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Copyright Rules

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Anonymous

Hi guys, I am glad I found this website! Very informative.

I have a question regarding copyright. I am working on some Lord of the Rings games like crossword puzzle/card games and a boardgame for LOTR. I am wondering if I made the game (very small print run) and gave away copies (not selling), could I be held liable and sued??

Anonymous
Copyright Rules

Welcome!

Your question deals with the use of intellectual property. I'm not sure where you live, but I'm pretty sure that all Lord of the Rings properties have had their copyright renewed in most countries, which places significant protection upon them.

Even still, there is a certain degree of "fair-use" which may be applied to intellectual property. If you were writing a review of one of the LotR movies, you would be free to use the title and names of characters within the stories without any fear of reprisal. Your use (note: I am not a lawyer and this does not constitute legal advice) does not fall within the realm of fair use.

You are free to do whatever you like for your own purposes regarding the material, but when you distribute to others (even if it's free) you get into murky territory.

Does that mean that you're stuck? I doubt that Tolkien Enterprises would take notice of an individual making a small run of a game using their intellectual property. That doesn't mean that they won't and that doesn't mean that they wouldn't have a cause for action if they did, but there's a good chance that there are other much bigger fish that they're more concerned with.

RookieDesign
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Copyright Rules

There's a question to be asked.
What is the cost of your mischief. The judge will evaluate how much money the Tolkien enterprise loose by your action.
My guess is that won't be much. Unless the judge impose exemplary damages, it shouldn't be that much.

When you launch a civil lawsuit, you must ask yourself how much damage I receive and is it worthwhile. Your mischief won't justify hiring a lawyer.

In the USA it's easier to lauch a civil lawsuit than Canada even if the cause isn't worth it.

Zzzzz
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I have to agree with the others, whenever you deal with outside companies rights, it gets very murky.

But on the bright side, if you can afford it, having Tolkien Enterprises sue you could bring a lot of free publicity and maybe help to get your products picked up by a bigger publisher.

Anonymous
Copyright Rules

I appreciate everyones input in this matter. The reason I am doing this is for fun, not profit. Here is some more information:

I plan on using character names from Tolkiens world and perhaps using pictures from the LOTR movie as graphics for the box, etc. Game will have an extremely short print run (10-50) and will be given away for free (no profit for me). It will become a rare collectible someday :-)

Anyone have more input about this?

VeritasGames
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RookieDesign wrote:
There's a question to be asked.
What is the cost of your mischief. The judge will evaluate how much money the Tolkien enterprise loose by your action.
My guess is that won't be much. Unless the judge impose exemplary damages, it shouldn't be that much.

Under U.S. copyright law the holder of a registered copyright can sue for statutory damages. Those can be quite high. They can also tag you for trademark infringement.

Don't distribute a Tolkien game without permission.

You should be able to convert your game into a game with a Tolkien-like feel using generic fantasy elements. You likely won't get sued that way.

Quote:
Your mischief won't justify hiring a lawyer.

Tolkien won't hire a lawyer. They have lawyers on staff. You may just get a cease & desist notice if they notice you. But unlike copyrights, they have to more aggressively pursue people who damage or misuse their trademarks or the trademarks fall into the public domain.

On clipart.com, RPGNOW.com, and at fontcraft.com you can find tons of fantasy art for cheap. Use that stuff and change the names.

Or else, contact Tolkien enterprises and get a low cost license or some form of free permission. You might be surprised. Maybe they have simple licenses for such purposes precisely so that they can take care of fans instead of having their trademarks abused outside of their control.

Anonymous
Copyright Rules

VeritasGames wrote:
Under U.S. copyright law the holder of a registered copyright can sue for statutory damages. Those can be quite high. They can also tag you for trademark infringement.

And also keep in mind that you are not structured to limit your personal liability as you would be if you were producing the game under the protection of an LLC or other pretective business structure. You would be personally responsible for any judgements against you.

You're up against companies that have vast amounts of money (thanks to the hugely popular movies) and entire teams of lawyers. If you use images from the movies, then you're not only facing the possibility of lawyers from Tolkien Enterprises knocking at your door, but lawyers from Wingnut Films and New Line Cinema as well.

Quote:
You should be able to convert your game into a game with a Tolkien-like feel using generic fantasy elements.
...
Or else, contact Tolkien enterprises and get a low cost license or some form of free permission.

Some great ideas! If you're desperate for a Tolkien theme, then write and ask. If you haven't already distributed anything, then the worst they can say is no. At that point, a generic fantasy theme would be the best fit.

Best of luck to you!!

RookieDesign
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VeritasGames wrote:
Under U.S. copyright law the holder of a registered copyright can sue for statutory damages. Those can be quite high. They can also tag you for trademark infringement.

Good thing I live in Canada.

VeritasGames
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RookieDesign wrote:

Good thing I live in Canada.

I'm not certain if Canada has statutory damages for copyright infringement, but I wouldn't be surprised if they did.

