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

[+bennybingo]

Anyone follow the links and look at the "cease and desist"?

 

http://www.hipooniosamigasite.org/files/uploads/1.png

http://www.hipooniosamigasite.org/files/uploads/2.png

 

This is a letter that any scam artist could send out. Why would they put their bank info in the letter and request direct payment? That guy should confirm the legitimacy of this letter before doing anything else.

Agreed. That letter REEKS of a scam…or, at very least, a shakedown…just sayin.

[Gentlegamer]

Those lawyers can go smurf themselves.

[OldSchoolRetroGamer]

What is this clip from?

 

With regards to the OP, I guess Princess Rescue got off easy then...

http://www.wikiwand.com/en/Freaks

[+Random Terrain]

What is this clip from?

en.wikipedia.org/wiki/Freaks

[FastRobPlus]

Agreed. That letter REEKS of a scamor, at very least, a shakedownjust sayin.

Yeah, we've all asked him to do that. He apparently also got more formal documentation sent directly to his home by this firm.

[+atari2600land]

When I mentioned in one of my blogs that I was going to make a sequel to Manos: The Hands of Fate, I got an e-mail from the Harold P. Warren estate, Harold's son. It was basically a C&D, but without the lawyerese. So I decided to stop. But at least Joe Warren was nice about it, and offered to grant me a license to anything I decided to make out of Manos. And this was just because I made a website about it. He apparently Googles "Manos" a lot to see what comes up.

[DaytonaUSA]

Why not just post these games up anonymously. If they're physical copies, don't put a return address. How are these lawyers finding these guys' identities?

[goldenegg]

Why not just post these games up anonymously. If they're physical copies, don't put a return address. How are these lawyers finding these guys' identities?

The concept of "if you're going to do something illegal, make sure you don't get caught" isn't a new one. It's just important to realize that doing so doesn't justify your actions and you must take full responsibilities for your actions should you be caught.

[FastRobPlus]

The concept of "if you're going to do something illegal, make sure you don't get caught" isn't a new one. It's just important to realize that doing so doesn't justify your actions and you must take full responsibilities for your actions should you be caught.

 

I don't disagree with what you say here. However, there are shades of "illegal" and shades of "full responsibility" that have to be considered.

 

For example, when a new Harry Potter or Star Wars movie comes out, it's not uncommon for fans to dress up like characters using home-made costumes. They are often praised by the studios and IP rights holders, even though they aren't officially licensed.

 

If we apply the standard that it's "important to realize that doing so doesn't justify your actions and you must take full responsibilities for your actions should you be caught." it implies that these homemade costume designing fans can and probably should be fined. And if this were a Smurf movie, perhaps the fans would be fined.

 

I put this homemade Smurf game creator into the same category as a parent that will sew a Harry Potter costume for a kid, or make a Mario-themed cake for a birthday party. The "punishment" that fits the crime is that the IP holders should ignore the act or give it a thumbs up for the sake of publicity. Certainly, that's what Rare did when my wife made Viva Pinata costumes for the kids.

 

The Smurfs braintrust is just stuck too far in the past. Consumers need to (and are) turning away from these kinds of dinosaurs and migrating to properties that fans can participate in within reasonable limits.

[goldenegg]

Homemade costumes aren't the same. By making a costume, you're becoming an imitation and will not be confused as being related in any way to the IP you're imitating.

 

A game which features characters and an IP name you don't own is a completely different situation. It was the original developer who ultimately took full responsibility when choosing to release the game. We can argue all day whether the response is justified, as that doesn't matter. The owners of the IP is acting within their right here and it's up to the developer to take responsibility for his actions. If he doesn't agree with the fine being imposed, he should take the matter to court.

 

We also have no idea about other factors which have led to this type of response. Perhaps the IP holder has recently signed exclusive video game rights to another developer and are protecting themselves under that contract. Given the reboot of the series over the past several years, this is a very likely scenario.

[+Atari_Warlord]

The costuming is interesting as New York and Las Vegas have entertained the idea of shutting down the pan handling by costumed characters because they aren't officially licensed by IP holders. Maybe it is just a threat and the cities really just want them to buy some kind of city permit so that they are getting a cut.

