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ColecoVision Homebrews & IP Rights Discussion

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I don't know what he hopes to accomplish by trying to compare homebrewers and bootleggers as similar in front of thousands of retrogamer fans.

 

This reminds me of something I was going to address earlier, but I forgot. This block of text right here...

 

trademark BS.png

The last couple of sentences proves they don't actually understand how homebrew games work and how that differs from someone "pirating" a homebrew games. Let me explain...

 

how does one assert ownership over a Nintendo Data / East Game. (Essentially the person reported a bootleg of a bootleg no?) Point is how can they trumpet the homebrew community, and then file complaints against the same community?

 

First of all "Kung Fu Master" is actually an Irem game that was licensed to Nintendo and Data East. Secondly, it has been common practice for YEARS for retrogaming homebrewers to port arcade games that were never released in the system's original life. And this is all 1980s classic gaming platforms and it's been going on for decades. It's simply part of the history of retrogaming and homebrewing. That being said, I am not going to pass judgement on whether it is right or wrong for a homebrewer to make a new version of an old IP for a defunct system that only sells a handful of copies. If a homebrewer chooses to replicate a licensed IP without getting that license that is AT THE HOMEBREWERS RISK to do so and that is up to the original IP owners to choose to care or not care if a homebrewer publishes a handful of copies of their game on a defunct platform. In most situations, the amount of money it would cost a lawyer to file the claim against the homebrewer would greatly outweigh the money that anyone would make from the sale of the homebrews because it's not a mainstream game, thus making it a moot point. In short, Irem probably isn't going to care that CollectorVision sold a few copies of Kung Fu Master for the 1980s ColecoVision because they are doing it mostly for fun and not making a huge (if any) profit.
But that's not actually the point I'm making here. I want to address this part of the statement: "how does one assert ownership over a " and "Essentially the person reported a bootleg of a bootleg no?"
No.
Porting or re-creating a game is NOT synonymous with "bootlegging" at all. For example, take the MSX ports to ColecoVision. You can't just use a cartridge adapter and make them work, there has to be code written to port the game from one system to another in order for that to work. And that work is commissioned by the homebrew publisher. It takes time, effort, money spent, new code has to be written, and even if they may not own the original IP they DO OWN the version of the game that plays on the system that they wrote the code for.
When another party steals that code and then sells it on their own, they are stealing and selling the version that the homebrewer created and the homebrew publisher owns the rights to. The content was created by the homebrewer and they have every right to have removed stolen content that they created. Now, at the same time, the original IP owner could also come along and tell the homebrewer not to publish the game, and they would have that right. But the person pirating the game does NOT have the rights to take someone else's work and publish it as their own.
Here's another example...
Let's say I went to Walt Disney World, took a picture of the iconic castle at Magic Kingdom. While Disney owns the creative rights and IP to the castle, the photographer owns the rights to the photo. If the photographer wants to sell copies of the photo, he can, because he owns the rights to that picture. It's HIS content! He OWNS it! Even though Disney may own the creative rights to the actual castle, the photographer owns the picture. Now, if someone else came along and stole that picture and started selling prints of it on their own, the original photographer would have every right to remove those images because they own the rights to that content. And just like the IP owner of the aforementioned game who has the right to stop the homebrewer from publishing the game, Disney could (although unlikely) COULD come and tell the photographer they cannot sell the image of their castle. And in this scenario, just like the one above, the "bootlegger" has no rights at all. Not to the original IP or to the photograph that was created. The same rule applies to homebrew publishing.
Two things to take away from this:
1. The homebrewer is putting themselves at risk by re-creating a licensed game. But it is up to the original license holder and ONLY the original license holder to make the decision to allow or to stop the sale of that game.
2. The homebrewer owns the rights to the game they created, even if they do not own the IP. If someone else comes along and publishes the same game that the homebrewer has created, that is STEALING aka "pirating."
So I hope this now answers the question of "how does one assert ownership over a " and "Essentially the person reported a bootleg of a bootleg no?"
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Ha, ha...try getting a picture of Disney's castle on your Capital One Visa card...I argued and argued with them that it was my picture and I took it, but they refused to use the image for my personalized credit card. I finally got one of "It's A Small World" past them because it was more difficult to recognize especially dressed up for Christmas, but they weren't about to use the castle.

