I’m not sure what it is exactly about Star Wars games specifically that makes some people throw caution to the wind and completely disregard existing intellectual property laws, but here we are, the second time in recent memory that the development of an unlicensed Star Wars video game has made the rounds on various gaming news sites.
In case you hadn’t heard, a group of indie game developers going by the name of Poem Studios has announced their intention to release “Apeiron,” a modern reboot of the 2003 Xbox classic Star Wars: Knights of the Old Republic. According to their website, they are “a group of dedicated programmers, artists, voice actors, world builders, and writers that have all come together to breathe life back into a wonderful game,” and they intend Apeiron to be “a remake and remastering of the original game with added content, new worlds, missions, HUD, inventory, items, and compainions [sic].”
And all that really does sound fantastic – fans of the original game would get to experience the game anew on modern machines, and people who missed it the first time around would get to be introduced to a classic game without having to look past the “classic” graphics and game design.
Or, rather, it would be fantastic, if what they were doing was in any way legal, and if I wasn’t fairly certain a cease and desist letter (or worse) is headed their way at some point in the future.
It seems that Poem Studios has not sought permission from LucasFilm/Disney (who hold the copyright to the Star Wars setting and elements) nor Electronic Arts/BioWare (who hold the copyright to the Star Wars: Knights of the Old Republic game). On their website, under the question “Is this legal?” the answer they currently have up there is “WE BELIEVE SO.”
I… wasn’t exaggerating. This is actually what it says on their website.
It’s safe to say they probably haven’t sought the advice of an IP lawyer. I suspect the Apeiron developers’ confidence in the legality of their project is based on a number of common myths about intellectual property law. I’d like to address a few of the more common myths here.
It’s Okay If I Don’t Sell It! I’m Giving It Away For Free!
This is far and away the most common myth about copyright infringement, so let’s get it out of the way first. Repeat after me:
Just because you’re giving it away for free doesn’t mean it’s not copyright infringement.
Just because you’re giving it away for free doesn’t mean it’s not copyright infringement.
JUST BECAUSE YOU’RE GIVING IT AWAY FOR FREE DOESN’T MEAN IT’S NOT COPYRIGHT INFRINGEMENT.
Copyright law gives the author of a creative work certain exclusive rights, such as making copies of the work, selling/distributing the work, and making derivative works based on the work. Creating an “HD remake” of an existing video game would definitely be considered a derivative work – the developers would be remaking game assets explicitly based on the original game’s assets. The right to make a derivative work is the exclusive right of the copyright holder, and the text of the copyright law makes no distinction between a derivative work that is later sold for a profit and a derivative work that is freely distributed.
This myth is often based on a misunderstanding of the fair use doctrine, which allows use of a copyrighted work without the permission of the copyright holder in certain situations. As I discussed in my analysis of the open world RPG, there are four factors to be considered when determining whether something is fair use. One of those factors is the “purpose and character” of the use of the copyrighted work, such as whether it is a commercial use or non-commercial use.
A non-commercial use is generally more likely to be considered fair use, but non-commercial use is by no means a guarantee of fair use protection on its own. The purpose and character of the use is only one of the four fair use factors, and fair use is not a black-and-white determination to begin with. A court will look at all four factors (purpose and character of the use, nature of the copyrighted work, amount/substantiality of the use, and effect on the potential market) when determining whether something is far use or not.
If you still need convincing that distributing something without charging for it can still be copyright infringement, consider one of the most common forms of copyright infringement: “piracy.” Taking someone else’s copyrighted work and making it available to the public for free is definitely copyright infringement even if you’re not charging users for it. That’s why you can’t just take someone else’s software and make it available for download on a popular torrent site, or to take entire movies or albums and upload them to YouTube. Even if you’re not making money on it, the copyright holders (and, in some cases, law enforcement) are still going to take issue with it.
I like to imagine there’s a “video game piracy” door just down the hall as well.
