One of us is getting sued for his fan-made game: Smurf Rescue

[Gentlegamer]

 

IP does not automatically become public domain, because it's trademarked. Trademarks can go on forever.

 

You can't trademark an entire work. I think trademark that is connected to a published work expires with the copyright.

 

Anyway, copyright is essentially perpetual now in violation of the Constitution.

[CatPix]

How is copyright perpetual? And, where?

I think that at least here, in 2062, due to European laws on copyright, the Smurfs will fall into public domain.

Now.

There is a double issue as the name is a trademark. If a company like J. Herbin was able to copyright their name since 1670 (no typo here) then, what with "the Smurfs?"

Will we see legally made comics and plastic models of the smurfs, only sold under "Blue little weirdos" brand? It's a possibility.

What about American heroes? how does it stand? I think Batman and Superman were created a long time ago?

I"m looking for it, as we have a case here.

A comic series started in 1908, of which the original author, Louis Forton died in 1934, 80 years ago. So it's in the public domain, right?

Well, the Tribunal de Grande Instance said yes. And no.

They said that the name "Les Pieds Nickelés" (the name of the comic) is public domain and can't be copyrighted anymore under any way. The original look, name and artwork by Louis Forton are in the public domain.

However, the comics made after Forton's dead by other authors is still under copyright and added elements can't be used; that is, as I mentionned, the look of the characters can only be the original one by Forton, or a different one, but one the one that most readers might be familiar with that was made after Forton's death.

 

But it's France. So at least in France, when a comics IP reach 70 years after the original author's death, it's public domain, and the name fall.

But "les Pieds Nickelés" was an old IP, with not a lot of merchandise, and "Pieds Nickelés" in French was a saying ("nickel-plated foot") and can't really compare with a created word like Smurf.

We'll see.

[The Usotsuki]

They just keep extending copyright over and over before certain things can expire, making it effectively infinite.

[mkiker2089]

In the US Disney lobbied to have the copyright laws abolished. Now there is no such thing as public domain although some things can be considered abandoned. Copyrights are assumed and can be perpetual. This is because Disney was about to lose copyrights on early Mickey Mouse projects and possibly the mouse himself.

 

Back to the OP, the person isn't actually being sued as this company doesn't want to see a courtroom. A judge would dismiss the case and possibly fine the "lawyers" in question for punitive damage. This is more like getting an unsolicited bill. Assume your neighbors send you a bill for groceries because the shade from your house prevented their cabbages from growing. This is similar. Throw the bill away.

[landgraf]

I'm just glad they haven't taken down the "official" Castle Smurfenstein homepages yet

[Rhomaios]

How is copyright perpetual? And, where?

I think that at least here, in 2062, due to European laws on copyright, the Smurfs will fall into public domain.

Now.

There is a double issue as the name is a trademark. If a company like J. Herbin was able to copyright their name since 1670 (no typo here) then, what with "the Smurfs?"

Will we see legally made comics and plastic models of the smurfs, only sold under "Blue little weirdos" brand? It's a possibility.

What about American heroes? how does it stand? I think Batman and Superman were created a long time ago?

I"m looking for it, as we have a case here.

A comic series started in 1908, of which the original author, Louis Forton died in 1934, 80 years ago. So it's in the public domain, right?

Well, the Tribunal de Grande Instance said yes. And no.

They said that the name "Les Pieds Nickelés" (the name of the comic) is public domain and can't be copyrighted anymore under any way. The original look, name and artwork by Louis Forton are in the public domain.

However, the comics made after Forton's dead by other authors is still under copyright and added elements can't be used; that is, as I mentionned, the look of the characters can only be the original one by Forton, or a different one, but one the one that most readers might be familiar with that was made after Forton's death.

 

But it's France. So at least in France, when a comics IP reach 70 years after the original author's death, it's public domain, and the name fall.

But "les Pieds Nickelés" was an old IP, with not a lot of merchandise, and "Pieds Nickelés" in French was a saying ("nickel-plated foot") and can't really compare with a created word like Smurf.

We'll see.

 

As I mentioned in another thread, 70/80 years is way, way too long. 28 years max for a living author who owns the copyright to his own creation is plenty. Smurfs came out in 1958, so the very name should have long been made public domain. I think we would have seen much better creations since then, not the stupid shit we've been spoon fed.