 

Let's say I went to Walt Disney World, took a picture of the iconic castle at Magic Kingdom. While Disney owns the creative rights and IP to the castle, the photographer owns the rights to the photo. If the photographer wants to sell copies of the photo, he can, because he owns the rights to that picture. It's HIS content! He OWNS it! Even though Disney may own the creative rights to the actual castle, the photographer owns the picture.

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Here's another example...
Let's say I went to Walt Disney World, took a picture of the iconic castle at Magic Kingdom. While Disney owns the creative rights and IP to the castle, the photographer owns the rights to the photo. If the photographer wants to sell copies of the photo, he can, because he owns the rights to that picture. It's HIS content! He OWNS it! Even though Disney may own the creative rights to the actual castle, the photographer owns the picture. Now, if someone else came along and stole that picture and started selling prints of it on their own, the original photographer would have every right to remove those images because they own the rights to that content. And just like the IP owner of the aforementioned game who has the right to stop the homebrewer from publishing the game, Disney could come and tell the photographer they cannot sell the image of their castle. But the person who stole the picture from the photographer does not have any rights at all, even if they tried to claim "But you just took a picture of someone else's IP and were selling that!" The "bootlegger" here owns no rights at all. Not to the original IP or to the photograph that was created. The same rule applies to homebrew publishing.

This is not entirely true. Take for instance it is illegal in Paris, France to photograph the Eiffel Tower at Night... :roll:

 

The fact that photos exist all over the internet showing off the Tower's gorgeous lights only indicate that the existing E.U. law is for all practical intents unenforceable, especially if the servers the photo resides on and the citizen posting it are not within the E.U. The fact however remains that simply because a law is unenforceable does not make it legal to disobey it.

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This is not entirely true. Take for instance it is illegal in Paris, France to photograph the Eiffel Tower at Night... :roll:

 

It was just an example, and yes I'm sure it could be nitpicked like anything else, and there will always be variants of what you can and cannot do when it comes to taking or selling photos, but I just wanted to give people another example which they could relate to. I'd focus more on the "homebrew" example, TBH.

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.......

Two things to take away from this:
1. The homebrewer is putting themselves at risk by re-creating a licensed game. But it is up to the original license holder and ONLY the original license holder to make the decision to allow or to stop the sale of that game.
2. The homebrewer owns the rights to the game they created, even if they do not own the IP. If someone else comes along and publishes the same game that the homebrewer has created, that is STEALING aka "pirating."
So I hope this now answers the question of "how does one assert ownership over a <homebrew game>" and "Essentially the person reported a bootleg of a bootleg no?"

 

 

I'm still confused. Isn't the reason the homebrewer is putting themselves at risk in #1 because they are committing copyright infringement(a.k.a. piracy,stealing) against the original copyright holder? How can the homebrewer own the rights to the game they created(have a copyright in it), even if they don't own the IP(have a copyright in it)? What I'm trying to figure out is how the someone from #2 that is publishing a game created by a homebrewer that doesn't have a license from the original copyright holder to create the game in the first place is the only one pirating/stealing(committing copyright infringement)? I mean, couldn't they make a #3 like this?:

 

3. The publisher owns the rights to the cart they created, even if they don't own the IP from either the homebrewer or the original copyright holder.

 

In other words, isn't both the homebrewer and the publisher pirating/stealing(committing copyright infringement) and the only thing the publisher is doing is taking it one more step further than the homebrewer because the original copyright holder can legally go after both of them?

 

Anyway, the confusing nature of all this is one of the reasons I don't believe intellectual property is a legitimate form of property and that violating intellectual property rights aren't literally stealing. Here are two scenarios:

 

1. A woman goes to a party in a red dress, sees another woman wearing the exact same dress, finds out that the other woman saw her picking it out when shopping, and says,"That woman is STEALING my idea! I put in all of this effort to pick out the perfect dress, spent hours doing my hair and makeup, etc. and now I come here to discover this! I have been planning this out for months in preparation for this party and now it is all for nothing because if I knew that she was going to wear it too I would have never bought it in the first place! Only I have the EXCLUSIVE RIGHT to wear this dress because it was my idea first!"

 

2. A video game publisher goes into a store, sees that another publisher is selling the same game, and says," That publisher is STEALING my idea! If I would have known they were going to sell the same game too then I would have never created it in the first place! Only I have the EXCLUSIVE RIGHT to sell this game because it was my idea first!"

