Legal issues - Copyright holder of Lemmings

[0xdeadbeef]

As some of you might know, I'm working on a Lemmings/ONML remake written in Java at the moment in my spare time. As I started this, I didn't even know whether I would ever finish this, but now, though I'm still some weeks away from something you would consider a beta version, I'm beginning to think I might really finish this project.

In my attempt to recreate the original game as good as possible I'm using original sound effects, music tracks, graphics and level designs (mainly from the Win95 version). So chances are I infringe a copyright.

This is were the trouble starts regarding copyright issues.
Maybe some of you know about the fate of DHTLM lemmings.
http://www.xs4all.nl/~crisp/lemmings/lemmings.html
Also Cheapo doesn't seem to be available "officially" in the net any more.
Not very promising to say the least...

Already some weeks ago I started to figure out who might be in possession of the Lemmings copyright and whom I could contact to ask about the legal situation. Indeed I found out that these are no easy tasks.

At least my investigations showed me that DMA Designs was bought by Rockstar Games which again is owned by Take Two. Then again, Psygnosis - publisher of Lemmings - was bought by Sony as far as I know, so the situation is a bit nebulous.

Though I don't assume that my humble recreation will affect sales for the game (if it is still sold somewhere at all, which I don't know as well), it is neither my intention to infringe copyrights nor do I wish to get in trouble with the legal department of Take Two, Sony or whoever is the copyright holder at the moment.

So I tried to contact people at TakeTwo (I must admit I didn't find any email address of whatever on the sony sites that were worth trying) etc. In black despair I also tried to contact Mike Dailly and the author of DHTML lemmings. Unfortunately, nobody even answered my email.

I would be very glad if someone here could point me to someone who is able and willing to at least listen to my question for permission to use Lemmings media in a non-commercial remake of Lemmings.

[Jazzem]

Sony now own Lemmings, so you will be in a bit of a tight spot. How long has it been since you sent the email? Give them some time, they are buisnesses, and they may not necessarily be able to answer the email for quite a while.

[Proxima]

You could always use some of our designed levels (asking our permission, of course) rather than the official ones. Though that would'nt solve the problem as regards music, graphics etc.

[0xdeadbeef]

As I said, I didn't even find someone at Sony whom I considered worth contacting.
So if someone knows a person at Sony to contact, this would be a start. Though I doubt they will answer me.

About Levels: I don't think this would really help.

My rescue plan at this moment is to only deliver the game engine and extract everything else from an (installed) Win95 version. However, I changed lots of the resources in the mean time. Also this would be a lot of (boring) work and would somehow ruin large parts of my design.

[Leviathan]

Who cares about copyright anyway...I definately don't

I suggest try searching for backdoors in the copyright systems...there are always things that you can change to bypass their "rights" by adjusting minor things (like the music,just change a tone or two and then claim it's your own music)
As for levels,for example "just dig": just add a small terrain piece somewhere and voila,you have your own unique level and no-one can blame you.
As for the title,renaming it to lets say "lemmmings" should already do the trick

[Jazzem]

Lemmings are actual animals though, so they didn't really have the right to TM it

[LemSteven]

Lemmings are actual animals though, so they didn't really have the right to TM it

It's true that nobody can hold the copyright to the word "lemmings", but I believe that somebody can (and does) own the copyright to the green-haired Lemmings -- they're not real creatures.

As for the copyright issues, I would avoid distributing anything that may be an infringement.  If you create the game, but don't distribute it, there is no way for the copyright holders to know that you're infringing their rights.  Of course, this might defeat your original purpose for creating the game.

[Leviathan]

If they have the rights about green hairy creatures,just make their hair turn up red

[ccexplore]

Who cares about copyright anyway...I definately don't

I suggest try searching for backdoors in the copyright systems...there are always things that you can change to bypass their "rights" by adjusting minor things (like the music,just change a tone or two and then claim it's your own music)

Sorry, that's not the way copyright works.  Copyright also covers the concept of derivative work.  You can create derivative works and even claim your own copyright for the part that's purely yours, but you still need the copyright holder of the original work to grant you permission to derive from their work.

