NES Way of the Exploding Fist

[Mayhem]

I keep getting distracted when trying to put something together for the ROM release, maybe by Xmas...?

[user42]

Was this rom ever released?

[moycon]

Wow Blast from the past.

It seems maybe there was a legal tangle over this game?

[+Andrew Davie]

Wow Blast from the past.

It seems maybe there was a legal tangle over this game?

 

None that I'm aware of. It was just a bit late to market; by the time it was finished, the market was demanding much more sophisticated games, and it never found a publisher.

Cheers

A

[Mayhem]

Actually, really bad on my part... I still haven't gotten around to doing anything for it to be published yet. Oooooooooookay, let's see if I can remember this month...!

[Superman]

Way of the Exploding Fist looks good. It reminds me of Karate Champ and I love that game.

[+Andrew Davie]

Actually, really bad on my part... I still haven't gotten around to doing anything for it to be published yet. Oooooooooookay, let's see if I can remember this month...!

 

Which year?

[Mayhem]

Heh... as it turns out the new owner of the proto, to my knowledge still, wants to organise a repro run of the game and hence asked me not to release the ROM until further notice.

[+Andrew Davie]

Heh... as it turns out the new owner of the proto, to my knowledge still, wants to organise a repro run of the game and hence asked me not to release the ROM until further notice.

 

Looks like I'm going to have to resort to legal threats/action to recover what is, in reality, my intellectual hard work. After all, I developed this on my own when based in Chicago, and it was never paid for or released by a publisher. I've been a nice guy so far...

[MrMark0673]

Why not try to strike a deal with the current owner? You'd get the ROM and actually finally get some cash from all your hard work you put into the project. Intellectual copyright is not one of the easiest things to win in a court battle, you may end up spending thousands to save hundreds.

 

Who is the current owner of the proto?

[godslabrat]

Why not try to strike a deal with the current owner? You'd get the ROM and actually finally get some cash from all your hard work you put into the project. Intellectual copyright is not one of the easiest things to win in a court battle, you may end up spending thousands to save hundreds.

 

Who is the current owner of the proto?

 

If the original artist stands to gain/lose by this, I for one will factor that into my decision to buy this cart. If it's sold in such a way that Andrew benefits, then I'll be 100% sure to buy one. If not, I'll scratch the game completely off my list.

[Mayhem]

Looks like I'm going to have to resort to legal threats/action to recover what is, in reality, my intellectual hard work. After all, I developed this on my own when based in Chicago, and it was never paid for or released by a publisher. I've been a nice guy so far...

 

If you want a copy of the ROM Andrew them PM me with the email address you wish me to send it to. I can't see why you shouldn't have it to be honest...

[GonzoCV-1]

Looks like I'm going to have to resort to legal threats/action to recover what is, in reality, my intellectual hard work. After all, I developed this on my own when based in Chicago, and it was never paid for or released by a publisher. I've been a nice guy so far...

 

If you want a copy of the ROM Andrew them PM me with the email address you wish me to send it to. I can't see why you shouldn't have it to be honest...

 

Hi,

 

Lawyer type here. I offer these comments in the nature of a legal commentary and not as advice to anyone. Get your own lawyers. You can't afford me.

 

That said: The physical embodiment of the program in a proto cart is an interesting case. Normally the "first sale" doctrine would mean that an existing embodiment of the commercially sold cart can be sold, resold, and resold again without consent etc of the copyright holder. That one copy can be in anyone's hands. Just like used books, you see.

 

However, its clear on its face that this program was never released to commercial channels. I'm not sure the first sale doctrine would apply. I'm not sure if the court's have confronted such a case. There are cases where a prototype of software or a manuscript was stolen in development and everyone down the chain had to surrender copies of the obviously purloined copyright material. For anyone down the line, the question is whether you're a good faith holder. You can't have good faith when you're holding a copy of Metallica's new album 5 months before the release date, for example.

 

But here, its possible the proto was in the hands of a software house under NDA and limited try-out license, and then the software house simply collapsed or went out of business. There may be some interesting legal issues as to ownership of the physical "cart" itself.

 

What I do know is that COPYING and distributing ROM dumps, or a "run" of cartridges based on the ROM would most certainly be subject to an injunction and damages by the author of the material, assuming he took revision of the copyright when the project didn't sell (typical 1980s and 90s development agreements usually provided a reversion of copyright to the author, so that the author could try to peddle the program if the software house refused or was unable to. My guess is that a decent copyright firm will consider this a slam dunk. Even if Andrew does not still have sole rights "Beam Software" is still around in the form of Krome Studios Melbourne and they might be inclined to stomp this sort of thing.