 

Only scenario #2 is legally considered violating someone's rights but fundamentally they are identical because both people believe that coming up with an idea first makes them owners of the idea and that someone copying them is stealing from them. They think they have an exclusive right to their ideas in the same way that I have an exclusive right to own this computer I'm typing on but there is a huge difference. If someone broke into my house and stole my computer then I can't use it because, unlike ideas, material objects can't be used by everyone at the same time and therefore the concept of property rights in material things are needed to establish who has the legitimate claim to use the material object in question. In other words, it makes sense to have exclusive rights in material things because we have no choice in the use of them being exclusive to one person at a time. Ideas don't have this same inherent exclusivity. When a law says that I have an exclusive right to my computer it is acknowledging the inherent exclusivity that is already there. When a law says that I have an exclusive right to an idea it is creating exclusivity that isn't inherently already there while at the same time allowing me to violate people's property rights in material objects that have inherent exclusivity because you don't really have an exclusive right to a material object anymore if I can tell you what you can and can not do with it. In other words, these two concepts of property rights are at war with each other because in order to gain exclusive rights in an idea people must lose exclusive rights in their material objects because owning "intellectual property" makes you the partial owner of all material objects that your idea can be manifested in.

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It was just an example, and yes I'm sure it could be nitpicked like anything else, and there will always be variants of what you can and cannot do when it comes to taking or selling photos, but I just wanted to give people another example which they could relate to. I'd focus more on the "homebrew" example, TBH.

Not trying to nitpick too much. The rest of your post did resonate with me.

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Only scenario #2 is legally considered violating someone's rights but fundamentally they are identical because both people believe that coming up with an idea first makes them owners of the idea and that someone copying them is stealing from them. They think they have an exclusive right to their ideas in the same way that I have an exclusive right to own this computer I'm typing on but there is a huge difference. If someone broke into my house and stole my computer then I can't use it because, unlike ideas, material objects can't be used by everyone at the same time and therefore the concept of property rights in material things are needed to establish who has the legitimate claim to use the material object in question. In other words, it makes sense to have exclusive rights in material things because we have no choice in the use of them being exclusive to one person at a time. Ideas don't have this same inherent exclusivity. When a law says that I have an exclusive right to my computer it is acknowledging the inherent exclusivity that is already there. When a law says that I have an exclusive right to an idea it is creating exclusivity that isn't inherently already there while at the same time allowing me to violate people's property rights in material objects that have inherent exclusivity because you don't really have an exclusive right to a material object anymore if I can tell you what you can and can not do with it. In other words, these two concepts of property rights are at war with each other because in order to gain exclusive rights in an idea people must lose exclusive rights in their material objects because owning "intellectual property" makes you the partial owner of all material objects that your idea can be manifested in.

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I'm still confused. Isn't the reason the homebrewer is putting themselves at risk in #1 because they are committing copyright infringement(a.k.a. piracy,stealing) against the original copyright holder? How can the homebrewer own the rights to the game they created(have a copyright in it), even if they don't own the IP(have a copyright in it)?

 

If you draw a picture of Mickey Mouse, you do not own the rights to the character Mickey Mouse, but you own the rights to that drawing. If someone else comes along and copies your drawing and tries to sell it, you have rights to the drawing that you can exercise.

 

It is confusing, yes. CollectorVision owns the rights to "Kung Fu Master for ColecoVision" even if they don't own the rights to "Kung Fu Master."

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Ideas are not copyrightable. Creative works are copyrightable. In a videogame, the gameplay is not necessarily copyrightable but certain graphics, music, and sound effects are. And of course the source code and compiled code is copyrightable. That is why legally you can make a space invaders clone as long as you make the aliens and sound effects different. And don't call it space invaders; using that name is not a copyright violation but would be a trademark violation.

 

In the case of converting MSX games to play on colecovision. If you are copying most of the original code and reselling it then you are selling copies of someone else's code. That would be software piracy and you have to be carefull especially if you are charging for it. If you are distributing hacks of someone else's software, a seperation of the modified code from the original code to be combined by the end user is possible ie. a patch.

 

If you are remaking someone else's game than the code is an original creative work and is the author's intellectual property. It is still violating someone else's copyright of graphics/music/sound. If you are copying someone else's game code than it is software piracy.

 

When the new Coleco talks about asserting ownership they are probably only referring to trademarks. You cant assert ownership of someone else's copyright property but you can in some cases assert ownership of someone else's trademarks. I think the new Coleco has experience in trademarks but does not deal in copyrighted intellectual properties.

