The Digital Lycaeum: Legality of Fan Games
Over at The Digital Lycaeum, Browncoat Jayson has posted a new entry in his Ultima Game Developer series, this time examining the legality of fan games and remakes. It covers a number of issues, including the contentious matter of the distribution rights for Ultima 4, and does so in a very even-handed and accessible way. Jayson, it seems, has a keen talent for distilling complicated legal concepts like copyright into plain language.
Even his opening paragraphs very nicely and handily summarize the basic relationship that EA has had with the remake community since…well, since ever, really:
Electronic Arts has allowed numerous fan games to release, free of charge, including remakes of their existing games. However, they have never GRANTED permission for these games, as that would imply some legal relationship that they cannot afford to see exist. So fan games exist in a sort of “grey area”, neither actively encouraged nor purposefully destroyed. That is a big difference over some other game studios, who guard their intellectual property from even their own fans.
What does this mean for those of us who are creating Ultima-style games? For the most part, we are lucky to have as much unofficial support as we do. The Internet is rife with examples of game studios who have sent Cease and Desist letters to fans who would rerelease, upgrade, or offer mods to their games. EA, on the other hand, has allowed projects like Lazarus, the Ultima 6 Project, Exult, and Pentagram to build up around the Ultima series.
However, that does not mean we are free to do whatever we want with these games.
This really is a point which bears repeating, often: the fan remake community, and sites like this which chronicle its progress and host or mirror its output, would probably not exist if almost any other company apart from Electronic Arts were in charge of the Ultima IP. Indeed, we are fortunate that those within EA who are most directly involved with all things Ultima see the community, and sites like this one, as resources rather than rivals.
But as with anything, it behooves us in the fan community to enjoy this perhaps unique position and relationship with a measure of responsibility and, yes, humility.
But I digress. Give Jayson’s article a thorough read, Dragons and Dragonettes…especially if you happen to be involved in some manner of Ultima-inspired development. Jayson offers advice on how to insulate yourself from committing copyright violations that would attract legal attention, and even gives some tips on how to proceed should the dreaded “Cease and Desist” notice arrive in your mailbox one day. He also notes that a “C&D” doesn’t necessarily need to be a death sentence for your passion project, which is (I think) a very good fact to commit to memory.
This kind of thing doesn’t just involve EA, or Ultima.
Activision has been more active C&D-wise, but I think the negative publicity they got over the Silver Lining has made them a little more reluctant to do that (good thing too, seeing as there’s been a spate of Space Quest games lately!).
Yeah, I’ve been enjoying the Space Quest II remake and Space Quest: Vohaul Strikes Back the last few days. They both feel very professional, and they’re both a LOT of fun.
I just wish SQII had better voice acting, but still, I recognize that finding good voice actors is damned hard when you have a game budget of $0.
I think the least friendly company of all has to be LucasArts. They’ll shut down anything!
And let’s not forget Ubisoft’s tendency to crap all over fans of their games. (They’re a bit worse to the ones who try and mod same.)
+1 Respect awarded to EA.
Under some circumstances, I understand why they (gaming companies) would go after some fan games. But for the most part they are over looking the win / win these games provide them. Positive contribution to their lore / game play. A endless supply of resources to draw from if and when they decide to publish the title themselves. Plus an outlet for fans while they wait. (keep us looking forward, instead of backwards)
I knew EA didn’t aggressively go after “fan” games. Just look at the amount of UO freeshards. As much as i dislike the attitude of EA execs. This alone is why i just grumble when purchasing their products. I will not buy anything from companies like LucasArts.
I once read a scroll that said “Ye read, ye move” and teleported you. A “Ye sue, ye suck” scroll should be a red flag to a consumer.
EA may be a kind beast, but saying “But as with anything, it behooves us in the fan community to enjoy this perhaps unique position and relationship with a measure of responsibility and, yes, humility,” is a bit much.
Aggression, including unspoken intimidation, should be answered not by humility but necessary action to stop it. EA hasn’t been aggressive, but if they decide to be, what will we do? Bow to the law perhaps, whatever it happens to be at the time? We’d be playing Blackthorn’s part if we followed so blindly. Maybe the cause is just, and it’s just a big misunderstanding because someone claimed Ultima influence and then made millions of dollars from their game? IP suits and DMCA takedowns (intimidation) are par for the course for most companies of any real stature these days. They all leave a bitter taste.
If EA decides to be aggressive, it’ll likely be the end of this site, for a number of reasons (not the least of which is that I’m not going to bankrupt my family & endanger the welfare of my kids fighting a costly legal battle, especially an unwinnable one.* Fighting & dying for one’s principles is noble, but only insofar as one doesn’t cause collateral damage to others in doing so.).
