When I hit the front page of AtariAge today, the Did You Know? feature mentioned that the game Taz was changed to become Asterix, presumably for licensing reasons.
I was curious if this could be done for other licensed games so they could be released for the Flashback units. Could E.T., for instance, have a redesign of the characters and some other elements and be distributed without incurring any penalties? What about Raiders of the Lost Ark, Superman, Ghostbusters? I'm curious if either side were savvy enough to either prevent/allow that in the written contracts. Also, I wonder at what point does the game have to be changed to allow a rerelease...is changing the E.T. character enough? In Raiders, is the entire premise/sequences of the game still too close, even if one took away the hat on the character? I almost was about to say the whip would have to be taken away, but there really was no bullwhip...it was just missile-pixels.
I believe that for something to be copyrightable it work must be original — that is, independently created by the author. It doesn’t matter if an author’s creation is similar to existing works, or even if it is arguably lacking in quality, ingenuity or aesthetic merit. So long as the author toils without copying from someone else, the results are protected by copyright.
However, copyright does not protect ideas, for example, copyright may protect a particular song, novel or computer game about a romance in space, but it cannot protect the underlying idea of having a love affair among the stars. Allowing authors to monopolize their ideas would thwart the underlying purpose of copyright law, which is to encourage people to create new work. If copyright protected ideas then the first person to create a maze, platform or 1st person shooter type game could claim breach of copyright for any other maze, platform or 1st person shooter created which would result in a very small number of games made.
Therefore you may produce a game similar to say Pac-Man (a player character collecting items in a maze type environment while avoiding enemies, i.e. Crystal Castles) if it is all your own work, it is not enough to just change the sprites of a copyrighted work and use a verbatim copy of some or all of the original code, or to use the original sprits and write your own code as that would be a copyright infringement, it all has to be original. There is still the risk you could be sued but how successful that is will depend on the conditions.
Most companies are concerned about loss of income and reputation so if you produce something that looks, plays, and has a similar name to Pac-Man, enough to cause confusion in the marketplace between the two, resulting in purchase your version in error rather than the original you will likely be sued for damages.
For VCS games that are no longer in production just changing the character graphics/Title screen is not enough to avoid copyright infringement as you are still otherwise using copyrighted material, consequently you could be sued for it, however as the copyright holders is unlikely to have produced, sold and made money from any new VCS carts for a long time I personally would think that if they took any action at all it would more likely be in the form of a cease and desist than being sued for damages if you just wanted to make VCS carts.
However, when it comes to the new retro gaming scene fuelled by playing old games on new/newer systems on such as the flashback the copyright holder still has the potential to make money from their titles by licencing them for use on such system, so you may well be sued for damages if found to have hacked copyrighted material for play on such a system in an effort to subvert copyright issues.
Just because it may appear that way does not necessarily mean Telegames did anything wrong. It is possible the original produces of the games may have seen no value in them after the original licencing expired as renewal was to expensive or perhaps they just got out of the 2600. market. They then found value in selling them to Telegames who may have seen the opportunity to add those types of games to their stable without having to develop them beyond a simple change of name to avoid the licencing issues.