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In the case of converting MSX games to play on colecovision. If you are copying most of the original code and reselling it then you are selling copies of someone else's code.

 

But you are also selling your OWN code that was written for the conversion to work, and that code that was written is owned by the creator, in this scenario CollectorVision, and they have rights to that.

 

That would be software piracy

 

Software piracy would be taking the original code, unmodified, and re-selling it.

 

As I said, I'm not going to pass judgement on what is "right or wrong" in this scenario, I'm just posting factually about who has rights to what.

 

The original IP owner ultimately has the rights to their IP and their original code. If they wanted to come along and stop CollectorVision from publishing their version, yes, they absolutely could.

 

But an additional third party, in this case Juice2839, does not have any rights to come along and sell either of these unmodified works as he does not own any rights to them at all.

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Ripping off an arcade game made by someone else is a little different than the red dress analogy. Think back to 1981: Atari had just paid a bunch of money to Namco for the rights to make a home version of Pac-Man.

Pac-Man was an international arcade hit, with lots of name recognition and goodwill. Atari was willing to pay Namco for a piece of that action. Waka waka.

Along comes North American Philips, who makes a very Pac-Man like game called KC Munchkin for its Odyssey 2 system. The game does well both critically and financially. Most people think it's better than Atari's BONK BONK blue square Pac-Man.

It's not fair that NAP got all the credit for a Pac-Man clone without paying for a license. It's not fair to Namco, and it's even worse for Atari, who paid big bucks to play fair. Using its supersidiary Warner Bros's lawyers, Atari sues for infringement. Warner/Atari wins, and KC Munchkin is removed from store shelves.

This was 35 years ago, but Cardillo of ColecoTM thinks he's entitled to the same treatment since he paid for the Coleco name. He posts these pseudo-legalistic orders in Facebook from a position of authority. He does this in spite of his tiny size and importance, apparently unaware he is a teeny tiny shadow of Warner/Atari, and without the benefit of lawyers. The stakes are low, and all he has to gain by "protecting" his trademark is the ill will of the relatively few people who might actually buy his stuff.

The homebrewers will continue with or without ColecoTM. Surely Cardillo is realizing that now?

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Technically modifying someone else's work where most of the new work is someone else's, is considered a derivative work in the US. If the new portions itself don't have any creative aspect to it than the new portions themselves are not copyrightable. Even if the new portions contain some new creative work, if it is done unlawfully than there is no copyright protection on the new work portions.

 

Edit:

I agree about passing judgement. Ethics and law are two different things. Robin Hood stole from the rich and gave to the poor.

Edited by mr_me
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Who says he paid for the Coleco name (other than a registration fee)?

 

I'm not sure what the new Coleco business model for the Coleco brand is. But if he wants to make money from a product he has to sell in the tens of thousands and hopefully much more. Alienating a group of a few hundred is not going to make much difference. Also collecting license fees from this group is not going to make much money either. However if you are going to have a brand and trademark than it is important for a number of reasons to protect it. That is why he might feel it is necessary to go after homebrewers that are using the trademark incorrectly.

Edited by mr_me
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Technically modifying someone else's work where most of the new work is someone else's, is considered a derivative work in the US. If the new portions itself don't have any creative aspect to it than the new portions themselves are not copyrightable.

 

I am not a copyright lawyer and I am just going off what I learned in the 22 years I worked in the video games industry and dealt with similar situations. I could be wrong and if I am, I apologize. That being said, though...

 

https://www.copyright.gov/circs/circ14.pdf

Screen Shot 2017-05-23 at 08.13.38.jpg

 

I do believe what the homebrewers are doing to port games from one system to another IS adding enough new original copyrightable authorship for that to work. But really, the question of how much work does it take to port a game to work on one system versus the other is a better question suitable for another thread.

 

I was simply just giving my reasoning behind what I feel is the answer to "how does one assert ownership over a "

 

Let's not try to stray too far off topic here, which really is...

 

This was 35 years ago, but Cardillo of ColecoTM thinks he's entitled to the same treatment since he paid for the Coleco name. He posts these pseudo-legalistic orders inn Facebook from a position of authority. He does this in spite of his tiny size and importance, apparently unaware he is a teeny tiny shadow of Warner/Atari, and without the benefit of lawyers. The stakes are low, and all he has to gain by "protecting" his trademark is the ill will of the relatively few people who might actually buy his stuff.