If you really care about being legal, I don't suggest trying to use a loophole that you're not sure about, unless you have advice from a real lawyer specializing in copyright laws.

[ccexplore]

In my attempt to recreate the original game as good as possible I'm using original sound effects, music tracks, graphics and level designs (mainly from the Win95 version). So chances are I infringe a copyright.

I'm surprised that it took you that long to come to terms with this.  I would think that you're aware of going down this path the moment you started ripping graphics off the Win95 version.

So I tried to contact people at TakeTwo

Don't bother.  AFAIK in the history of computer games, especially well-known commercial ones, there has never been a case of individuals being granted any sort of licensing terms beyond the boilerplate ones specified by the software's EULA.  Copyrights (and other IPs) are generally transferred or bought/sold/traded between corporations or similar business entities, often as part of an overall transfer of IP within a business acquisition or the like.

It also doesn't help that Sony is indeed currently planning to release a remake of Lemmings for the PSP in the near future.

In black despair I also tried to contact Mike Dailly and the author of DHTML lemmings. Unfortunately, nobody even answered my email.

Even if they did, I doubt they'd be of help.  Copyright laws have a "for-hire" clause whereby any creative work created by a paid employee hired by a company, means that the company, not the employee, owns the copyright.  And most companies, especially in the business of software, generally makes their employee sign an even more stringent agreement as part of their condition for employment anyway.

Though I suppose in the case of Mike, if he has graphics which were never used in the game and sufficiently different from the actual ones in the game, conceivably he could own the copyrights to such graphics.  But we haven't seen him around for a while.

[ccexplore]

It's true that nobody can hold the copyright to the word "lemmings", but I believe that somebody can (and does) own the copyright to the green-haired Lemmings -- they're not real creatures.

Well, you're confusing copyrights and trademarks.

But it's not true that you can't TM the word "lemmings".  I'm not an expert on IP laws, but I'm pretty sure most nouns can be trademarked, though keep in mind that trademarks only restrict the use of the word for branding purposes for a specific field of application.  So that if you create a new line of pants branded as "lemmings", since no one would confuse pants with computer games, the two TMs of the same word can coexist.

Still, since we are talking about computer software vs computer software here, you definitely cannot use the word "lemmings" in the Java remake without infringing the TM.

And yes, since the green-haired lemmings constitutes artwork, copyright will cover it.  Though it doesn't cover the concept of green-haired lemmings.

Anyway, I'm hardly any more knowledgeable than the average layman when it comes to IP laws, so take whatever I said above w/ a grain of salt.

[Leviathan]

There's always a backdoor in things like this...for example if you're not allowed by the law to use the name "lemmings",you can always use the name "lemmmings" or "lemmiings"...

However I'm not going to start a discussion about this,I can begin about plate companies going away with 90% of artist's profits from CD sale...but I won't.

There are 3 possibilities I think:

1)Do whatever you like and when Sony complains,close the official site but have the material spread across the internet on sites that are not "officially" yours.(illegal solution)
2)Try using backdoors in the system and talk to someone who knows about copyrights a lot (preferably a friend or family member,if you don't see another option,a lawyer) (semi-legal way)
3)Do everything by the book (legal way,but most likely Sony won't even reply)

[ccexplore]

My rescue plan at this moment is to only deliver the game engine and extract everything else from an (installed) Win95 version. However, I changed lots of the resources in the mean time. Also this would be a lot of (boring) work and would somehow ruin large parts of my design.

The game engine is probably the safest part to release in terms of IP issues.

Conceivably, as you have suggested yourself, you can leave the distribution of the actual graphics, sounds, etc. separate from the distribution of the game engine, that way you might be able to shift the liability to the person distributing the graphics/sounds/etc.

But perhaps Cheapo is a good example that despite issues with IP laws, it can still thrive in the proper environment.  Keep in mind that it does take time and money to actually pursue a case, so most companies generally start off with a threatening "cease and desist" letter first, which, despite whatever language it might use, has no legal bearings.  Only when you continue defying them afterwards do they actually start filing a case against you.

