Is it Legal to Sell Fan Games?
The ever-expanding world of video game franchises often fuels creative enthusiast-led projects, known as fan games. These grassroots developments can be a creative outlet for fans, honing their skills and producing passion projects that pay tribute to their favorite games. But, a crucial question often arises: can fan games be sold to the public?
While creating fan games can be done through lawful and genuine motivations, the legality of selling fan games is a tad more complicated. In most cases, it’s generally illegal to sell a fan game, as creating, distributing, and promoting an unauthorized copy of copyrighted work is a violation of the copyright owner’s intellectual property rights. This does not, however, negate the fact that some form of creative work can, under specific circumstances, become public domain.
Copyright Law: A Pre-Requisite
Before understanding whether selling fan games is lawful, it’s vital to grasp the fundamental premise of copyright law. Under Section 102 of the US Copyright Act, it’s illegal to reproduce and distribute copyrighted material without express authorization from the copyright owner.
What Constitutes Copyright Infringement?
- Derevesative– Original characters, plotlines, artwork, or music; this is not allowed due to copyright protection.
- Direct copying or verbatim copying of parts or elements, is not permitted.
Partial Remakes: Taking or modifying copyrighted elements may be acceptable within reason, under the framework of fair use.
In instances where copyright infringement involves sale and commerce, potential perpetrators are subject to legal reprisal. Both sellers and buyers contribute to the violation, exposing both parties to legal threats. In most cases, creating, distributing, promoting an unauthorized copy of the game, is infringement, regardless of whether selling fan games or not, resulting in potential legal reparation.
Fair Use Exemptions
Exception 1: A ‘transformative work’; e.g., a short game based on a Transformers** game becomes something new and distinct
Exceptions 2: Using protected elements in a humorous satire. Example: Fan parodies or spoofs with new art and no copyrighted material, are mostly OK.
What makes fair use exempt? – Ask yourself these questions to identify whether a work ‘adds something new and has changed the nature of original:
• Nature of the work modified to become more than criticism, parody , or comment
• Significance or creativity in the derived work
Table summarizing the Legalities around selling fan games
| Selling Fan Games | Condition/Consequence |
|---|---|
| Permitted | Original Characters; Public Domain; Original Copyright Holder permission |
| Partly Permitted (in Fair Use) | Minor changes, transformative derivative |
| Prohibited/Forbidden | Copying from source, using copyrighted components (music, art etc., commercial intent |
Remaking or Revamping Public Domain Work
• Derivatives from Public Domain materials: Original work allowed due to copyright expiration (typically expires 95 years ); derivative works can proceed but be carefully scoped.
• ‘Modified’ original work should contain no copyrighted information
Selling Commercial Versions
If you cannot guarantee your work belongs in the public domain (research before creation) then there is a need to secure permissions prior to distribution and sale!
While selling fan games poses inherent legal risks, exceptions arise under specific circumstances (transformation, original artwork, or modified materials). Emphasis is crucial ; sellers and creators must evaluate intellectual property rights before proceeding; respect copyright law and creative control. Remember, any violations may result in litigation or penalties.