Moreover, both nations have reciprocity agreements, so if you send one of your copies over the border you can probably be sued in the U.S. under U.S. law.

Damages are still up to the judge even under the statutory rules, however, statutory damages can be awarded even if you can't prove a specific dollar loss of damage. So, when somebody distributes a PDF RPG using LOTR characters, and does so for free, proving specific damages can be tough. However, if the guy has his copyright registered he can wallop you for lots of dough if you are found to be infringing.

Like I said -- just ask for permission or tweak things so as to be generic.

Anonymous
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Guys, thanks for the responses. Its incredible that just giving away a game for free, companies can sue me, etc.

phpbbadmin
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...

mkman wrote:
Guys, thanks for the responses. Its incredible that just giving away a game for free, companies can sue me, etc.

This just struck me last night, but one of our members, Keith Myers, actually designed a Tolkien licensed game called The Hobbit. Perhaps you could contact him and he could give you some more specific advice.

-Darke

RookieDesign
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Copyright Rules

Will it be the same for a demo.

I'm making the demo for myself. I'm the owner of the game. I could send it for review to an editior, but I never give the game to him.

Just another idea.

Anonymous
Copyright Rules

As long as you're the sole owner, and your use is limited to your own personal use then you wouldn't have problems. Sending a prototype to a publisher (whether or not you get it back) isn't the same as publishing and distributing copies of the game. A submission wouldn't (as far as I can tell) expose you to any legal action.

The funny thing is, I can image that Tolkien Enterprises actually want game designers to create games based on their properties. The more the merrier. The only thing that we as designers have to do is to ensure that we're following the rules for proper use of their property. That is, create and submit a design with no fear of legal recourse. Then, if the game design is published, whoever is doing the publishing (whether it's a game company or an individual) is legaly responsible for securing the proper permission and paying the proper royalties. Then everyone is happy!

VeritasGames
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mkman wrote:
Guys, thanks for the responses. Its incredible that just giving away a game for free, companies can sue me, etc.

Why is it incredible? If they couldn't, then you could photocopy their games and hand them out and cheat them out of profits.

Similar principles would come into play.

Anonymous
Copyright Rules

Quote:
If they couldn't, then you could photocopy their games and hand them out and cheat them out of profits.

Isn't that why we have 4 billion kinds of Monolopy? :)

Actually I used to belong to a club in college that a guy used to do basically just that. He would borrough games (from the club or other members), photocopy everything and sell them if he could. Needless to say, the guy was really shady. I think he got kicked out, and I don't think anyone liked him much either.

Anonymous
Copyright Rules

You're being kind by calling him shady!

It's pretty much up to game designers to look out for our own. If someone is ripping off a big name game, there's no reason why they wouldn't rip off a game that one of us put long hours and a lot of money into producing!

VeritasGames
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SimonWaltr wrote:
Quote:
If they couldn't, then you could photocopy their games and hand them out and cheat them out of profits.

Isn't that why we have 4 billion kinds of Monolopy? :)

There are several differences. First, people don't copy the exact art on the board via competing versions of Monopoly like they do with photocopying. Second, the core concept and name "Monopoly" is in the public domain if I'm not mistaken (see the Anti-Monopoly legal case). Third, even if there had been a monopoly patent it would have expired decades ago.

Producing games with mechanics similar to an unpatented game is perfectly legal. Photocopying somebody's game for distribution lock, stock, & barrel is very illegal in most instances.

Anonymous
Copyright Rules

I'm not a lawyer, and this is in no way legal advice.

Wait, from what I know companies actually don’t mind giving you a license to use their "property" as long as you pay them a commission of a specific % of the earnings.

If you go through with it I would see you needing a license. Licenses are usually lengthy processes, if the company is used to giving out licenses they will pull out a standard contract and within 3 months Walla.

If not it could take longer.

Any way you have to decide if it is really worth it if profit is not in your mind, and if you decide it is you will definitely have to talk to a lawyer at some time or another.

Hope I may of helped a little,

Aaron l

Anonymous
Don't take the chance. Really.

Re: "I'm glad I live in Canada"

Any court in Canada will uphold U.S. Copyright law because both countries are members of the Berne Convention for the Protection of Literary and Artistic Works.

You can see this online at www.wipo.int and can actually look up Canadian copyright law at http:laws.justice.gc.ca/en/c-42/ (the Canadian Dept. of Justice's copyright act).

Regarding the original question - you should be aware that wilful disregarding of copyright (which in this case would qualify since you know that you'd be in violation and have admitted it publicly) is actually a crime and can result in a substantial penalty in its own right (i.e. the statutory damages mentioned earlier) that can be up to $150,000 per instance plus attorney fees. This can be seen at www.patent-ideas.com/cinfringement.htm

In short, I wouldn't do it unless you can get a legit license. These statutory damages have nothing to do with whether you are charging for the game or not. I'm not trying to be mean, but if they decided to come after you on this, you have already made their case for them by asking about it here.

I always play it safe when it comes to Intellectual Property.

(I'm not a lawyer either. This is all given as information and not advice.)

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