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There is a browser game that I want to port the Android. The problem is I do not want to use the same image assets because of copyright violations.

Would this example be enough to prevent a copyright violation?

Original Image:

enter image description here

This is my version. It's on imgur so that it does not blend with the white background of this site.

Also this person has not seemed to put any copyright on their game.

Zizouz212
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Foobar
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    Copyright is automatic; notices are not required. – Dale M Apr 05 '16 at 00:05
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    You write that you want to "port" the game. A "port" is usually a defined as the modification of an existing program to run on new OS/hardware. Does this mean you are modifying the existing program? Or are you rewriting it from scratch? Please clarify, as this is an important point. – sleske Apr 05 '16 at 07:33
  • Note that if you want to avoid the white background you can simply use the <kbd> tag, so that the image gets a border and a more greyish background. Or just put the border inside the image. – Bakuriu Apr 05 '16 at 09:32
  • @slekse When I mean port, I mean that I will attempt to mimic the game's effects on another platform so as to get an identical game for Android instead of the browser. – Foobar Apr 05 '16 at 11:26
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    You should probably look at some of the questions on fair use - nominal use and the effect of the alleged infringement on the potential market are factors in determining whether an infringement has occurred, as well as likely or possible damages. Posting a copyrighted image without permission is not actionable per se. If the existing questions don't satisfy you, you might want to post a new question on the implication of posting content that you don't own the rights to Stack Exchange. – jimsug Apr 05 '16 at 13:09
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    There's an extremely strong case for fair use here. I imagine that a prudent copyright holder would not pursue legal action against use of a single image posted for the purpose of commentary in a way unlikely to impact the market value of the work. It is prima facie copyright infringement, so the owner has a shot, but the fair use defense here seems overwhelming to me. If you're interested in how fair use interacts with Creative Commons, see Can I release someone else's work under creative commons or some other license, if its fair use? – apsillers Apr 05 '16 at 14:31
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    Note, Angry Birds is pretty much a clone of Crush the Castle. Flappy Bird is just a clone of SF Cave. I seem to recall reading that game mechanics can't be copyrighted (though code can). If there's a game that's interesting, just rip off the mechanics, slap some of your own artwork on there (or pay someone) and make all the dollars. – Wayne Werner Apr 05 '16 at 20:30
  • If you can find a number of images from a variety of games by different publishers, such that someone who was shown all of those images along with yours would be unable to tell which one you "copied", you should be safe. I haven't looked for images exactly like yours, but it seems pretty generic so there are probably a number out there that are pretty close. – supercat Apr 05 '16 at 21:29
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    There is a truly gigantic elephant in this room. Why are you asking about copyright on one little image when you're essentially copying a whole game? – David Richerby Apr 06 '16 at 00:07
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    @WayneWerner: Actually not completely accurate, especially in regard to recent cases (triple town versus yeti town especially disproves your argument!) http://pnwstartuplawyer.com/copyright/software/copyright-illustrated-video-game-clones/ – Zaibis Apr 06 '16 at 10:13
  • Personally, unique game mechanics seem like they would fall under potentially-patentable material rather than copyrightable, unless the mechanics are intrinsically linked to the plot somehow. – JAB Apr 06 '16 at 13:37

5 Answers5

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Copyright is for original pieces of work. What you have made, is essentially a derivative work. Copyright is automatic for all things, unless the author has explicitly waived their rights, normally through a license.

What this means, is that you have created a piece of art, that has been derived from that of the original author. You made modifications to the original artwork to produce a new one. Your creation could not, and would not have effectively existed without the original. Your image has the same shape, and the same colour tones as the original, and would likely be considered a derivative work.

Since the right to derivative works is an exclusive right to the copyright holder, you would be infringing their copyright.

Zizouz212
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  • Nice answer. You might want to address the implications ofthe apparent absence of a copyright notice. – phoog Apr 04 '16 at 23:14
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    @phoog: Assuming it was created post-Berne convention, the short version is that there are no implications of that. – Kevin Apr 05 '16 at 04:17
  • @Kevin I'd say there is an implication, namely that the copyright status of the work is the default under the law. I agree with phoog that it'd be useful to mention what that status is. – David Z Apr 05 '16 at 08:13
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    The other thing is that a court of law may spend some time trying to determine whether the derivation was deliberate. The OP's just stated for the public record that it is, so that's kind of a done deal. – Lightness Races in Orbit Apr 05 '16 at 15:31
  • Phoog, Kevin, David. Yeah, I mentioned that, but it looks like I wasn't incredibly clear on that. I've clarified the first paragraph. – Zizouz212 Apr 05 '16 at 18:12
  • maybe add a TLDR of "you must change 100% of it/start from scratch" – Dean MacGregor Apr 06 '16 at 13:49
  • @Kevin The topic being a non-trivial browser game, the Berne convention being from the 19th century, and even late-adopting countries such as the US enacting it in 1989, I strongly suspect that this need not be considered. – Hagen von Eitzen Apr 06 '16 at 21:15
  • @HagenvonEitzen: Precisely my point. In the modern era there is no such thing as "no copyright" (unless you deliberately go out of your way to make it happen). – Kevin Apr 06 '16 at 21:17
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Avoiding copyright infringement is a question of "How is it modified?" rather than "How much of it is modified?". What you've created is a derivative work of the original; to decide if your derivative is a copyright infringement, you need to see if your use falls under fair use or your country's equivalent.