The homebrewers will continue with or without ColecoTM. Surely Cardillo is realizing that now?

 

Actually I do believe Flojomojo also deserves an award for that post!

Trophy-clipart-first-place-trophy-emoji-clipart-kid.jpg

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If you draw a picture of Mickey Mouse, you do not own the rights to the character Mickey Mouse, but you own the rights to that drawing. If someone else comes along and copies your drawing and tries to sell it, you have rights to the drawing that you can exercise.

 

It is confusing, yes. CollectorVision owns the rights to "Kung Fu Master for ColecoVision" even if they don't own the rights to "Kung Fu Master."

 

Still doesn't make sense to me. What if instead of copying Mickey Mouse onto paper with a drawing I used a different medium to copy Mickey Mouse to? For an example, I burn(draw) a Mickey Mouse movie(drawing) on a DVD(paper)? Did I commit copyright infringement with the paper, DVD, or both?

 

If CollectorVision doesn't own the rights to Kung Fu Master then is an act of copyright infringement(piracy) taking place when creating Kung Fu Master for the ColecoVision? If no then why not? If yes and I choose to sell copies of Kung Fu Master for the ColecoVision then wouldn't I be committing copyright infringement against other copyright infringers(a pirate taking the plunder of other pirates)? And would CollectorVision going after me for it be like someone calling the cops because someone stole their car even though they also stole the car from someone else?

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But you are also selling your OWN code that was written for the conversion to work, and that code that was written is owned by the creator, in this scenario CollectorVision, and they have rights to that.

 

 

Software piracy would be taking the original code, unmodified, and re-selling it.

 

As I said, I'm not going to pass judgement on what is "right or wrong" in this scenario, I'm just posting factually about who has rights to what.

 

The original IP owner ultimately has the rights to their IP and their original code. If they wanted to come along and stop CollectorVision from publishing their version, yes, they absolutely could.

 

But an additional third party, in this case Juice2839, does not have any rights to come along and sell either of these unmodified works as he does not own any rights to them at all.

 

What if he created custom labels for his carts making them an even more modified work? Does he own the rights to the custom labels?

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Still doesn't make sense to me. What if instead of copying Mickey Mouse onto paper with a drawing I used a different medium to copy Mickey Mouse to? For an example, I burn(draw) a Mickey Mouse movie(drawing) on a DVD(paper)? Did I commit copyright infringement with the paper, DVD, or both?

 

What if he created custom labels for his carts making them an even more modified work? Does he own the rights to the custom labels?

 

I completely understand that it's not an easy concept to grasp. It is confusing. The link I posted in post #372 should give you a bit more information. However, as I said above, I'm not a copyright lawyer, I'm just stating what I believe to be true based on my years in the video games industry and my professional background. This thread has probably strayed off-course a bit too much now focusing on that. Perhaps starting a new thread asking specific questions about video game IP rights versus homebrew IP rights may be more appropriate.

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If I make a port of Kung-Fu Master without the rights from Irem or whomever, I'm infringing on their copyright be taking their original idea and presenting it as my own without compensating them. Largely unenforceable, because no one cares.

 

If you take the ROM from my game, repackage it, and sell it as your own without my permission, you're taking from me AND infringing on Irem. Again, good luck to me to stop you, unless I go to the trouble and expense to hire some lawyers.

 

And since you're already a known bad hombre, and you slap the Colecovision name all over it, you're infringing on Cardillo's ColecoTM, potentially exposing him to liability should Irem or whomever come back from the dead and bring a lawsuit over the 12 retro-style cartridges you are trying to sell.

 

Cardillo doesn't want to be perceived as letting infringing stuff touch his brand, or he runs the risk of losing his trademark through abandonment. Same reason AtariTM's lawyers went guns blazing after Jeff Minter when he did that nice Tempest homage on PSVita. Enforce it or lose it.

 

I presume Cardillo paid for the ColecoTM name. Personally, I have trouble seeing how it would be worth more than it would cost to defend it. I want to make another post in Classic Gaming to the effect of, "so you've decided to buy an old trademark." Seems to me it's more trouble than it's worth unless you have a very particular non-financial interest in acquiring these names.

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This is all 100% correct...

 

If I make a port of Kung-Fu Master without the rights from Irem or whomever, I'm infringing on their copyright be taking their original idea and presenting it as my own without compensating them. Largely unenforceable, because no one cares.