 

What distresses me is that there is so flippant an attitude to screwing the author over here. As soon as he appeared in this thread, the guy with the cart made a transparent effort to have the author buy his own work back with others bidding against him. Now there's apparently another party in the mix who can't wait to have people pay money based on the author's work. Sickening.

 

In my humble opinion this is what should happen if people were smart: The author should get a copy of the binary. He probably will probably be perfectly willing to leave the "proto" cart in whoever's hands it lands in, but will then be in the position (as is his right) to license such copying of the ROM or repro carts as he determines. Maybe he'll go for free broad release. Maybe he'll do the run of repros. His copyright, his call.

 

But if people (not him) keep after this idea of releasing profit projects at his expense, he'll have to hire a lawyer. And in the end, it will get ugly. Go look up "disgorgement of profits" if you're thinking of profiting from a release of the game. My guess is the damages the author will get will be more than what is made (considering the wilful infringement will get him his attorneys fees). In the end, he'll probably end up owning the original proto anyway.

 

As we say in my business, there's an easy way and a hard way to get to the correct outcome. Which will it be?

Edited August 1, 2009 by GonzoCV-1

[MrMark0673]

You're right, it's that easy. If you have a minute, you should contact Nintendo (you know, the multi-billion dollar company) and have them close down the following repro sites:

 

http://vintagetshirtdepot.com/

 

http://www.nesreproductions.com/

 

http://www.retrousb.com/

 

Plenty of copyrighted and licensed material straight from Nintendo on those sites, it's a slam dunk case!

 

Of course, they're not going to have the pulling power or lethal legal team that "Krome Studios Melbourne" (who?) is going to have, but I bet they could make a decent effort.

 

As I know, there has been one hight profile video game prototype legal struggle (Resident Evil 1.5) that got ugly, and even then I think the owner lost the proto and $1.5k. That was from Nintendo who was interested in the rights of a high profile, current franchise. Ever once in a while, you'll see a cease and desist order, that's all.

 

Andrew: Contact the current owner and strike a repro deal. Make some money on the release, get some high profile credit for all of your hard work, and get the binary back. This thing was junked until it was discovered (and then sold), you can benefit from the interest of this collector in this prototype.

Edited August 1, 2009 by MrMark0673

[GonzoCV-1]

You're right, it's that easy. If you have a minute, you should contact Nintendo (you know, the multi-billion dollar company) and have them close down the following repro sites:

 

http://vintagetshirtdepot.com/

 

http://www.nesreproductions.com/

 

http://www.retrousb.com/

 

Plenty of copyrighted and licensed material straight from Nintendo on those sites, it's a slam dunk case!

 

Of course, they're not going to have the pulling power or lethal legal team that "Krome Studios Melbourne" (who?) is going to have, but I bet they could make a decent effort.

 

As I know, there has been one hight profile video game prototype legal struggle (Resident Evil 1.5) that got ugly, and even then I think the owner lost the proto and $1.5k. That was from Nintendo who was interested in the rights of a high profile, current franchise. Ever once in a while, you'll see a cease and desist order, that's all.

 

Andrew: Contact the current owner and strike a repro deal. Make some money on the release, get some high profile credit for all of your hard work, and get the binary back. This thing was junked until it was discovered (and then sold), you can benefit from the interest of this collector in this prototype.

 

 

Thanks for the snark. I'm not surprised.

 

The reason Nintendo does not generally screw with this stuff is that as a function of its overall earnings, repo carts aren't doing much.

 

But if someone pokes them in the eye, they do indeed get involved: (See USA Today Article)

 

Here, on the other hand, what some guy makes selling copies of the author's work with out the author's permission will be a number that represents a much larger percentage than a mere "drop in the bucket" (as it were) in terms of the Author's typical monthly take.

 

Nintendo does not flatten those sites, but it could pretty much at will. And my view is that the brazen posts in this thread get the author over the hump in terms of proving willful infringement.

 

See the news story this weekend about the multi-hundred thousand copyright award against the kid who shared twenty sings on a file sharing site?

 

Alas, I guess you're right. Copyrights aren't ANYTHING to worry about.

 

Have fun with that.

[the.golden.ax]

Well my take on it is if the game is available as a dumped rom andrew can download it and should produce it claiming on it's face and in any marketing that it is his work and it is the only offical release. Anything else is just simply a bootleg. I'll buy one if you make it available.

 

AX

[DreamTR]

You're right, it's that easy. If you have a minute, you should contact Nintendo (you know, the multi-billion dollar company) and have them close down the following repro sites:

 

http://vintagetshirtdepot.com/

 

http://www.nesreproductions.com/

 

http://www.retrousb.com/

 

Plenty of copyrighted and licensed material straight from Nintendo on those sites, it's a slam dunk case!