So it's not necessarily a bad thing to just blazantly do as you wish, and then when the big boys come down on your throat, go underground instead.  Kinda like how Cheapo has evolved.  As you see here, it is still thriving.

[ccexplore]

There's always a backdoor in things like this...for example if you're not allowed by the law to use the name "lemmings",you can always use the name "lemmmings" or "lemmiings"...

Trust me, if it's so simple that you can think of it, chances are it's already covered by the law. (And if it's not, you would've already found hundreds of examples out in the commercial world.)  Thus, my advice to talk to someone who really knows what they're talking about.

Besides, the name "lemmings" I think would be the least of 0xdeadbeef's worries. A rose by any other name would smell just as sweet.  The name "Cheapo" has hardly detracted from what the game's about.

However I'm not going to start a discussion about this,I can begin about plate companies going away with 90% of artist's profits from CD sale...but I won't.

Plates? :: It's probably best you don't start the discussion, I have a feeling you would only embarass yourself sooner or later.  (Either that, or I just don't understand what you said.)

2)Try using backdoors in the system and talk to someone who knows about copyrights a lot (preferably a friend or family member,if you don't see another option,a lawyer)

Hah!  You too are someone's friend and someone's family member, yet I'm not sure I would trust you for legal advice, sorry.  

[ccexplore]

There's always a backdoor in things like this...for example if you're not allowed by the law to use the name "lemmings",you can always use the name "lemmmings" or "lemmiings"...

I figure I might as well explain the way I understand trademarks to work.  Again, I'm not an expert on this, so take anything in this post with a grain of salt.

Basically, for trademarks, the concept of infringement is that you have two companies producing two products that has similar in function and form, and the second company is naming its product "too similarly" to the first company, thereby potentially confusing consumers and potentially steal away businesses from the first company.

So what happens when you register a trademark is that you basically register an association between your product and either a specific word or a specific short phrase that identifies (brands) your product.  Then if some other company comes along with a product that is similar, and they decided to brand it with a name that can potentially be confused with your TMed name, you can then sue them for TM infringement and have the court decided whether infringement occurs and what the settlement would be.

Obviously, like a lot of laws, there are very definite gray areas built into it, one of which is what exactly constitute "similarity".  However, I think it's fair to say that the word "Lemiings" is far too close to the word "Lemmings" (a magazine for example could've easily made a typo resulting in the misspelled form), and since both products are also similar in function and form (a computer game whereby the player directs a group of tiny creatures towards a goal thru the use of a limited set of moves), it is practically a certainty that if the case was brought to the courts, the verdict would be that infringement has occurred.

It becomes more grey when you start deviating a little more, like calling it "clems" or something.  But since the English language gives rather vast naming possibilities, and since generally you want your brand to distinguish itself as much as possible from your competitors, most companies will actively seek to come up with and trademark a name that is as distinct as possible from the existing ones in the market.  So rather than risking "clems", they would much prefer to go with something like "Dimwits" or "Fools" or whatever.

[Leviathan]

Plates? :: It's probably best you don't start the discussion, I have a feeling you would only embarass yourself sooner or later. &#A0;(Either that, or I just don't understand what you said.)

I meant record companies like "spinefarm records" or things like that...I guess my english translation of the Dutch word "platenfirma" was badly chosen.

[ccexplore]

Ok, I thought you meant record companies.

Plate companies would be making the flat circular thing you put your food on.  

And I keep forgetting that this is international, so it's possible that laws differ slightly from country to country.  What I know of course is most closely related to U.S. laws.  Come to think of it, I wonder if switching the word "lemmings" to another language could sidestep the issue?  (I won't risk it but who knows?)

[Mindless]

My rescue plan at this moment is to only deliver the game engine and extract everything else from an (installed) Win95 version. However, I changed lots of the resources in the mean time. Also this would be a lot of (boring) work and would somehow ruin large parts of my design.

