Remake a game that its original developer and publisher enterprise no longer exists

Hi, community! I want to ask you something I'm not so sure. I want to make a game based on other game that the company that developed it and the publisher company no longer exists, they closed due to bankruptcy. For the moment, I don't pretend to use the same graphics, maybe some sounds, but no more. The game will be made from 0. Anyway, history will be the same, also, some environments, 3d models, etc. I want to know if I am infringing copyright when doing this. Or are they no longer valid when the company disappears?

 

I’m not sure if it’s still be the same now but you might want to look into how id aquired Wolfenstein from a defunct company.

 

Just because they closed due to bankruptcy does not mean the rights they own have gone away. In fact, it is highly likely that those rights are now owned by someone else, such as one of their creditors.

It is also quite possible that some of those rights were only for that game and still reside with the original artist.

All this means that you have no more right to use those sounds, environments, or 3D models than you would from a Nintendo game.

If you want to build a game, free or paid, use ONLY assets you have the rights to use. There is no shortcut.

 

Thanks for your reply. I don't plan to use 3d models or sounds from that game. I plan to make something similar. The story of the game will be the same (quite modified), the missions, etc.

 

Where can I found that information?

 

Remember, that history was written by a bunch of writers who due to the bankruptcy now own the rights to the material they have written. If you use their history, then you are violating their copyright. If the material was ever released to the public, it has a copyright.

Make your own history. Many games have similar backgrounds so it is not hard to find your own niche in that sea of game lore.

As a writer, I would be very upset if I found any of the game lore that I have written in some else's game, even if the game I wrote for never was published. In fact, that did happen..and I retain the rights to my work. I have it published so that no one can ever take it without me being able to uphold my rights in court. I also have in writing the rights to the others who worked on my team....I was the lead writer. Anything we could not get, such as the inability to contact some of the writers, we would not use.

So unless you contact the writers and the developers and get in writing...and something you can use in court, then I suggest you find your own game idea and do not steal from others.

Art, written lore, etc., is all copyrighted and yes, you will infringe on their copyright if you use their material without written permission. There is no expiration, company gone or not.

BTW, I did have someone contact me and they were fishing around trying to find out if they could use our work from a defunct game. I told them that we had legal rights to the lore and that they could not use it and that we would defend it in court.

Even if you cannot find such work published because the website was taken down, it is out there somewhere in the world of the web. It never goes away. Besides, obviously it is published or you would not have it.

Stay away from other people's work without their permission.

Oh...and if you ever publish work belonging to others, it would not be hard for the original owners to have Steam or whoever take it down. All they have to do is prove it was theirs, and certainly not hard to do if they have records or published examples.

 

I'm not lawyer, but I would think it's also very important to not release your game with the same title as the original. Someone likely owns the trademark and I would guess that the title, of all things, would probably be the easiest thing to identify and defend in court.

 

I have experience with this. I'll be back in about an hour and a half and I'll tell you all about the nightmare that is trying to find copyright holders and properly license things.

 

If you wanna make your own version of a game/franchise that's no longer around, I'd recommend making a spiritual successor. For example, if you wanna make a game that's like Mario 64, there's nothing stopping you from making your own 3D platformer with similar mechanics as long as your story, setting, characters, etc are all original.

 

OKAY SO. As somebody who has tried to license a couple works, both local and international, a couple of things:

1. If the copyright exists in limbo, as is possible that it is what is known as an orphan work. Orphan works have all sorts of legal nonsense attached to them, so make sure you search for what the status is in the country where this stuff would be filed. If it's America, you're kinda S*** outta luck. If it's Canada, the EU, or Japan, you can usually find some state run licensing to help you out.
2. However, even if you're dealing with something that is an orphan work, you need to do your due diligence. Find the creator if possible. From there, try and figure out who the current rights holder may be. This may end up being a major company like EA or Activision, which means the odds of you being able to do anything with the property is slim
3. If you're lucky, the rights holder may be the original creator, and this is probably the easiest option. If you can demonstrate to them that you're not a total clownfart and that you intend to treat the thing with respect, many creators can be amenable to licensing something

Really though, there's no way to get through this sort of situation without doing a fair amount of work. Good luck

 

And do not just stop with the original creator. Find out who else worked on the project. In our case, we signed a contract when we joined the team that said if the game did not come out in 10 years, then we retained ownership of our work. So if you just contacted the original creator, who actually left our game and turned it over to someone else, then you will still be liable if you use the material from the lore and history. I still have my contract too.

If the original creator says yes, and a writer like me sees our work in another game, it will be us you will have to deal with, not the original creator because he no longer owns the rights.

So be careful. It is so much better to change the story, change the history, change the lore. Be creative, make it your game and save yourself a lot of headaches and trouble.

 

Slight clarification here. Material does not need to be released to the public to have copyright. Once material is created, copyright takes effect immediately and automatically.

You can't copyright material that hasn't been created. But once material is created, even if you never share it, you have copyright.

 

Thanks to all. And what happens if a say in the game that is a "parody" or a fan make? And give original authors credits?
@Kiwasi @Teila @Murgilod

 

You need to still get permission. Giving them credit only works if you ask first. In the US at least, parodies are protected but...that is only if the person/people who own the original works are considered public figures. So you could make a parody of Trump and get away with it, but you cannot make one of me, as I am not considered a public figure.

As for a parody of a game, it is a very thin line. If the game no longer exists and you steal the material and make it a parody, they could very likely still make a copyright claim.