If you take the ROM from my game, repackage it, and sell it as your own without my permission, you're taking from me AND infringing on Irem. Again, good luck to me to stop you, unless I go to the trouble and expense to hire some lawyers.

And since you're already a known bad hombre, and you slap the Colecovision name all over it, you're infringing on Cardillo's ColecoTM, potentially exposing him to liability should Irem or whomever come back from the dead and bring a lawsuit over the 12 retro-style cartridges you are trying to sell.

Cardillo doesn't want to be perceived as letting infringing stuff touch his brand, or he runs the risk of losing his trademark through abandonment. Same reason AtariTM's lawyers went guns blazing after Jeff Minter when he did that nice Tempest homage on PSVita. Enforce it or lose it.

I presume Cardillo paid for the ColecoTM name. Personally, I have trouble seeing how it would be worth more than it would cost to defend it. I want to make another post in Classic Gaming to the effect of, "so you've decided to buy an old trademark." Seems to me it's more trouble than it's worth unless you have a very particular non-financial interest in acquiring these names.

 

Especially this part right here:

 

Largely unenforceable, because no one cares.

 

Coleco cannot stop CollectorVision from making "Kung Fu Master" for the ColecoVision. They *CAN* tell CollectorVision not to put their logo on the box, and that's fine, the way things are going now I think I'd rather NOT associate myself with "Coleco." But I guarantee you those homebrewers are not going to stop making games for the ColecoVision.

 

Personally, I have trouble seeing how it would be worth more than it would cost to defend it.

 

Imagine if all the effort Coleco had exerted on all this stupid crap could have been put towards something positive, like, I don't know... making their Expo good. Imagine that...

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Still doesn't make sense to me. What if instead of copying Mickey Mouse onto paper with a drawing I used a different medium to copy Mickey Mouse to? For an example, I burn(draw) a Mickey Mouse movie(drawing) on a DVD(paper)? Did I commit copyright infringement with the paper, DVD, or both?

 

If CollectorVision doesn't own the rights to Kung Fu Master then is an act of copyright infringement(piracy) taking place when creating Kung Fu Master for the ColecoVision? If no then why not? If yes and I choose to sell copies of Kung Fu Master for the ColecoVision then wouldn't I be committing copyright infringement against other copyright infringers(a pirate taking the plunder of other pirates)? And would CollectorVision going after me for it be like someone calling the cops because someone stole their car even though they also stole the car from someone else?

I'm not fluent in copyright law or anything, and it can be incredibly complicated to navigate, but from what I understand (and I may be wrong here), there are multiple things at play here:

 

1. The copyright of the original work and whether the remake qualifies as a derivative work irrespective of other copyrightable or trademarkable considerations.

2. The trade dress of the work being copied/ported. This is your "likeness" or "look and feel" situation and falls in to the category of a type of intellectual property. This includes specific, copyrighted characters (such as your Mickey Mouse example).

3. The nature of the work's usage. (Private, personal use only, public exhibition (as art), commercial sale, etc.)

4. The name of the work (trademarked names, et al.)

5. The nature of the license(s) to use any of the above.

 

For 1, a port would be considered derivative as the code is going to be significantly different (i.e. it is unique to the platform it is being ported to since it will not run on any other platform).

For 2, see 5.

For 3, if you're just making a drawing for yourself or to show friends and family, that is not a violation of any copyrights or trademarks. Public exhibition and commercial sale are a different matter and require a license for the specific purpose. There are exceptions (particularly with respect to art), such as fair use laws for the purpose of criticism or parody, however, but that can be a fine line to walk. For example, the image that was ubiquitous years ago of Calvin (of Calvin and Hobbes) pissing on the Ford logo (and similar uses) did not qualify as fair use, and Bill Watterson was notoriously against them.

4 is obvious.

5 is about how the issue is licensed. An example given in a previous message is Atari licensing the Pac Man brand for the Atari 2600. The nature of the license was that Atari was given a license specifically to bring Pac Man to their home systems (Atari 2600, and later, the 5200 and 8-bit computers). They did not have a license to publish it anywhere else or merchandise it in any other way. So licenses can be specific, it just depends on what the developer works out with the license holder.

 

This is all as I understand it, and again, IANAL etc. so I may be wrong in some of this.

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Technically you are not infringing on the idea of Kung Fu Master because ideas are not copyrightable but you maybe infringing on the graphics/sounds/music. A label could be copyrightable if it is creative enough.