 

How is that good for society, which is the original intent of copyright law? No one should have the right to disallow someone else from copying their work indefinitely. Those who think so have long been brainwashed by Big Entertainment.

[Greg2600]

 

You can't trademark an entire work. I think trademark that is connected to a published work expires with the copyright.

 

Anyway, copyright is essentially perpetual now in violation of the Constitution.

 

Trust me, you cannot use the Smurf images in any way without Peyo permission. They will come after you with C&D's. Whether they are in the right or not, most homebrewers are not going to risk having to fight them.

[jhd]

Has anyone considered publishing their potentially infringing game in a jurisdiction that is NOT party to the the various international Copyright treaties -- and so the rules simply do not apply there?

 

One could establish the very first game development studio/publisher in, say, Uzbekistan.

[Torr]

Why don't people just make a game WITHOUT infringing on copyrights?

 

How many companies cloned Super Mario. Bros back in the day?

TONS

How many companies were creative enough to make their own protagonist, environments, enemies, etc...

TONS

 

Jazz Jackrabbit and Sonic the Hedgehog were able to co-exist peacefully for a reason.

Had Apogee tried making Sonic the Hedgehog X: Eggman's Carrot Plan or whatever... well, you know how that would have ended up.

 

Think of all the Doom clones after 1993. As long as you didn't make the game about a space marine, on mars, fighting off the hordes of hell, you were safe.

 

 

But I feel many people NEED to say they are remaking old game "X" or throw on a well known character/license, because otherwise they won't get noticed.

And that's most definitely one reason why copyrights exist. You can't use someone else's IP to boost interest in YOUR work. At least not without their permission.

If your work can't stand on it's own two legs, then maybe it shouldn't stand.

 

I know that if I somehow created a one-off comic that got printed and sold thousands of copies and became famously known, and then even as much as 25 years later, someone tried making a game, movie, whatever based on my characters and story without my permission I certainly wouldn't appreciate it, and I certainly wouldn't say "Hey at least it's free publicity"; I'd say "Hey, my hard work is giving this guy's work free publicity and name awareness, the least he could have done was approach me and then if I approved of what he was doing, we could have come to a mutually beneficial agreement."

Edited February 4, 2015 by Torr

[DaytonaUSA]

Why don't people just make a game WITHOUT infringing on copyrights?

 

How many companies cloned Super Mario. Bros back in the day?

TONS

How many companies were creative enough to make their own protagonist, environments, enemies, etc...

TONS

 

Jazz Jackrabbit and Sonic the Hedgehog were able to co-exist peacefully for a reason.

 

Think of all the Doom clones after 1993. As long as you didn't make the game about a space marine, on mars, fighting off the hordes of hell, you were safe.

 

Agreed. I don't understand what is so hard to copy game play while just putting in a different sprite. Heck, with the graphic fidelity we're talking about here, a simple color palette swap would have been enough to make them not look like Smurfs...

[+wongojack]

Why don't people just make a game WITHOUT infringing on copyrights?

 

 

To your point

 

 

I think I remember this one more clearly:

 

[CatPix]

As I mentioned in another thread, 70/80 years is way, way too long. 28 years max for a living author who owns the copyright to his own creation is plenty. Smurfs came out in 1958, so the very name should have long been made public domain. I think we would have seen much better creations since then, not the stupid shit we've been spoon fed.

 

How is that good for society, which is the original intent of copyright law? No one should have the right to disallow someone else from copying their work indefinitely. Those who think so have long been brainwashed by Big Entertainment.

 

Well IMO, a living author should be able to keep his work copyrighted as long as he is living. After all, it's HIS creation. Sure it's an idea, but, it's his own.

 

There is enough cases of people being robbed of their creations and getting recognition only so many years after. Much like John Pemberton, or Nikola Tesla.

And odd cases too. Like the USSR, not well know for respecting patents and copyright, paid Eugene Pottier a monthly rent for the Internationale up to his death (I didn't heard of them paying Pierre De Geyter, but he did better apparently).

 

But after his death... much like his physical properties can't belong to him anymore, well, intellectual properties belong to him no more... but should belong to everyone.

 

And of course there are many cases of people giving up their rights to the public domain, especially in the video gaming industry.

Amstrad programming company, Amsoft, allow for their programs to be shared (tho I read that somewhere and can't find it anymore, might be a hoax).

Jay Smith putting the whole Vectrex product line into public domain. Hasbro openign the Jaguar as a free to develop platform.

