and ask permission.
 

Pervy

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What habisain said, expect thats not grey, you're violating copyright laws, that both original and new work are entitled to protection under derivative work laws is irrelevant here. You wanna stay on the un-worrysome side of the law only do it if you got written and expressed permission.
 

habisain

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@Pervy: In practice, it is somewhat grey - or at least in this case, where original data isn't being distributed. While you're right that it's a violation of the original copyright without permission, many jurisdictions will require that there is some kind of damage to the complainant, which will normally be lost sales. If the violation of copyright doesn't cause damages, then in practice it's quite hard to be convicted. Of course though, this doesn't mean your home scot free; there's lots of stuff which could make life difficult for you, e.g. DMCA.
 
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FinalCloud

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Cheers for your feedback all. Well that is a shame, it is the only way I can really see myself getting into making a game.

I dont really want to risk getting dragged into court over something I am just doing for fun and releasing to people for their fun at no expense to the original author.
Especially over making HGames, something I would rather keep private from all those I know lol!

I know there are some creators around using some Illusion studio software, but I am not so keen on that style, plus as far as I can tell those editors must be quite limited.

What you guys say about contacting the original authors, yea I would, but A. They are (mostly) Japanese, I am not sure how well I could communicate and B. thats
assuming I can even get in contact with them in the first place!

I guess I will have to give up on my plan =/ Ah well. Can always try contacting an author. But it feels like that could end up being challenging. Requirements are: A Game unlikely to be translated + Nice art + Active Author + I would probably target oldish games
 

djweish

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Of course it violates copyright, but you'd be very unlikely to get into trouble for a small, free fan game using assets from old Japanese games. Whilst it is technically illegal, even if they did find out what you were doing and want to stop you, they'd be much more likely to just send a cease and desist that try to have you up in court (trying to sue someone in a foreign country for reusing decades old art assets in a free fan game? That's seriously not going to be worth anyone's time.)

Now, if you do want to stay on the legal side of things you can try using assets that have already been stated as free to use, or buying a license for art packs - for example this (first one that came up when I googled, there are many other ones too).
 

Pervy

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@Pervy: In practice, it is somewhat grey - or at least in this case, where original data isn't being distributed. .
Wtf are you talking about. Pictures ARE original data.

 
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FinalCloud

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Pervy and @djwish

Forgive me if I am missing something but;
The point is that I am not planning on distributing the pictures, all I myself would distribute is the data folder as I said in my initial post; just the same as with a translation,
In order to have access to the pictures/music/sprites etc, the user would have to purchase the original game. Without the original game all they have is a load of map files etc and it would NOT be playable.
 

Pervy

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Oh thats actually completely different, my bad then, though you did explain it weirdly, reason everyone is confused.
What you are creating then is a transformative work not a derivative, and moreso it's a transformative work that, if I catch you right, can't even cut into the original authors earnings, instead rather drawing attention to them, that's protected under fair use law and A-ok.
 

djweish

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I suppose if you're not copying and distributing anything at all from the original games (like any of the text) it wouldn't be illegal. It would be like writing a short story, and then saying "for best effect, you should listen to Bohemian Rhapsody by Queen whilst reading this." So I guess your plan is to make your own game, but where it asks for art assets just call the name and file structure that they would be stored in the other game and not actually include the picture yourself? (Or you could include placeholder images that could be overwritten by people who owned the right images, I suppose). The only thing you'd have to copy would be the name of the images, since you'd need to use the names in your script; and that's probably not enough to break copyright.

You might need to be careful about trade dress. From wikipedia: "A cause of action for passing off is a form of intellectual property enforcement against the unauthorised use of a get-up (the whole external appearance or look-and-feel of a product, including any marks or other indicia used) which is considered to be similar to that of another party's product." In other words, if your game and its appearance end up looking very samey to the game you're using, you might have issues. Make sure it's clear in any descriptions that you're not affiliated with that company - the idea is you don't want people confusing your product for the real thing.
 

omp1234

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-EDIT-

Alright, hold up, I get what you're saying.

Are you talking about making a mod?