Also, the “I’m not charging for it” argument is often an oversimplification that overlooks all the ways people can potentially profit from copyright infringement other than simply charging people for it up front. You can make an infringing use available for free but still monetize advertisements, or solicit donations/crowdfunding, like the developers of Apeiron intend to do in the future. From the Apeiron website: “We can accept donations. However, we are not ready to open donations just yet. … We are looking to have a larger portion of the game finished and polished before there is any kind of monetary backing.”
So, if they were putting all their eggs in the “it’s a non-commercial use” basket, I’m sorry to say that 1) that’s not going to be enough to dispute an allegation of copyright infringement, and 2) “non-commercial use” pretty much goes out the window anyway if they’re going to be soliciting crowdfunding for their development.
But I Put a Disclaimer!
Some people seem to believe that certain words, when put in their YouTube video description or crowdfunding project FAQ, can cast a magical ward of protection over their project, protecting them from allegations of copyright infringement. As much as I’d love to believe my colleagues and I are modern-day wizards (I mean, Final Fantasy XIV does have a Scholar job class), the reality is that copying and pasting a few sentences found online isn’t going to do much if you’re plainly infringing someone’s copyright.
I received that same hat when I graduated from law school.
These disclaimers usually take on a few common flavors.
Attribution Is Nice, But It’s Not Enough
These are usually along the lines of: “[IP Title] is not in any way owned by me. [IP Title] is wholly owned by [Massive Corporation]” or “[IP Title] is the creation of [Talented Artist], not me.” And yes, points for making a true statement – when this shows up, typically the IP in question is in fact owned by the named company/person and not the uploader/poster, so I suppose they at least get credit for recognizing that.
However, saying so doesn’t do anything to avoid copyright infringement. The copyright law doesn’t carve out an exception to infringement for proper attribution.
It’s like saying you recognize that something doesn’t belong to you, and taking/using it anyway. “I acknowledge that this house is wholly owned by you, the owner, and I have no ownership or usage rights to it whatsoever. I’m going to live here now, okay? Okay.” It doesn’t make what you’re doing any less wrong, it just means that I now know you know it’s wrong. And that you’re doing it anyway.
The only situation where attribution would matter is if the material in question has been made available to the public under a license like Creative Commons, and one of the licensor’s requirements for use of the licensed material is proper attribution. This may the case where the creator of the work wants their work to be distributed and used by others. This is not generally going to be the case for video games based on a popular IP (e.g., Star Wars) developed and published by large video game companies (e.g., EA and BioWare).
Your Intent (or Lack Thereof) to Infringe Copyright Doesn’t Matter
“No copyright infringement is intended.” I don’t even really know what else to say about this. You can’t drive down the street in a stolen car with a sign that says “no grand theft auto intended” and expect it to mean anything to the police officers that eventually pull you over.
This is basically what the “no copyright infringement is intended” disclaimer boils down to.
Yes, a person’s “intent” is a factor considered when determining culpability for certain crimes (e.g., “specific intent crimes”), which is perhaps where this myth originated. But intent is usually irrelevant when it comes to copyright infringement.
You Can’t Just “Claim” Fair Use
This myth seems particularly prevalent on YouTube. Often a video that uses a significant part of a copyrighted work will have something in the description or in the video itself that “claims fair use.” Yeah, you can’t do that.
You can’t just “declare” fair use either. It’s not like bankruptcy.
Fair use isn’t something that you can proactively “claim” in order to get the protection of the fair use doctrine and avoid being sued for copyright infringement. Whether or not something is fair use is, at the end of the day, only decisively decided by a judge; if you are sued for copyright infringement, you can then argue that your use falls under the fair use doctrine as a defense to the allegation of copyright infringement.
The judge then considers the four fair use factors and decides that what you’ve done is either fair use or copyright infringement. Sure, if you familiarize yourself with the fair use factors, you’ll come to understand that certain types of uses are much more likely to be considered fair use (e.g., educational uses, criticism/commentary, parody) while others are not likely to be fair use at all. But being confident that your use is fair use doesn’t stop anyone from suing you from copyright infringement – it just means that you may be more likely to win that lawsuit.