Eric Chahi allowing the RGC to make the unfamous Jaguar port of Another World.

 

There is also issues with international and national laws. For now in France, any published intellectual work more than 50 years old is in the public domain. Not the IP itself, but the original release.

That mean that any musical album or movie more than 50 years old in France belong in the public domain and can be downloaded freely. BUT, changes, re-use of the IP is not allowed.

 

One famous example is "Petit Papa Noël" by Tino Rossi. The first version was recorded and published in 1946. Tino Rossi re-recorded it mutiple time. Any version up to 1965 can be used freely. But any version after 1965 are still under copyright; and you can't do your own version of Petit Papa Noël without asking for the rights first.

 

It's the reason why in France you'll find a bunch of dirt cheap musical CD filled to the brim with French music up to 1965. Because they are public domain, any publisher can use them to make money. Which lead to an interesting thing:

I can sell records covering Edith Piaf 's whole carreer (except the songs pulled out from unreleased recordings) since she died in 1963, all of her albums are in the public domain.

Yet, if I dare to make my own version of any of her songs without getting the rights, I'll get sued.

 

Funny, I guess? :U

[+wongojack]

What, no rep for the Snorks? Come on guys!

[Torr]

Never heard of these Snorks to be honest... it wasn't until a few minutes I got they were called that because their heads have what looks like snorkels on top... not that they'd help at that depth, but you know.

It KINDA reminds me of a show we had here in Canada called The Smoggies. Despite the name, the stars were really The Sun Tots... a very smurf like race of mini people living under the sea, the Smoggies were three people who lived in a dirty tugboat polluting the ocean; and I don't recall if the Sun Tots ever really did anything about the pollution itself, rather the female Smoggie was always trying to steal the Sun Tot's coral thinking it would make her forever young and cute like the Sun Tots and the Sun Tots would have to fend off the Smoggie's advances.

Edited February 6, 2015 by Torr

[+thegoldenband]

Why don't people just make a game WITHOUT infringing on copyrights?

I agree, though I will say at least the planned Smurf release on Intellivision was meant to right a "wrong" (the announced, but unreleased, port from Coleco).

 

In general, I'm more receptive to that kind of thing -- or porting existing titles to systems -- than when people create brand-new homebrews and insist on using trademarked characters for no reason.

 

With some homebrews, it can seem like the only thing it has going for it is its use of other people's trademarks -- like the whole point is to release a game based on property X because "Hey, everyone loves X!", rather than to make a good game first and foremost.

[carlsson]

In this particular case, the developer still is trying out to learn programming the Amiga. He has made a few simple games prior, and went on to make a little more polished game, borrowing (or stealing if you like) artwork from a strong brand. It was announced on some forums, but never commercialized. Of course he could have asked around for someone to draw him a set of pretty sprites to be used for testing purposes, or even copying some older, obscure game that close to nobody would have recognized.

 

If there had been a well-known pool of public domain graphics for those of us who like programming, are absolutely terrible at doing graphics and for various reasons don't want to expose our projects until they're in a presentable stage, he might very well have pulled graphics from that pool instead of using trademarked characters, but it is easy in hindsight determine what one should've done. The other solution is of course to just use various coloured filled squares, and those play testing it would have to imagine the squares represent different characters.

[+thegoldenband]

To be clear, this just seems like an unfortunate situation all around -- it takes an especially litigious company to go after someone who hasn't tried to commercialize his work. My post was really directed at homebrewers who try to commercialize new work (or ROM hacks) based on active, licensed properties, since to me that's asking for trouble for the homebrewer...and for any sponsoring sites.

 

That said, given the sheer number of homebrews and (especially) hacks around that use established brands and people -- Wilford Brimley Battle, anyone? -- this can feel like it came out of left field, since most organizations have been pretty tolerant (or oblivious). But Peyo seems aggressive about defending the Smurfs trademark, which depending whom you ask makes them seem smurfy, downright smurfy, or simply full of smurf.

[mkiker2089]

Actually commercialization is a good point. If you make a game but don't sell it or profit in any way then it's hard to get actual damages. Damages are usually based on money that someone made by using the material. So if I paint custom Smurf ash trays and give them to people Peyo would have little precedence to go on regarding damages to the brand. I have the legal right to paint for my own use whatever I want to, the law just says I can't sell it.