[cimerians]

This is perhaps the most ridiculous cease and desist news I've ever heard of. Smurfs? A game that can only be played on an emulator and no money is being exchanged? Seriously

 

If I created a brand of IP thats almost 50 years old I wouldn't mind fan made games or anything from my fans as long as they are not making money off of it or hurting the brand or rep in some way.

 

It's politically correct to say sure they "have every right" to defend their precious age old IP.....but don't expect the fans to be happy about it. In fact I would be slapping my lawyers around right now if they tried that without telling me.

 

Want to eventually cut sales of your IP? Piss your fans off. I'm sure Pierre "Peyo" would agree.

[Gentlegamer]

The Smurfs should be public domain by now, along with everything from 1984 and earlier.

[Algus]

Not that I'm unsympathetic to this guy but if you're going to play with fire...

 

If your intent is to create and release a game that uses the copyrighted assets of a larger organization, you need to be prepared to fight the good fight. There are many excellent points in this thread that I agree with but one Joe Homebrew isn't going to have the resources or time to defend his rights to use that material, regardless of how legal or illegal it actually is under the law. Raising awareness to push for a civil outcry can be an effective way of dealing with crap like this...we've certainly seen it before but it doesn't change the fact that the content creator needs to be prepared to accept responsibility for his use of copyrighted material.

 

Again, like I said, I don't disagree with many of the points made in this thread but that's just the reality. A big corporation is going to be happy to trample over the law and the little guy and has more discretionary funds to do so than the little guy makes annually. It's not like on TV where everyone has a crackerjack lawyer, even the people to poor to afford good representation.

[DaytonaUSA]

The concept of "if you're going to do something illegal, make sure you don't get caught" isn't a new one. It's just important to realize that doing so doesn't justify your actions and you must take full responsibilities for your actions should you be caught.

 

Never said it did, nor did I condone what he did with licenses that he didn't own. Just saying I'm baffled as to why he didn't just not plaster his name everywhere so he'd be caught. He had to know he had a chance of being targeted...

[+RevEng]

Homemade costumes aren't the same. By making a costume, you're becoming an imitation and will not be confused as being related in any way to the IP you're imitating.

It's not as clear cut as that. When cosplayers are imitating a character, they literally try to copy the artistic design of the character. The crowd doesn't say "hey, look at that guy with a cowl, boots, and bat on his chest", they say "hey, check out that batman costume". Being conflated with someone else's IP is the intended effect.

 

Cosplay is a form of non-commerical fan-art, which is why it's generally considered safe.... because it would be bad business for DC to sue their loyal fans dressing up as batman. But if I don a handmade costume with a cowl, boots, and bat on my chest, while I hand out fliers to my restaurant, I'm quite sure DC wouldn't hesitate to sue me, and they'd be within their rights.

 

I think the comparison of this case to cosplay is actually an apt one. The Amiga game was clearly non-commercial fan art, and clearly didn't impact sales of Smurf's products. A C&D is warranted in these circumstances, if Peyo truly feels they need to defend their mark. But a bill for 2000 Euro is insane, and an indication that Peyo lacks some common sense when dealing with their fan base.

[FastRobPlus]

We also have no idea about other factors which have led to this type of response. Perhaps the IP holder has recently signed exclusive video game rights to another developer and are protecting themselves under that contract. Given the reboot of the series over the past several years, this is a very likely scenario.

 

I think all of us find it funny that an exclusive license would preclude development of any games for the Amiga (or VCS, or C64, INTV, etc.)

But I do get your point that corporations who treat their IP as a curated commodity are too myopic to appreciate that distinction.

 

Still, if the Smurf guys did intend a new video game flurry, it'd be awesome if they had marketing smarts to reach out and solicit a few retro platform versions of their games. It might be a cheap and effective way to catch the fleeting attention of mainstream video game bloggers who otherwise would not have bothered to report on it: "Smurfs push new games on multiple platforms: Xbox, Wii, PS3, and wait a minute: Atari 2600!?!"

[Crazy Climber]

$2000 is small claims court, you dont even have to show up for that, you will not get arrested, etc..