I Own All the Rights to My (Derivative) Work
This one is actually (kind of) true, but with a significant caveat. Let’s say you do create an unlicensed “HD remake” of an older video game, or an unofficial fan film based on your favorite sci-fi series. You have created an original creative work that is protected by copyright. Congratulations! You do hold the copyright on your work. That much is true.
Now for the bad news: while you do hold the copyright on what you created, what you created is unfortunately a derivative work that infringes the copyright on the original, underlying work. So, you now hold a copyright on something that you can’t use without potentially getting used. (In theory, you could prevent someone else from using your derivative work, but you still can’t use it yourself either.)
Nowadays, many creative works are based on or otherwise derived from other creative works, and those copyrights “stack,” so to speak. To be confident that you are not infringing any copyrights, you have to either hold the copyright or have a license to use everything in the “stack” (or, be very confident that you could win a fair use argument, I suppose).
For example, take a look at the rapidly growing video game music industry. When Nobuo Uematsu composes a theme for a Final Fantasy game, he (or Square-Enix, probably) holds the copyright on that song. The Tokyo Philharmonic Orchestra performs the song for use on the latest Final Fantasy game’s soundtrack, and that performance can have it’s own copyright. A musically talented, enterprising fan could listen to that performance and transcribe their own arrangement of the song, and that fan would then hold the copyright on that arrangement; however, that arrangement, technically speaking, would be a derivative work that infringes the Square-Enix’s copyright on the original composition and the recording of the performance. And it can get more complicated from there – someone can publicly perform that fan arrangement of the song and hold the copyright on that performance, but unless it was licensed, that performance would be infringing on the copyrights of both the fan’s arrangement and the original song. And someone could make a recording of the performance and make a music video, etc. etc. It’s copyrights all the way down.
Copyrights on derivative works, illustrated.
It Isn’t a Lost Sale!
This one comes up a lot in “full conversion mod” situations, where a mod radically changes everything about the underlying base game but still requires the original game to run. Apeiron’s developers also lean on this point heavily, stating, “This is a full conversion refresh, that being said you will have to own a copy of the orginal [sic] game in order to play Apeiron…”
And this one at least makes sense, at least on the surface. If one of the big concerns over copyright infringement is the copyright holder’s “lost profits,” then if they aren’t losing out on any profits or sales, no big deal right?
Well, making a “refresh” or “remake” of a game is a derivative work of the original game, and making derivative works is the exclusive right of the copyright holder. The text of the copyright law doesn’t make a distinction based on whether the infringing derivative work requires purchase of the original (copyrighted) work.
This myth may come from the fourth fair use factor, which considers the effect of the use on the potential market for the copyrighted work. Uses that would negatively affect the potential market for the copyrighted work by acting as a substitute are much less likely to be considered fair use.
Under that reasoning, it’s at least understandable that some people may think that requiring purchase of the original game would absolve them of responsibility for creating an infringing conversion/refresh of a game. However, remember that the copyright holder has the exclusive right to create derivative works, and even if the conversion may not negatively affect sales of the original game (and in fact may increase such sales), it would likely negatively affect sales of a potential “HD remake” that the copyright holder may release in the future, or possibly even the sales of other games using that IP.
For example, in the case of Aperion, yes, it’s true that it’s not going to be taking any potential sales of Star Wars: Knights of the Old Republic away from EA/BioWare, and could very well increase sales if Aperion were released and became popular. But hypothetically, if EA/Bioware were planning on creating their own updated/refreshed version of the game, then Aperion would definitely be considered to be affecting those sales. It’s not out of the realm of possibility, considering how many games are being remade for modern PCs/consoles these days. In fact, mobile versions of Star Wars: Knights of the Old Republic have been released within the past few years, so the game is definitely still on EA’s radar.
