Kickstart Wars, Episode I: A New Infringement

By now you’ve likely heard about a Kickstarter campaign started by an impossibly optimistic 20 year old named Devin for an open world RPG set in the Star Wars universe. The ambitious Kickstarter campaign went viral almost immediately, and while that’s normally a great thing for the average crowdfunding campaign, in this case it probably just means that the whole thing will end up within range of the Disney/Lucasfilm legal department superweapon that much sooner, and it’ll take more than Devin’s adorable naivete (or trolling, maybe?) to stop it.

So, if nothing else ends up coming from this particular campaign, it does at least give me the opportunity to consider some commonly asked legal questions.

Can Anybody Make a Star Wars Game?

No, obviously. Or, to be technically accurate, anyone could make a Star Wars game, but that game would be a derivative work that would infringe the copyright on Star Wars – unless said game author either held the copyright on Star Wars (i.e., Lucasfilm Ltd. or its owner The Walt Disney Company) or had a license to create that kind of derivative work from the copyright holder.

To Devin’s credit, he does seem to understand that he will need Disney/Lucasfilm’s blessing to fully realize his goal. His Kickstarter campaign description clearly states that “Disney has no part of this as of now,” and that he is “currently looking into talking with Disney if [he] [is] able to do this. If not then there might have to be a compromise on the name or some other parts.” Unfortunately for Devin, that compromise would have to be on more than just the name – he wouldn’t, for example, be able to make this fabled open world RPG with Jedi, Sith, the Force, and lightsabers merely by calling it something other than “Star Wars.”

To avoid copyright infringement, his game would have to avoid using any copyrighted elements from the Star Wars universe (which would make it difficult to make a “Star Wars game”). Of course, this wouldn’t stop Devin from making an open world RPG in a sci-fi setting, with starships, lasers, aliens, etc. But he would be in trouble if he used any elements lifted directly from Star Wars, and the closer he got to that line, the greater the risk of running into legal trouble. (The exact line of what is and isn’t okay to use would theoretically be determined by a court and multiple lawyers during a copyright infringement litigation.)

But What About Fair Use?

Under the fair use doctrine, certain uses of copyrighted works (that would otherwise be infringing) are allowable without the permission of the copyright holder. However, fair use is not a black and white doctrine – a balancing test based on four factors is applied on a case-by-case basis. There are no magic words you can slap on top of your work to absolutely ensure that it is covered under fair use, but based on the four fair use factors, there are definitely works that are much more likely to be considered fair use than others. The four factors are:

1. The purpose and character of the use. Educational uses are more likely to be considered fair use, and uses for the purposes of parody/satire are often protected as fair use. Commercial uses are going to be less likely to be fair use than non-commercial/not-for-profit uses. But note, just because the use of a copyrighted work is not for profit (e.g., is being sold at cost, or being freely distributed) does NOT make it automatically covered under fair use. This comes up so frequently that I cannot stress this point enough: GIVING SOMETHING AWAY FOR FREE DOESN’T AUTOMATICALLY MAKE IT FAIR USE. *ahem* Moving on…
2. The nature of the copyrighted work. A court may consider whether a copyrighted work is fictional or nonfictional, or whether it been published or not. Use of nonfictional work could be more likely to be considered educational.
3. Amount and substantiality of the copyrighted work used. Using most or all of a copyrighted work is less likely to be fair use, but in some cases even using a very small portion of a copyrighted work may not be fair use if that small portion represents the “heart of the work.”
4. The effect upon the copyrighted work’s potential market or value. This primarily concerns whether the use acts as a substitute for the copyrighted work – in other words, are people less likely to buy the original copyrighted work (or works properly derived from it) because of the existence of this other use.

All things considered, all four factors lean heavily against Devin’s proposed Star Wars RPG being considered fair use.

He’s not proposing a parody of Star Wars (like Spaceballs), nor would he be using the Star Wars setting to satirize another subject. His proposed game definitely sounds like it would be commercial, as he doesn’t mention giving the game away for free. Star Wars is (despite “Jedi” appearing as the claimed religion on a significant number of census forms around the world) fictional, and it has certainly been published. Devin proposes a non-trivial use of Star Wars: he’s not just using one element like a lightsaber, he wants an entire interactive galaxy with as many Star Wars elements as he can cram in. Finally, while Devin’s opinion is that there has yet to be a suitable Star Wars RPG (and thus he would not be taking market share away from any other game), others might disagree.

Attribution

Note that proper attribution to the copyright holder (e.g., “Star Wars is owned by Lucasfilm Ltd., not me,” etc.), doesn’t actually have a legal effect on whether a use is infringing or not. Proper attribution is certainly a good practice to get into, but putting “I don’t own the IP rights to this, Disney/Lucasfilm/etc. does” in your game/video description does not create a magical copyright infringement shield any more than “claiming fair use” does. While attribution can be enough to placate some of the more lenient copyright holders (and is often a requirement under many “open” licenses like Creative Commons), it’s certainly not going to be enough to make a megacorporation like Disney turn a blind eye to your project.

Conclusion

Unless he actually manages to license the Star Wars IP from Lucasfilm Ltd., Devin’s proposed open world Star Wars RPG, fantastic though it may be (if he were to somehow manage to create a game on the level of Fallout 4 or The Witcher 3, with Battlefront graphics, on a budget of $200,000, in less than two years), would definitely constitute copyright infringement.

In case there was any doubt as to what’s going to happen here.

Watch out for Episode II: The Backers Strike Back, wherein I discuss the legal recourse a  disgruntled backer has against a crowdfunder who fails to deliver.