The lawyers are probably legit, but honestly cant do much if you dont continue after the c&d. If you actually get a summons (and actually show up in court) you will not even see a judge for that amount. You will not get a warrant for skipping it and if you do go and are ordered to pay your wages will never be garnished if you simply dont pay it. Annoying phone calls is about all that happens. Just crinkle the paper up, throw it over your shoulder and comply with the c&d and it will all go away. Any bullshit you get in the mail after that will just be the lawyers trying to get paid for their time. It only takes them a few seconds to mail a letter, trying to scare you into paying, after a few years they stop. They really cant do much of anything.

[CatPix]

if Peyo truly feels they need to defend their mark. But a bill for 2000 Euro is insane, and an indication that Peyo lacks some common sense when dealing with their fan base.

Just to mention : Peyo died in 1992. The IP owners are eiher (or both?) Dupuis and Studio Peyo.

[+RevEng]

Just to mention : Peyo died in 1992. The IP owners are eiher (or both?) Dupuis and Studio Peyo.

 

Ack'ed. I referred to Studio Peyo in my previous "slashdot submission" post in this thread, and meant the company above ("their" instead of "his") but it doesn't hurt to be more accurate.

[mkiker2089]

$2000 is small claims court, you dont even have to show up for that, you will not get arrested, etc..

The lawyers are probably legit, but honestly cant do much if you dont continue after the c&d. If you actually get a summons (and actually show up in court) you will not even see a judge for that amount. You will not get a warrant for skipping it and if you do go and are ordered to pay your wages will never be garnished if you simply dont pay it. Annoying phone calls is about all that happens. Just crinkle the paper up, throw it over your shoulder and comply with the c&d and it will all go away. Any bullshit you get in the mail after that will just be the lawyers trying to get paid for their time. It only takes them a few seconds to mail a letter, trying to scare you into paying, after a few years they stop. They really cant do much of anything.

 

Agreed. Toss the paper in the garbage, tell them it was interactive fanfiction, further tell them to "bite me" and you'll never hear more about it. Assuming the letter is legit, which I still doubt, these aren't the real lawyers. Many companies will pay a bounty to firms that find and collect damages on copyright issues. I remember Pamela Anderson talking about all the "lawyers" she had.

 

Most lawyers in this field are really just collection agencies with one or two lawyers on retainer so they can keep the name. I had a hospital bill go to a "law firm" once and successfully filed harassment charges against them which proves no lawyer actually knew of my case, or at least no intelligent one. Alas, as CC said, it's impossible to collect civil damages. The IRS is the only entity with that power.

Edited January 28, 2015 by mkiker2089

[CatPix]

Ack'ed. I referred to Studio Peyo in my previous "slashdot submission" post in this thread, and meant the company above ("their" instead of "his") but it doesn't hurt to be more accurate.

I guessed you did thanks to the "their" but I wanted to get it clarified for people that doesn't know the little world of Franco-Belgian comics. Edited January 28, 2015 by CatPix

[Greg2600]

The Smurfs should be public domain by now, along with everything from 1984 and earlier.

 

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

[Crazy Climber]

 

 

 

Most lawyers in this field are really just collection agencies with one or two lawyers on retainer so they can keep the name. I had a hospital bill go to a "law firm" once and successfully filed harassment charges against them which proves no lawyer actually knew of my case, or at least no intelligent one. Alas, as CC said, it's impossible to collect civil damages. The IRS is the only entity with that power.

Yes! Thats what I was getting at. Although a "legit" lawyer had a hand in it somewhere along the line It's basically a "collections" case and those mean nothing other than annoying phone calls (which legally they can not call you anymore if you say you only want to be reached by mail) and a letter trying to scare you into paying some amount they came up with showing up at your door every few months. They thrive on people being scared their wages will be garnished, or thinking they will get in legal trouble and possibly get arrested, when in reality they can't collect anything unless you willingly pay them and they can't DO anything other than hope you are scared and pay. It's a joke really, just a few pegs above a Nigerian money order scam if you ask me, lol.

[apemaster]

I'd agree to the first two points and the last point in the letter, but not to paying the "cost" of $2000, since it's not justified. As long as he removed everything, a court would usually be on his side, because the other party doesn't have any reason to continue fighting, except monetary, but the case is about the IP, not the money, or at least they say so.