It goes without saying: profiting on a fan game that uses trademarked material is probably a bad idea. However, what many people do not know is that you may get into a lot of legal trouble even if you release your fan-game for free. This is exactly what happened after the long-awaited fan-game Pokemon Uranium was released and was almost immediately taken down after several notices and warnings from Nintendo.
According to a recent Kotaku article, a team of developers who wanted to release a free fan-sequel to Nintendo’s Mother series called Mother 4, have decided to remove all Nintendo branding and references from their game as preventative measure. The game’s name, as well as references and characters from the Mother series, will all be removed to prevent the game from being taken down from Nintendo like many others have in the past.
However, Nintendo is not the only company who is adamant about protecting their brand. When big Youtuber Jordan Maron (also known as CaptainSparklez) was leading the development for a mobile game called Fortress Fallout, Bethesda promptly sent him a cease and desist letter over the word “Fallout” being used in his game’s title, despite the game having no connection the series.
“Our lawyers said that Bethesda is a notoriously litigious company,” Maron said, “meaning they do not hesitate to file a lawsuit against people who they feel are infringing on their trademark. Obviously, they have lots of money and resources at their disposal which we don’t really have at the moment. We are being strong-armed into having to change our name, which is unfortunate because I personally don’t see how there is any confusion between Fortress Fallout and the Fallout games.”
Maron’s decision was to rebrand his game as “Fortress Fury” after conducting a public vote for the new name from his Youtube audience.
The most notable cases of fan-game takedowns all seem to end with the game being removed from the public, but that may not be the end of the story. According to Reddit user /u/VideoGameAttorney, many settlements over game copyright infringement result in NDAs, which is why we never hear of the fan-game developers that went through the legal battle and lost.
/u/VideoGameAttorney makes several important points in his post regarding fan-games:
“Free does not mean not infringing. Not charging for your game is not a loophole to not getting sued. Under statutory damages, each infringing asset is potentially $150,000 in damages. Don’t get sued into oblivion for your free fan or “parody” game.”
“Fair use and Parody are not rights, they are defenses. Nothing is either until a judge says it is, which will cost about $75,000-$150,000 on average through a small/mid size law firm. If you can’t afford that, you can’t afford fair use.”
“I’ve seen so many developer lives ruined (lost home, wife, kids, etc) all because of a silly fan game. These companies are brutal about protecting their IP.”
The safe route to making a fan-game may be one that is only inspired by the game it is trying to emulate, instead of directly taking elements. The successful indie title Stardew Valley (made by ConcernedApe) is a game clearly inspired by the Nintendo farming series Harvest Moon, but also contains no copyright infringing elements.
Another game that is currently in development called Ooblets, is another example of a game inspired by several Nintendo titles. Ooblets is being developed by a two-person team of Rebecca Cordingley and Ben Wasser, and takes inspiration from the series Harvest Moon, Animal Crossing, and Pokemon for completely original content. You can find out more about the development of Ooblets here: https://ooblets.com/.
Essentially, developing a fan game is a risky choice, and possibly an idea better left to the companies that own the trademarks. The best route may be to create original content that takes inspiration from the games you love (like Stardew Valley and Ooblets) to avoid the legal mess you may find yourself in.