As long as none of his assets (that aren't part of the core RPGMaker free asset library) are contained in your mod's files, then yes, you can make a bunch of generic RPGMaker asset content to be used to over-write his game's content. Just be sure your mod's files don't have any of his art in it and you're fine.
 
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Gamer23

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All i know is that using assets derived from a commercial product that is not open source is illegal unless stated otherwise in their terms and conditions of fair use.
Depending on the creator, it is best to ask for permission before using assets from commercial games made by them as getting the assets from a commercial game by itself is already an illegal act as it covers the tampering of the game's packed data.
Free scripts and assets can be found online.
Always link assets you used at it's source.
Assets includes music,voice recordings,cg,models,scripts.

That is my take on the situation.
 

habisain

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@Pervy: No, this use would be derivative. There isn't a clear definition on what is transformative, but read up on the subject matter. I don't think this type of use would be transformative, which is generally reserved for parody and criticism (and other things which are "public interest" defence; this is a porn game we're talking about, so I don't think public interest defences will cut it).

In any case, I'd stand by my original advice: technically it would be illegal as a derivative work, but given that you would be driving sales of the original work, I can't see how damages would be done and hence actual conviction will be difficult (not to mention the difficulty someone would have in serving you papers). Given that the cost of prosecution almost certainly outweighs any benefits to the original author, it's really unlikely you'd actually be prosecuted for something along these lines, although you would be subject to cheaper forms of enforcement action (like DMCA).

@omp1234: Incidentally, mods are also technically illegal unless permitted by the license. But no sane game maker would prosecute mod makers, because they don't do damages and drive original game sales - if anything, they use cheap enforcement actions (e.g. Nintendo DMCA'ing mods for its games, rather than taking the authors to court).
 

Zero_Blazer

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If I'm understanding this correctly, don't we already have games that do this that are quite popular? Like Slave Maker and Hentai High School? How would this be any different from those?
 

habisain

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Slave Maker/Hentai High School actually bundle the copyrighted assets. They're blatantly on the wrong side of copyright, but the copyright holders haven't enforced claims against them for whatever reason. Perhaps because either damages couldn't be proved, or perhaps because they're ripping from relatively old games and no-one cares. I'm not sure about Japanese corporate culture, but regular Japanese culture does tend to chuck out a lot of old stuff. Perhaps the companies simply don't care about old games?

This would only be slightly on the wrong side of copyright, and I don't see how you could make an argument for damages in this case. Then again, not a lawyer, and I'm sure an argument could be made. It just comes down to whether or not attempts at enforcement are a) reasonable from a cost/benefit point of view or b) likely to succeed.
 

Nimrod

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All these people talking copyright like they are law majors is cute and all, but all that you're gonna get out of it is confusion and useless information.

What you need is a layman's guide on how the real world works.

First and foremost, what is legal and illegal depends on where you live, where the content you are using is from, and how and where you distribute it. So you won't find a clear answer without consulting real lawyers, and I use the plural because they are bound to argue amongst themselves, since law is more of a fluid set of as vague as possible guidelines based on common sense, than an actual rule book. There is no clear answer, that's why courts exist, you go to court and the one who gives the most convincing argument gets the hopefully reasonable judge to side with them. Thing is, nobody wants to go to court, it's expensive, it's long, it's annoying, and it's always a gamble in the end. That's why people settle things before going to court, that's why even huge companies would rather just send a "Cease & Desist" email rather than outright sue people, they know it's a waste of money to do that but they have to prove they are protecting their IP lest they lose it.

Now, what you are describing is a mod. In and of itself it's not illegal, if someone wants say it is, they have to prove that in court, there is no automatic sentencing, we're not talking about fascist youtube or twitter here. The one most important thing in court is to prove something caused harm, if you can't prove something was damaged or a profit was lost it's a waste of time for the court. For example, the mod itself doesn't work on it's own, it requires the original, which is an argument in your favor as it is theoretically boosting sales, which would result in profit and not in loss, which gives an advantage but never a sure win. The fact you want to release it for free is arguable, as I guess you plan to at some point make a patreon. Any sane court would be able to understand you are profiting from that then, even if it's paypal donations or any other form of "charity", judges are not complete idiots after all, if you treat them as such you always lose.