 

Of course, they're not going to have the pulling power or lethal legal team that "Krome Studios Melbourne" (who?) is going to have, but I bet they could make a decent effort.

 

As I know, there has been one hight profile video game prototype legal struggle (Resident Evil 1.5) that got ugly, and even then I think the owner lost the proto and $1.5k. That was from Nintendo who was interested in the rights of a high profile, current franchise. Ever once in a while, you'll see a cease and desist order, that's all.

 

Andrew: Contact the current owner and strike a repro deal. Make some money on the release, get some high profile credit for all of your hard work, and get the binary back. This thing was junked until it was discovered (and then sold), you can benefit from the interest of this collector in this prototype.

 

 

Thanks for the snark. I'm not surprised.

 

The reason Nintendo does not generally screw with this stuff is that as a function of its overall earnings, repo carts aren't doing much.

 

But if someone pokes them in the eye, they do indeed get involved: (See USA Today Article)

 

Here, on the other hand, what some guy makes selling copies of the author's work with out the author's permission will be a number that represents a much larger percentage than a mere "drop in the bucket" (as it were) in terms of the Author's typical monthly take.

 

Nintendo does not flatten those sites, but it could pretty much at will. And my view is that the brazen posts in this thread get the author over the hump in terms of proving willful infringement.

 

See the news story this weekend about the multi-hundred thousand copyright award against the kid who shared twenty sings on a file sharing site?

 

Alas, I guess you're right. Copyrights aren't ANYTHING to worry about.

 

Have fun with that.

 

 

The kiosks things are brazen and all over the place. Heck, we have a mall here in Nashville (Opry Mills Mall) where one of those kiosk people do the exact same thing. Bootleg Nintendo controllers with plug and play 1021921992910 games trumps some unreleased NES games getting reproed because if the game never came out, Nintendo can not legally say (unless it is THEIR 1st party property and it is still being utilized) they are losing some type of revenue stream.

 

If Joe Blow finds a game at a tag sale and sells repros of it and there's no licenses or proof of wtf owns it, not really much can be done about it, though I do disagree that if Andrew owns the RIGHTS and note I said RIGHTS to this game, he has every right to the binary file, but not necessarily the physical cart. If Beam or whoever OWNS the rights TO said game, and you are talking a legal battle stretching multiple continents, it's not really worth the time involved. Cease and desist I can see eventually, but no one's made repros yet.

 

I also agree that if Andrew gets the game since he WROTE it, HE should get repros made on the thing and sell it ala Rob Fulop and get it out there for people to purchase.

Edited August 2, 2009 by DreamTR

[MrMark0673]

If Joe Blow finds a game at a tag sale and sells repros of it and there's no licenses or proof of wtf owns it, not really much can be done about it, though I do disagree that if Andrew owns the RIGHTS and note I said RIGHTS to this game, he has every right to the binary file, but not necessarily the physical cart. If Beam or whoever OWNS the rights TO said game, and you are talking a legal battle stretching multiple continents, it's not really worth the time involved. Cease and desist I can see eventually, but no one's made repros yet.

 

Agreed 100%.

 

Gonzo, you can talk all the shit you want and blab about theoretical situations until you're blue in the face if it makes you happy. Bottom line is, if it we're such a "slam dunk" situation for someone to go to court over international intellectual copyrights, you'd see a lot more of it.

 

Andrew deserves a copy of the BIN of the game he developed, and if he doesn't get a hand out copy of game he didn't give a shit enough about to ensure that he kept it backed up somewhere, he is going to have a hell of time getting it back in court.

[+Andrew Davie]

... and if he doesn't get a hand out copy of game he didn't give a shit enough about to ensure that he kept it backed up somewhere, he is going to have a hell of time getting it back in court.

 

It is to my eternal regret that I did not, in fact, keep ANY source code or binaries when I left Beam Software. I was legally required to delete/return all work that I had done whilst working for them and I did not want to leave myself open to ANY suggestion of impropriety. In particular, I deleted ALL software, tools, binaries, etc.. As I said, to my eternal regret, as some important work was lost for good.

 

A few years ago I found a box of floppies that I'd missed, which had some interesting source code related to Bigfoot scrolling system, and some other stuff I forget. But of course these were kept inadvertantly and I have, of course, never distributed them.

 

Note, I did not just TELL Beam I deleted stuff. I *actually* deleted stuff, because it was the right thing to do. To accuse me of "not giving a shit" is quite incorrect. I cared, but the moral and legal requirements were an overriding issue in regards to "keeping copies" of work done whilst I was at Beam. At the time, I thought that the game was going to production and I had no reason to suspect it would be "lost" and never published.

 

Cheers

A

[GonzoCV-1]

... and if he doesn't get a hand out copy of game he didn't give a shit enough about to ensure that he kept it backed up somewhere, he is going to have a hell of time getting it back in court.