EA and/or LucasFilm could even argue that Aperion, as a Star Wars RPG, could affect sales of all Star Wars games currently on the market. If people can play Aperion (for free, no less!), maybe they’d be less likely to spend money on Star Wars: The Old Republic, or Star Wars: Battlefront?
But It’s Been Abandoned
This is a common justification for distribution of emulators and ROMs of old games, or remaking games that may not have been sold for many years. Sometimes the original developer and publisher have gone defunct, so what’s the harm, right?
Here’s the thing about copyrights: they last a long time. Copyrights last seventy years plus the life of the author when the author is a person, or ninety five years from the date of first publication or 120 years from the date of creation (whichever is shorter) for works made for hire.
Video games, as we know them, have only really been around since the 1970s. This means that, unless a video game’s copyright has been explicitly released by its author into the public domain, every video game ever made still has a valid copyright on it. We aren’t going to start seeing copyrights on video games naturally expire until, oh, 2060 or so, by which time I hope we’ve all moved on to Holodecks or The Matrix or something.
But practically speaking, to be sued for copyright infringement, someone has to care enough to sue you. For many games where the original developers/publishers have gone defunct and the game is no longer being sold or maintained, it’s possible no one ever notices or cares about copyright infringement. On the other hand, many older games are experiencing a resurgence in popularity (“retro” is in these days), and many old games are available on new platforms through official channels.
The “it’s abandoned” argument doesn’t hold water any when the game is still commercially available, and that’s increasingly the case for the more popular older games. For example, many older games are available for sale on Steam (as is the case with Star Wars: Knights of the Old Republic), and many NES games are available for download on the Nintendo eShop, Also, ports of old games keep showing up on mobile platforms like Apple’s App Store and Google Play.
Other People Are Doing It, So It’s Okay
This seems to be based on confusion between copyright and trademark law. It’s becoming increasingly common knowledge that trademark holders have to take some action to protect their trademarks against infringement, or else they risk losing trademark protection on those marks (by becoming genericized, etc.). It’s a common justification for big companies suing or sending cease and desist letters to smaller companies, like when King (developer of Candy Crush Saga) wanted to stop Banner Saga from having the word “Saga” in its title.
However, there is no such requirement in copyright law. A copyright holder can choose to proactively protect their copyrights, or passively allow copyright infringement to occur without taking any action against the infringers, and it does nothing to dampen their copyright protections. A copyright holder can selectively assert their copyrights if they so choose: that seems to be the case with Paramount/CBS’s recent action against the Star Trek fan film Axanar. Many previous unlicensed Star Trek fan films have been made with no legal trouble whatsoever, sometimes even with Paramount/CBS’s knowledge, but not going after one fan film doesn’t mean they can’t later go after another fan film. Every unlicensed fan film is infringing, and it’s up to the copyright holder to decide which infringers to go after.
This is akin to getting pulled over for speeding and trying to tell the police officer that everyone around you was also going the same speed. That’s all well and good, but the police officer doesn’t have to pull everyone over, just you.
Summary
So, can you make a Star Wars game?
This GIF could function as a quick and accurate answer to many common questions about IP law.
A “modern reboot” or “HD remake” of a game is considered derivative work based on the original game, and making derivative works is one of the exclusive rights granted by copyright. Therefore, unless the creators of the remake have a license from the developers of the original game, their remake would be an infringing derivative work.
An unlicensed derivative work is always going to be infringing (unless it is ultimately found to fall under fair use), regardless of whether or not the infringer charges money for it or releases it for free, whether the infringer properly attributes the original creator of the copyrighted work, and whether or not the derivative work requires purchase of the original copyrighted work.
Fair use is determined on a case-by-case basis – there are factors that contribute to certain uses being more or less likely to be fair use, but ultimately the only way to conclusively know whether a particular use is fair use is to bring the case before a judge.
The Geek Law Journal 