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[Tokinsom]

Just something I've been curious about for a while...seems no one really has any solid answers.

"Copyright infringement is the use of works protected by copyright law without permission, infringing certain exclusive rights granted to the copyright holder, such as the right to reproduce, distribute, display or perform the protected work, or to make derivative works."

So then, how is it legal to sell fan-made videogame merch? What am I missing here? It can't simply be that it's under the radar.. and parody protection and such rarely apply.

I see art prints, posters, paintings, perler sprites, plushies, remix albums, apparel, custom figurines, and everything in between. Perfectly ok, apparently.

But...a fan game, movie, or animated series? Oh man, that's breaking all the laws. You're going down, buddy. Anyway, want to buy my pixel-for-pixel perler bead Samus sprite for $50? I'll throw in my note-for-note-but-different-instruments "remix" album for 25% off!

What really gets me is no one would be buying this stuff if it wasn't completely ripping off their beloved franchises...which is exactly why copyright exists in the first place. I've contacted some of these sellers about it and they weren't happy about my inquiries to say the least.

What's the deal?

[Moth]

Technically I think developers can put their foot down pretty easily on any fan works sold for profit, but choose not to. In particular the big "doujin" fanwork movement of japan, including fan mangas and games and stuff of established characters is generally considered low-cost advertising for the original work in question. You can read more about that sort of thing if you google doujin legality or something like that. But I think that explains why people make merchandise of japanese properties so freely for conventions and etc.

disclaimer: I am not a lawyer. I would like to see someone go in depth on the legality of fan prints/posters of copyrighted characters if anyone around here knew anything about that? I see those all the time and similarly wonder if all of those people got permission or if it's in a gray area or what.

[Dacke]

In the US it's a legal gray area. It's apparently case specific, depends on if it's "fair use", how much it matches the original work etc. This article is pretty well written and cites a number of different cases:
http://io9.com/5933976/are-fan-fiction-and-fan-art-legal

In practice, the big companies with lots of lawyers can send cease-and-desist letters to anyone they don't like (no matter what the law says). But having people creating (flattering) fan stuff is generally considered good PR these days, and trying to shut it down can lead to some terrible PR.

My guess is that creating and selling something "big", like a game or album, isn't considered normal by the public. So different rules apply because of a difference it public perception. Additionally, selling such things usually means including publishers, in which case you enter a different legal realm.

That said, copyright is friggin' stupid. It's human nature to play around with ideas, characters and stories that are part of our shared culture. Building on shared culture should be a human right, not a crime.

[valrus]

For the most part, most such items you see violate copyright.  Not in its most basic form (like an actual reproduction from the original work), but copyright can also apply to (non-functional) aspects of a design.  (So if you can identify a drawing as being Mario, there's probably enough of Mario's distinctive design elements that it's infringing.)

But as the others say this is complicated by the real world, in that some things that a court of law might *not* find infringing nonetheless won't go to court, because it's a billion-dollar corporation vs. some kid, and the kid would never be able to sustain the case.  On the other side, many things would be legitimately infringing but the company turns a blind eye, because prosecuting would turn good publicity into terrible publicity.

The practical dividing line is often the potential for confusion.  Many companies don't really mind people making little things, because that reinforces the idea that their IP is a major cultural force.  Like if there's a Mario joke on a shirt, then that reinforces to everyone that sees it that Mario is relevant.  You might even make a little fan game; I gather that Nintendo is currently sometimes tolerant of fan-games.  On the other hand, if you make something that could legitimately be confused for a new Mario game, then they would probably do a cease-and-desist.  Nintendo's bread-and-butter is that they're the only company that can legally make those, and they don't want people confused about which ones are real.

[starsrift]

If you want to be someone who makes content, trying to play with this gray area is a minefield. Just don't.

If you're a fan and you wouldn't mind not turning a profit because lawyers descended upon you with suits and briefcases to tell you that all your profits belong to them, go right ahead.

[Sik]

To reply to the question: it's illegal, period =P (it's illegal even if it's given away, in fact) It's just that until the copyright owner (or somebody representing them) calls foul, nothing happens.

In particular the big "doujin" fanwork movement of japan, including fan mangas and games and stuff of established characters is generally considered low-cost advertising for the original work in question.

I recall reading somebody commenting on this before, the "rule" is that you didn't have to profit from it (i.e. you only charge enough to cover the costs), the moment you profit from a fanmade work you'll get in trouble as Japanese authors are very fierce when it comes to enforcing their copyright.

[Dacke]

To reply to the question: it's illegal, period =P

Well.. no. As I mentioned earlier, it's a gray area. Read the article I linked if you want to look at specific cases.

For example, Double Fine's game Hack 'n' Slash could be considered a Zelda fan game. It's basically presented as Zelda with a twist. But it's seemingly different enough so that they can get away with releasing it as a commercial game and getting it published on Steam etc.

[Pfotegeist]

@Dacke

You could start here and see if it makes sense: https://en.wikipedia.org/wiki/Parody#Copyright_issues

What country you live in determines what's ok to sell. Copyrights are a complex multicultural beast.

Check this one out: https://en.wikipedia.org/wiki/Copyright_law_of_Italy#Moral_rights
Super strict.

[s0]

you could just do what legend of grimrock and freedom planet have done and change names and art assets while still making it really obvious what your game is based on.