 

In the past people used trickery to get past this. The homebrew market in particular will say that you are paying for material costs only and since most games are flat rate based on chips they slide by. Others have been busted on that. There was a site (can't recall the name) that sold copyrighted DVD cover scans. They claimed the cost was to cover bandwidth but the higher courts were not too concerned and said all money regardless of expense counts as damages.

 

What I'm saying in short is that the bounty hunter (let's stop calling them a lawyer as they aren't) has no legs to stand on in court. Then again we've already established that. Why people insist on poo-pooing in this thread I don't know. A man made a game for his own amusement and shared it for free. Legally speaking he's in the clear. If you feel he should have changed it then bite me.

[Torr]

Even giving away one's version of copyright material can be as damaging as selling them for profit.

 

Hence why sharing movies and music online is illegal. Sure there may be no one profiting from such activity, but in the end your robbing someone else of a sale.

 

Granted, yes I know that Peyo is not selling Smurf games for out of date systems; BUT, if it IS allowed it sets a bad precedent and opens up opportunities for people to weasel there way into saying if activity X is legal, then therefor activity Y must be legal too, which may even lead to activity Z being legal, and so on.

A law is a law is a law.

Why is it so hard to abide by a law, and such incredibly simple one at that?

Without permission, don't copy copyrighted material.

Edited February 6, 2015 by Torr

[CatPix]

So if I paint custom Smurf ash trays and give them to people Peyo would have little precedence to go on regarding damages to the brand.

Actually, if you do this on a large scale, you MIGHT get in trouble. Smurfs seems to be on drugs with the salsepareille (or whaterver is the name in English) but if Peyo (the artist, not the studios) expressly fought smoking; and if Studios Peyo think that usign the Smurf picture on ashtrays can alter the brand (oh, Smurfs are alright with smoking, they are on ashtrays!) they might have a stable foot here to kick you with.

A t shirt would be no trouble however.

[+thegoldenband]

We need to be very careful to differentiate between trademark and copyright here. For the most part, trademark protection is sane and reasonable, since it would be destructive on multiple levels if (for example) I were able to sell a homebrewed beverage that I marketed as Coca-Cola. Even if I used my own ingredients, I'd be liable for using Coke's trademark.

 

That's a totally different beast from copyright, which is widely agreed to have gotten completely out of control, thanks to Sonny Bono among others (at least in the US). And copyright law is not at all simple -- it can be remarkably difficult to determine what constitutes fair use, for example. It's an ongoing injustice and a direct product of legislative actions that were, IMHO, motivated by corruption and graft.

 

Anyway, I think trademark may be the more immediate issue here. If Studio Peyo allows anyone to make unauthorized Smurfs material, even once, it becomes more difficult for them to retain Smurf as a trademark. Hard to fault them for aggressively defending it. But then the non-commercial angle of this particular homebrew is actually relevant. Unlike copyright, trademark mainly (exclusively?) applies when you're promoting or selling a product in the marketplace. See here for one discussion.

 

What will happen when Peyo's original Les Schtroumpfs cartoons are no longer protected by copyright, I'm not sure. This page discusses the issue a bit, and I think the bottom line is that inherently graphic characters like the Smurfs can be protected by trademark in a way that's impossible for literary characters, though not necessarily for specific graphical representations of literary characters (i.e. Disney's take on the Hunchback of Notre Dame).

 

What's not clear to me is how something like a DVD of public domain Bugs Bunny cartoons works. I assume Bugs Bunny is trademarked, and the Warner Bros. logo certainly is. I know I've seen movie collections where they hack off the opening credits to avoid displaying a company logo, but when the entire work is suffused with a trademarked character...? It's all very confusing!

[RevEng]

A law is a law is a law.

Why is it so hard to abide by a law, and such incredibly simple one at that?

Without permission, don't copy copyrighted material.

Ever drive a wee bit above the speed limit? Ever download a copyrighted rom from AtariAge? Ever copy art from a Swordquest comic as your avatar?

 

People - good people - will break laws. Sometimes its just because it's expedient. Other times it's because one doesn't even know the laws exist, and couldn't know, since there are more laws on the books than one could possibly keep track of. Other times, to paraphrase Dickens, its because the law is an ass.

 

The point is the punishment should fit the crime, or in civil matters, the restitution should match the damages. In this case, any reasonable person can see that Studio Peyo is intentionally overreaching.