Look…the reality is that this community exists in this very public, very open form because EA lets it exist that way. The projects and patches I host and link to exist because EA has decided to let us devoted fans be just that.
To take but one example, Beautiful Britannia is not so different in scope from that Rainbow Six graphics mod that Ubisoft killed last year. EA would be within their legal rights to order that project shut down…but they conspicuously choose not to take that action because at all levels of the company there are people who realize the value of devoted fans like us. They love the fact that these games are still being played & even improved. They love the fact that GOG just sends people here now when they get asked about patches for the Ultima games.
And there’s guys like me & LOAF, who keep in touch with guys at EA and have real dialogues with them about these sorts of issues when they do crop up. That serves a twofold purpose; I can plead on behalf of different projects, and they can communicate legal concerns to me that I can use to advise project teams with. That’s a great — perhaps unique — relationship, one I very much enjoy seeing continue because of what it means for this community.
And you know what? It’s worth it, because of that, to not go out of our way to poke them in the nose. We’re given a lot of freedom & license…it’s good, prudent sense to not abuse that. Because really, they could take all this away if they ever wanted, and there would be no way to fight that and win. The law is not on our side, should it come to that.
* though it would be a factor, this is not the only reason I’d close the site. Just FYI.
I wonder what poking them in the face would consist of. I don’t think EA should be provoked, because they don’t deserve it right now. I see no reason for ill will, especially in light of the recent Ultima announcements and rumors. Garriott had his chance and blew it. Now he must make amends.
I agree with all your points, but “fair use” type issues are falling on one side of the knife these days. EA has every right to defend their legally acquired IP, as do their shareholders, customers, marketing partners, etc. I’m not contesting the legality, but the fundamental sense of it. If the franchise isn’t being bastardized or exploited, no harm no foul. Friends could even throw some dough their respective ways as rewards for the common good and general welfare (EA and relevant BioWare studio included).
I’m just tired of hearing stories about tens of thousands of individuals being sued and even more DMCA takedowns being initiated and executed without due process under the host ISP or host government. If EA is just chilling, God bless them. If they start acting crazy when an actual product hits the market, God damn them. I know, harsh language, but it needs to be said. The fans aren’t just a bunch of pussies; we’re serious about the game and want it to go on in any incarnation possible, legal or otherwise (lawful people excluded, of course).
I think the only thing that’d make EA go crazy at this point, would be if we started distributing the actual games themselves illegally or source code of old games and such.
To be fair, most publishers tends to be okay with patches and mods made by fans, because in the end you still need the game to make use of it (the Rainbow Six case is thankfully more of an exception).
It’s when you get into remakes or fangames than things can sometimes get nasty. I mean for instance LucasArts has shut down some projects sure… but they never went against ScummVM or that Maniac Mansion. There was the whole Silver Lining thing with Acvitision, but since then they allowed remakes to be made, even granting an actual fan license to AGD Interactive for KQ1&2 (my understanding is that they almost got included into an fficial compilation as well!)
I’d say for the most part, publishers seems to realize it’s not a good idea to piss off their fanbases, so they let these things be created as long as no money is made off them or there is no illegal distribution of already existing games.
+2 respect awarded to EA and those who have dialogues with EA. I don’t understand why some companies seem to embrace alienating the fans/customers.
I wonder if a major reason that older IP isn’t licensed (for remakes, sale on GOG, etc.) is that the current ownership status is murky. It may be unclear who actually owns some of these items. The ownership of Tetris has been disputed and the subject of litigation. It may not make financial sense to risk litigation over properties which are not expected to be big sellers (unlike tetris).
I also wonder how the use of helicopters in Battlefield 3 will be resolved:
http://kotaku.com/5874076/ea-invokes-first-amendment-protection-for-video-games-in-trademark-dispute-with-helicopter-maker
http://techland.time.com/2012/01/20/kid-recreates-skyrim-on-ti-84-graphing-calculator/
Bethesda have given this one publicity on their Facebook page and Twitter feed. Some companies would’ve been utterly ridiculous and shut this kid down for something as basic as this.
Bethesda are cool, too, as far as game mods and such things go (the MW2011 controversy nonwithstanding). This is a bit more differenter than a straight-up mod, but I suppose doesn’t technically qualify as reverse engineering.
And frankly, I would imagine that Bethesda are amused as hell that someone could create so reasonable an approximation of their game as to merit being called by the same title…on a TI calculator!
Perhaps it’s penance for their bullshit lawsuit with Notch.