 

You are correct about protecting the trademark to risk not losing it. Another reason is to avoid getting sued. The new coleco could potentially get sued by association if his trademark is on software that violates someone else's properties.

 

You guys have some history of using the coleco trademarks. Don't let this guy push you around. Depending on who licensed what regarding the Colecovision Flashback there could be some violations there.

 

Edit:

Regarding ports being derivative works. A true port where the same code is reused ie "portable" would be a derivative because most of the new work is a copy of the original. But most people call remakes "ports". I dont think a remake would be a derivative because most of the work, the code, is new original work.

 

Copyright infringement is not necessarily piracy. Copying significant amounts of someone's code is.

Edited by mr_me
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Ripping off an arcade game made by someone else is a little different than the red dress analogy. Think back to 1981: Atari had just paid a bunch of money to Namco for the rights to make a home version of Pac-Man.

 

Pac-Man was an international arcade hit, with lots of name recognition and goodwill. Atari was willing to pay Namco for a piece of that action. Waka waka.

 

Along comes North American Philips, who makes a very Pac-Man like game called KC Munchkin for its Odyssey 2 system. The game does well both critically and financially. Most people think it's better than Atari's BONK BONK blue square Pac-Man.

 

It's not fair that NAP got all the credit for a Pac-Man clone without paying for a license. It's not fair to Namco, and it's even worse for Atari, who paid big bucks to play fair. Using its supersidiary Warner Bros's lawyers, Atari sues for infringement. Warner/Atari wins, and KC Munchkin is removed from store shelves.

 

This was 35 years ago, but Cardillo of ColecoTM thinks he's entitled to the same treatment since he paid for the Coleco name. He posts these pseudo-legalistic orders inn Facebook from a position of authority. He does this in spite of his tiny size and importance, apparently unaware he is a teeny tiny shadow of Warner/Atari, and without the benefit of lawyers. The stakes are low, and all he has to gain by "protecting" his trademark is the ill will of the relatively few people who might actually buy his stuff.

 

The homebrewers will continue with or without ColecoTM. Surely Cardillo is realizing that now?

 

Different in the specific details but I don't see how it is fundamentally different. Your Pac-Man argument seems to have circular reasoning in it to me because you are arguing for copyright because of copyright.

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I completely understand that it's not an easy concept to grasp. It is confusing. The link I posted in post #372 should give you a bit more information. However, as I said above, I'm not a copyright lawyer, I'm just stating what I believe to be true based on my years in the video games industry and my professional background. This thread has probably strayed off-course a bit too much now focusing on that. Perhaps starting a new thread asking specific questions about video game IP rights versus homebrew IP rights may be more appropriate.

 

But I'm trying to understand it in this specific case to see if a homebrewer and an unauthorized publisher are both pirates or only one of them to see if I think you are right, Cardildo is right, or if it is somewhere in between. And not only in the legal sense but if actual real stealing is objectively occurring.

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Personally, I have trouble seeing how it would be worth more than it would cost to defend it. I want to make another post in Classic Gaming to the effect of, "so you've decided to buy an old trademark." Seems to me it's more trouble than it's worth unless you have a very particular non-financial interest in acquiring these names.

 

I'd like to see that! The only group to ever come out ahead are the lawyers. It's like WOPR at the end of War Games, sometimes the best move is not to play.

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But you are also selling your OWN code that was written for the conversion to work, and that code that was written is owned by the creator, in this scenario CollectorVision, and they have rights to that.

 

 

Software piracy would be taking the original code, unmodified, and re-selling it.

 

As I said, I'm not going to pass judgement on what is "right or wrong" in this scenario, I'm just posting factually about who has rights to what.

 

The original IP owner ultimately has the rights to their IP and their original code. If they wanted to come along and stop CollectorVision from publishing their version, yes, they absolutely could.

 

But an additional third party, in this case Juice2839, does not have any rights to come along and sell either of these unmodified works as he does not own any rights to them at all.

 

Im pretty sure, original IP owner can come and claim rights to the ports done by someone else. But Colecovision is a dead platform they are not interested in. But I am sure it could be done.

 

Unfortunately project like that (Space invaders port, Kung Fu port, etc) are piracy and are stealing; and even though they might be cool, I always suggest homebrew developers against it. Stick to new content! We've past the ports, hacks, repros; the homebrew scene has to evolve and moving away from those kind of projects will be the first step.

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