But if you are going to all that trouble, just make your own game! If it is an indie company, leave them alone!

 

Yeah, I know that I should just make my own game, but the game I'm talking about marked my childhood and a remake could be cool. And the end of the story is open as for a sequel. A second part would be great.

 

Genuine parody is allowed. Parody is basically mocking the original work.

Doesn't make a difference to the law.

Doesn't make a difference to the law.

 

I am doing something similar right now. It seems the original developer folded, and to get the rights you would need to convince the previous owner to restore the bankrupt company, reappoint the previous liquidator, then offer to buy the code/etc from the restored company, or something equally insane.

Instead I am just using a few sound effects while it's being prototyped. It also has a new name/style and will be much better. It's now a spiritual successor.

 

But...there are very strict rules for considering something a genuine parody. This guy already says he wants to use the history and lore and art, etc. That does not a parody make. A parody makes some kind of critical statement of the work, makes fun of it, and it uses it's own art. So if one were to make a parody of Pokemon, they would make their character sort of look like Pokemon but not enough to infringe on the copyright. If one were to steal the background story of a game then again, they would have to change it enough and make some sort of critical parody of the story. If one wanted to parody Harry Potter stories, they would have to change the setting, the characters in the setting, and the story of the evil entity that is going after Barry (not Harry of course).

One cannot copyright an idea. So you could copy the game elements in your own story, your own art, and your own characters. You could have a similar combat system, similar dialogue system, etc. The line is very thin.

Seriously, you can ask here all you want but none of us are lawyers. Plus we are all from different countries. Kiwasi is from Australia so really cannot give you advice about the US or EU.

Make a document with your idea, sketches of your artwork, story, etc., and take that along with a detailed description, pictures, etc., of the original game. Take it to a lawyer. Since you DO want people to play your game someday, better that you find this out now rather than months and months and months of making a game and having it taken down. Even if the company that still owns the rights or individuals who own the rights does not notice you, it only takes one huge fan of the former game to make a big stink on social media.

Get a lawyer. Legal advice off forums or Reddit or FB is a bad idea.

P.S. I still get emails/skype messages from people who see a game similar to the one that I worked for long ago, the one that lost funding. They often contact me to tell me someone is stealing our game. LOL So yeah, diehard fans may want to see sequel but they want to see it from a AAA company that can make the game how they have always wanted it to be, not from some indie.

 

Also note that "parody" is an affirmative defense. It is not going to help you until you're already in court and trying to prove that you used the material for genuine parody. That means money, lawyers, time, and more money. It is just not worth it.

 

https://en.wikipedia.org/wiki/Dumb_Starbucks

 

The problems will start if you start to actually make real money on the project. Than all of the sudden all those copyrights holders that were not interested in your little game will want a piece of the cake

 

It sounds like you really liked the story. Which like everyone else is saying you don't have the right to use, and it can be more trouble than it is worth.

But a great story is never really just the story. It is always the product of great writing, and maybe that is what you really want the most. A great writer. Why not find a writer that you like to work with, or learn more about what makes good writing and what makes a good story.

It is possible that your clinging to that game, and missing that it had nothing to do with that game. It was certain writing tactics and techniques deployed by a pro that always pushed all of the right buttons. Why not learn how to do that?

 

Also, there are some great books on writing for video games. Check Amazon or your book seller of choice.

 

Trademark and copyright are essentially unrelated. Think helicopters and airplanes, they both fly, but under very different principles. Trademark law does not allow for parodies. Copyright law does. Which is why the parody of "Star Wars" is "Space Balls", not "Star Wars the Parody".

Anyone interested in skirting the edges of IP law really should learn the difference.

 

This is terrible advice because copyright holders often do shut down entirely free fan made projects.

 

Even if you can get access to the IP, that doesn't mean that what you make will automatically be as magical as the original. IP isn't what makes something good, it's the creators.

 

Indeed, and that dumb starbucks ended up being a performance art piece rather than a real business. Which really does fit in that context. Had they continued and tried to create a chain, you can bet it would have ended pretty quickly. It's still all civil, so whichever side you would have to argue and prove your case, there isn't simple hard and clear rules. Going down the parody really isn't a safe or smart move if you are really just making a commercial product that is in business as the original.

 

If not then they surely will when you start making money

 

All things are by default copyright, and it doesn't matter if company is alive, dead or whatever and it doesn't matter if your rip off clone is free or whatever. The entity that currently owns the copyright - whatever that may be - is legally allowed to destroy you if you use it without permission.

If that sounds serious, it's because it is. It's this little thing called law.

Do a similar game and it's fine. For example there's soulslikes, roguelikes, etc - none of these use anything from the games they're inspired by.

 

Which is actually a great example of the limits of parody and how from the outside we don't always realize what has gone on behind the scenes. When Mel Brooks made "Space Balls", he got permission from the rights holder. They did grant him permission, but one of their requirements was that there would be no merchandising whatsoever from the "Space Balls" movie. This is why you never saw any of the merchandising they joke about IN the movie actually for sale in the store.

That information comes from an interview Mel Brooks gave about "Space Balls".

 

However game mechanics are not copyrightable, a modern example of this is the Battle Royale genre. That's why we have genres games with the same mechanics but different styles or plays on those mechanics.

If you love that game enough to want to recreate it think about what about it's game genre type and game mechanics you love and what modern versions of that genre have added then make your game based in that genre.

If it's an older game there are probably a lot of things the game developers could not do then due to hardware limitations that could really add to the game and are available now e.g. art/graphics, sound, physics and effects.