[Torr]

Ever drive a wee bit above the speed limit? Ever download a copyrighted rom from AtariAge? Ever copy art from a Swordquest comic as your avatar?

 

I have driven over the speed limit, and I have received tickets. I have NEVER argued that I should have the right to speed.

I have downloaded ROMs from this site, long story short, I'm not into pirated media anymore, however I believe that I have the right to have ROMs of games I own. If I was ever told explicitly by a lawyer or someones representative that I can't do that and inform me of the consequences, I would delete them, not argue it's my right to have them. No big loss, I still have the hard copies to play anytime.

I have a snippet of comic art in my avatar. I believe that's fair use, same as it's fair use to use direct quotations limited to two lines of poetry or 300 words of prose from any single source in any single piece of fiction. If Atari, DC Comics or the artist contacted me and said I can't do it, AGAIN I wouldn't get huffy and claim I can do whatever I want, I'd apologize and comply. Even if I believe I AM in the right, I wouldn't consider THAT a fight worth fighting.

 

...and THAT is big thing that hasn't been spoken of much here. Lawyers aren't like the masked tax collector in Hagar the Horrible comics wherein it's obey, pay up or die. If you believe that what you are doing is right, and you believe that what you are doing is worth is worth fighting for, then fight them. Let the courts decide who is truly in the right.

Edited February 6, 2015 by Torr

[RevEng]

I have driven over the speed limit, and I have received tickets. I have NEVER argued that I should have the right to speed.

I'm not sure what you're protesting against here. No homebrewers here hare argued that they have the right to use trademarked characters. Its just done sometimes strategically, hopefully while minding the consequences.

 

 

...and THAT is big thing that hasn't been spoken of much here. Lawyers aren't like the masked tax collector in Hagar the Horrible comics wherein it's obey, pay up or die. If you believe that what you are doing is right, and you believe that what you are doing is worth is worth fighting for, then fight them. Let the courts decide who is truly in the right.

The fact that it's not insta-pay was spoken of a few times...

 

He's taken down the infringing game. In a court of law, Studio Peyo would need to actually prove damage to the brand or lost revenue. VS a cost of 2000 euro, I'd actually rather have my day in court.

...but again, it's not about proving the homebrewer was "truly in the right". it's about realistic damages. If you believe that this homebrewer cost 2000 euro in damages, carry on.

[Torr]

...but again, it's not about proving the homebrewer was "truly in the right". it's about realistic damages. If you believe that this homebrewer cost 2000 euro in damages, carry on.

 

It doesn't matter what any of us think; Peyo says he did 2000 Euro in damages, He claims he didn't. It's up to the court to decide, as RevEng said "I'd rather have my day in court".

 

I personally don't believe that he what he did constitutes that heavy a fine, BUT I do believe that what he did was break copyright. Twice, once when he did a port of a game he did not have the rights to, and again when said game contained copyrighted characters. And as stated already, a law must be upheld, otherwise it's a slippery slope.

It's the same reason why you don't see Sega's X-Men or Spider-Man games on Steam/compilations/etc. They don't have the right to distribute those games anymore. They came up with the story, the gameplay, and the code from start to finish, they own all of that, but they don't own the characters that star in the game, and their rights to use those characters have expired. Hence why Revenge of Shinobi went through so many modifications, and the only thing they didn't have to change was Spider-Man, because at the time they had the right to use the Spider-Man character. They don't anymore, so now if you get Revenge of Shinobi on Steam, Spider-Man has been palette swapped out.

And in that same vein, if I tried to do a straight port of Sonic the Hedgehog (1991) to ANY system, Sega would have the right to say, "That's our game, if we want it released on system X, we'll do it, leave our property alone." And when companies do want their older games ported to other/newer systems, groups like Digital Eclipse do that, and when they do it, they have been given the rights to do so. Letting just anyone port 'old' games willy-nilly could cut into their business. To reiterate, even doing things not-for-profit can in turn cut into someone else's profits.

 

But enough from me, this isn't a debate as far I'm concerned, Copyright laws are factual, and what he did was break that law. What is or is not considered to be a reasonable consequence is not up to us to decide. THAT however certainly CAN be up for debate, though our musings will only bear fruit for us, as it gives us something discuss and kill time like talking about the weather, sports or whether the TMNT were cooler all wearing red bandanas or if multi-colored is the way to go. Regardless any 'conclusion' we come to will be for us only and will not affect what actually happens.

Edited February 7, 2015 by Torr