The introduction of the Copyright and Rights in Performances (Quotation and Parody) Regulations 2014, which amended the Copyright, Designs and Patents Act of 1988, has resulted in large-scale confusion within the games industry. This is particularly evident in the fan game community and applies to both fan game developers and the software houses that own the rights to the original work.
The new rules permit limited use of copyright material for the purpose of caricature, parody or pastiche (a fan game can fall into one or all of these above categories) without the permission of the copyright holder. However, this is only to the extent that such use is fair and reasonable. In short, the use of another’s work must constitute ‘fair dealing’.
The term ‘fair dealing’ is not defined but the Court tends to adapt a common sense approach. For example, the creation of a game which blatantly copies the original is almost certain to fall foul whereas the development of a game which pays homage to the original by only using a moderate amount of its content is more likely to fall within the provision. While each case will be considered on its own merits a skilled developer should be capable of determining whether the amount copied is fair and reasonable.
In addition to copyright infringement care must be taken in the choice of name for the game. Many of the larger developers apply to register titles when the game itself is in the earliest stages of development. Earlier this year Sony trademarked ‘Fluster Cluck’ for a game that had not at that stage been created and many of the better-known games are registered trademarks. The creator of a fan game therefore needs to ensure that not only the game itself avoids infringing the original but that the title does not constitute trademark infringement.
There are three primary points for a developer to consider when developing a fan game:
- The general idea or high level concept behind the original game is unlikely to be protected. Developers should avoid copying the programme code or the graphics and focus on the general concepts.
- The title of the game should not be an afterthought. Avoid selecting a title that is the same as, or similar to, an existing title or any character or fundamental aspect of the original game.
- It may be possible to obtain permission from the owners of the original game. Many games achieve long term success as a result of a cult following and original developers/right holders may be willing to permit a fan game which complements it and may introduce a new generation of fans to the original or encourage the original fans to re-discover it.
In summary, copying a substantial part of an existing game is no less likely to constitute copyright infringement under the new rules. The considerable amount of time and effort that goes into the creation of a game can be wasted if careful attention is not taken to ensure that the original is not too slavishly copied.
The increasingly widespread view within the fan game community that the new rules are a ‘green flag’ to allow developers to create a fan game which mirrors the original is simply wrong.
For those who have had their work copied, the creator of the new work is unlikely to be able to rely on the new rules as a defence to an infringement action. The original owner of the work/current rights holder should not be dissuaded from taking action to safeguard the product of many hours of development and a potentially highly lucrative revenue stream.
A prudent software house will have procedures in place to ensure that its products are protected as far as possible. As noted above this is likely to include, at the very least, considering whether to protect the title, and any other potentially registrable features, as a trade mark. The graphics in both the game and packaging design are likely to automatically attract copyright, as is the programme code.
If faced with an infringement, whether from a fan game or a competitor, advice should be sought promptly from a specialist IP practitioner.
In conclusion, whilst the new regulations may present some interesting challenges and opportunities for both developers and fans as the industry continues to evolve at high speed, they are unlikely to be a game changer.
Christopher Williams is a senior associate solicitor at Russell-Cooke LLP.
Further reading on intellectual property