 

It is to my eternal regret that I did not, in fact, keep ANY source code or binaries when I left Beam Software. I was legally required to delete/return all work that I had done whilst working for them and since I was moving to a competitor, in effect, I did not want to leave myself open to ANY suggestion of impropriety. In particular, I deleted ALL software, tools, binaries, etc.. As I said, to my eternal regret, as some important work was lost for good.

 

A few years ago I found a box of floppies that I'd missed, which had some interesting source code related to Bigfoot scrolling system, and some other stuff I forget. But of course these were kept inadvertantly and I have, of course, never distributed them.

 

Note, I did not just TELL Beam I deleted stuff. I *actually* deleted stuff, because it was the right thing to do. To accuse me of "not giving a shit" is quite incorrect. I cared, but the moral and legal requirements were an overriding issue in regards to "keeping copies" of work done whilst I was at Beam. At the time I left, I thought that the game was going to production (it was the last game I did for them) and I had no reason to suspect it would be "lost" and never published.

 

Cheers

A

 

 

Andrew, do you have your employment stuff from Beam? Your paperwork will make clear the biggest legal issue, mainly being whether Beam had authors like you standing as co-owners of the copyright, or made you sign on as "work for hire" situations, in which case you never had any copyrights in the game at all and produced it for Beam only. Even then, many developer agreements had clauses that abandoned projects (shelved or deemed unmarketable) would be assigned or revert to the author, so if you can locate that stuff you'll be able to see.

 

If you were _not_ a work for hire situation (something Beam or its successor would have to prove by producing the work for hire agreement), then even if Beam took assignment of copyright, under the terms of the 76 act (effective in 78), you might be able to obtain full reversion as author 35 years from the date of creation. Of course, that's a long damn time from now.

 

For the rest of you armchair experts, we'll have to agree to disagree. The fact that you take your reading of the scope of copyright law from the absence of "Goliath versus David" lawsuits just shows me you don't understand the marketplace or how these things work. Yeah, Nintendo and the other big guns are reticent to go after hobby guys who aren't seriously undermining revenues, but that's only because everyone remembers the Phill Kats / SEA lawsuit years ago and how those "PR" wars end up going. Its also because there are never lawsuits because the cease and decist letters are enough. Someone receives one, they take their site down, and that's it. There arent' lawsuits because no one fights them. They know they'll lose. Any of the sites named above would shut down immediatley if a C&D letter came. Hard to use them as evidence that its "OK" to distribute repos or copies without a holder's permission, it seems to me.

 

Hey, to each his own. In this case all I can say is that I will vote with my $$ and will not buy a "repo" (even though I loved this game on the C64) unless its on a project that has Andrew's support.

 

 

 

On the other hand, there are thousands of little copyright cases every year. Where the infringement matters enough to someone that they file to stop it. If Andrew can cobble together evidence to support a colorable claim that he's the copyright holder, he can get an injunction against reproduction practically at will. He's got the evidentiary burden of proving up his rights. But if he does so, its pretty much over.

[+Andrew Davie]

Andrew, do you have your employment stuff from Beam?

 

In actuality all I want is a copy on a cart I haven't seen it for almost 20 years.

Cheers

A

[the.golden.ax]

Andrew, do you have your employment stuff from Beam?

 

In actuality all I want is a copy on a cart I haven't seen it for almost 20 years.

Cheers

A

 

Crap, Shawn Sr. could make one I'd think... he makes repros all the time. I can play it on my flash cart from Retro USB... but I'd pay for it as a collectors item if made into an actual homebrew release where you got paid for your work. I think that 100+ people would be glad to shell out $50+ if it came with a box.

 

AX

[mattyg]

Andrew, do you have your employment stuff from Beam?

 

In actuality all I want is a copy on a cart I haven't seen it for almost 20 years.

Cheers

A

 

Crap, Shawn Sr. could make one I'd think... he makes repros all the time. I can play it on my flash cart from Retro USB... but I'd pay for it as a collectors item if made into an actual homebrew release where you got paid for your work. I think that 100+ people would be glad to shell out $50+ if it came with a box.

 

AX

 

agreed - I'dbuy it for that if proceeds were going to Andrew - if only to correct this situation

[Tempest]

Why not give Andrew a cut of the profits from the repros? That's what Al does with homebrews and Andrew is the author of the game.

 

Tempest

[MrMark0673]

Why not give Andrew a cut of the profits from the repros? That's what Al does with homebrews and Andrew is the author of the game.

 

Tempest

 

 

Exactly what I've suggested several times already. If the game uses a fairly simple mapper, I could even help with making repros like I did with Hoppin' Mad.