In the United States, fair use is determined by a four-factor test: the purpose of the use, the nature of the copyrighted work, the amount used, and the effect of the use on the market for the original.

  1. The purpose of use. You're porting a game to another platform. This use is not transformative as copyright law sees it -- it's essentially just a re-creation of the original work, which is a major strike against a claim of fair use.
  2. The nature of the copyrighted work. It's a small fragment of a computer game. None of the usual defenses for this factor (such as "facts cannot be copyrighted" or "copying is in the public interest") can be applied.
  3. The amount used. This is your biggest defense: you're only using a small fragment of the original game. Thing is, it sounds like you plan to use many small fragments, which adds up to a big problem.
  4. Effect of use on the market for the original. This is what kills any claim of fair use: you're creating a competitor for the original, with the potential effect of supplanting it in the market.

Considering factor (4), you'd better work on creating art assets for your game from scratch. Anything less is just asking for trouble.

Mark
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The problem is not with just the image.

As you have stated, you are porting a game to a different operating system. You are, basically, replicating a game without the original author's permission.

This is outright illegal. You will get a cease and desist right away when the original author founds out, and the finished product will be instantly removed by Google if the original author contacts them.

Nelson
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    You can replicate a game without the author's permission, as long as you do so without incorporating any of the copyrightable, trademarkable, or patentable aspects of the original game. Importantly, game rules cannot be protected by any of the above means. – Mark Apr 05 '16 at 08:13
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    More accurately, any of the copyrighted, trademarked or patented aspects of the game. – sjy Apr 05 '16 at 12:06
  • @Mark Could you perhaps expand on why game rules can't be copyrighted (or patented/trademarked/whatever?) This seems like useful and relevant information that should probably be in one of the answers. Maybe add it to yours? – reirab Apr 06 '16 at 00:28
  • I don't know exactly why you can't, but take a common card game for example, I can't copyright the rule "must follow suit" and then charge for royalties for every game that uses this rule. This setup seems really insane to allow game rules to be copyrighted. For a Role-playing game for instance, I can't copyright the rule "0 HP and you die". – Nelson Apr 06 '16 at 00:31
  • You can't copyright the rule "must follow suit" because it already exists. Are you sure you can't copyright a more complex rule. – Martin Bonner supports Monica Apr 06 '16 at 09:20
  • @Mark I think the issue is the term "porting". I don't think you can port a game in a way that does not incorporate any of the copyrightable, trademarkable, or patentable aspects of the original game. By definition once he does that, it simply becomes a derived game and isn't a port. I think he has the game loaded on his browser, and is basically replicating everything thing, from the story, character names, mechanics, title even? That's what a port is. – Nelson Apr 06 '16 at 09:34
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    @MartinBonner Idea/expression divide. You can copyright a particular expression of the idea "must follow suit", but you can't copyright the idea itself. The full reason why you can't copyright game rules is probably worth a question in its own right. – Mark Apr 06 '16 at 18:07
  • For example, the rules of the chess game cannot be copyrighted, but a piece of paper where I wrote down the rules of chess in my own words would be copyrighted. It is the expression that is copyrighted. – gnasher729 Apr 07 '16 at 01:07
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Most legal way: Contact the original developer for permission to port his game (including his images). Everything else is probably illegal, because it sound like you are "copying " his work.

Freddy
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If you port it by recycling any code or otherwise copyrightable material created by someone else you should check the licence it is released under before publishing it in any form as if you modify an all-rights-reserved work you will have made a derivative work. The right to restrict or prohibit derivative works is included in the all rights reserved.

However if you are re-writing everyhing on your own you should be fine copyright-wise. The open sources movement has grown. You can probably find plenty of free-to-use art with maybe a small sidenote requirement that you mention the author in a "credits" or "thanks to" section. Why bother and take the risk with potentially restricted and closed works if you are a small guy when there's an ocean of open sources?

mathreadler
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