The thing you have to realize is that you exist within a grey area, if you play it right nothing is ever going to happen to you. The idea is that nobody wants to go to court, because it's an expensive gamble, so what they will do is contact you personally and try to resolve the thing as fast and painlessly as possible. What you do then is talk to them as politely as you can, try to reason your point of view, try to make them understand that your actions profit them. If you succeed you win, case closed. If you are not successful you comply with their demand, which can only be to stop distributing the product. So you delete your link and move on to the next project. Your patch is out there multiplying like bunnies but you are not responsible for it's distribution anymore. You lose the argument but it's not a real loss, since who cares if you can distribute it for free or not, it's out there the internet will do it for you. The main thing here is that you comply, meaning you have settled the situation out of court. Which means any idiot that is not satisfied and decides to try to bring you to court loses by default, because the dispute was settled already. No lawyer would take a case like that.

That is fancy and all, but the law is not really your main problem, your worst enemy is your attitude, to be more specific it's your ability to make people love or hate you. This is because most developers are whiny pricks, it's a sad truth I know, but they have fans, and those evil little creeps hate it when you make their beloved whine. They are gonna come at you in forums and social media, and being on the safe side of the law won't mean shit. They will tarnish your name, destroy your brand, ruin your means of distribution and public relations. That's why your best weapon is being polite to everyone, be nice, don't make drama, never fight because you are so right. Then you build your base, make fans of your own, and then maybe one day you get a chance at being a whiny prick yourself.

tl;dr Stop thinking about copyright bullshit and be nice to people.
 
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djweish

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@Pervy: No, this use would be derivative. There isn't a clear definition on what is transformative, but read up on the subject matter. I don't think this type of use would be transformative, which is generally reserved for parody and criticism (and other things which are "public interest" defence; this is a porn game we're talking about, so I don't think public interest defences will cut it).
I don't think this would even count as derivative since he isn't going to distribute any of the original copyrighted material. Like I say, his plan is really no different to writing a picture book, only instead of the pictures there are blank spaces that read "if you happen to own a copy of Da Vinci's Mona Lisa, stick it in here." There's no way that that would be actually breaking the copyright on the Mona Lisa. (Assuming it was still in copyright).
 

omp1234

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@omp1234: Incidentally, mods are also technically illegal unless permitted by the license. But no sane game maker would prosecute mod makers, because they don't do damages and drive original game sales - if anything, they use cheap enforcement actions (e.g. Nintendo DMCA'ing mods for its games, rather than taking the authors to court).
You're thinking of releasing "modded games", like Super Mario ROM hacks, etc. Distributing files that would modify a game when applied as a patch is 100% legal provided it does not contain any content created by the original copyright holder, like what OP would be making and releasing.

As for nintendo taking down romhacks and fan games, those are cease and desist orders filed due to the fact that the makers were not selling such things for profit. Had they been selling the games, they would likely go to court for damages.

 

habisain

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You're thinking of releasing "modded games", like Super Mario ROM hacks, etc. Distributing files that would modify a game when applied as a patch is 100% legal provided it does not contain any content created by the original copyright holder, like what OP would be making and releasing.
I fear this is an opinion not backed up by fact, no matter how much I would like it to be. . However, the most pertinent precedent set that is referenced there is Micro Star v. FormGen ( ) ( ) which found that user created map files for Duke Nukem 3D were copyright infringing - despite the mod not containing any copyrighted assets itself. Hence current precedent is that mods, even if they contain none of the original source material, are indeed illegal.

Hence it all will come down to whether or not the author is willing to put the effort into enforcement (knowing that damages are unlikely to be found), if they just settle for doing DMCA, cease/desist, or if they agree to the use (explicitly or implicitly). In the end, talking to the author is the best way of figuring things out.
 

Jesus

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I think for development's sake it'd be fine to use assets lifted from other games as placeholders, but only if you have the intention of replacing them later down the line and that you don't seek to profit while any of those borrowed assets are still in use. If you want to eliminate uncertainty, you could always ask those who legally own those assets.
 
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