Hmm... IMHO, this is the way to go, but what kind of changes have you made? And what parts of your design would be ruined?  I'm sure we can figure out ways to make everything work, since I'm really looking forward to your game.

In reality, there's very little chance that even Sony would take notice of a new Lemmings clone, or even distibuting the original files.  

Edit: And if you do need the files to be modified, I can write a patcher, and you can have the user mass-patch the original files to your liking.

[0xdeadbeef]

I'm surprised that it took you that long to come to terms with this.  I would think that you're aware of going down this path the moment you started ripping graphics off the Win95 version.

Of course I was aware, but as I said: as I began, I never really believed this would end in a fully playable game worth releasing.

Don't bother.  AFAIK in the history of computer games, especially well-known commercial ones, there has never been a case of individuals being granted any sort of licensing terms beyond the boilerplate ones specified by the software's EULA.  Copyrights (and other IPs) are generally transferred or bought/sold/traded between corporations or similar business entities, often as part of an overall transfer of IP within a business acquisition or the like.

Yeah well, some companies gave their once commercial  games into the public domain, some released source code etc.
It's not like you could earn a lot of money by re-releasing the _original_ Lemmings in 2005. So if businessmen were receptive to human logic, there would be a chance. Unfortunately, the usually aren't

It also doesn't help that Sony is indeed currently planning to release a remake of Lemmings for the PSP in the near future.

Bad timing I guess. However, this is a completely reworked version for a completely different system, so the is really no impact IMHO.
I borrow from the Win95 version, so my first goal is to find out who own the copyright to this version, then who holds a "general" lemmings copyright.

Even if they did, I doubt they'd be of help.  Copyright laws have a "for-hire" clause whereby any creative work created by a paid employee hired by a company, means that the company, not the employee, owns the copyright.  And most companies, especially in the business of software, generally makes their employee sign an even more stringent agreement as part of their condition for employment anyway.

Hm, I think you got me wrong. At this moment, I didn't ask anybody for any permission. I just try to find out WHOM to ask and since there is no chance to get an aswer if I write to any "official" address, it would somehow help me to find someone inside Sony/Take2 who is at least willing to listen to my plea.
I'm aware that chances are low that someone will give me a sensible answer. And they are close to zero that my plea will be granted. However, at least i want to TRY to ask.

Though I suppose in the case of Mike, if he has graphics which were never used in the game and sufficiently different from the actual ones in the game, conceivably he could own the copyrights to such graphics.  But we haven't seen him around for a while.

As I said, you got me completely wrong here. It's not that I asked Mike for permission because I'm well aware that he surely doesn't own the copypright. I just asked him - amongst other people - if he could clarify the legal situation (e.g. whether Sony or Take2 hold the copyright).
Chances are that he knows someone "behind the scenes" whom I may ask.

Maybe they would tell me that even if I released only the engine, they would sue the crap out of me. It's just that I want to know where I'm standing and what to expect.
I'm just not keen on getting into legal trouble because of something that I do for fun.

[ccexplore]

Which is actually why it's possible that you could be better off not contacting Sony/whatever-big-company so they are not alert to this so soon, well before you are even close to finishing the game.  Although I guess contacting Mike could be worth a try.

But really, call me cynical but I think it's more likely to be a fruitless try than anything else (I can hardly imagine anyone "behind the scene" having that much power and motivation to do something for some, well forgive the harshness, "nobody''), but like one of the Genesis levels, I guess one should "try anything once".

Incidentally, if you really are going to go for a plea, I suggest turning it into some form of petition that all of us here can sign somehow, so that the company cann't just dismiss it as the cry of the lone wolf.  (Of course, the cry of 100 lone wolves ain't much either, but still a stronger cry )

[ccexplore]

Yeah well, some companies gave their once commercial &#A0;games into the public domain, some released source code etc.
It's not like you could earn a lot of money by re-releasing the _original_ Lemmings in 2005. So if businessmen were receptive to human logic, there would be a chance. Unfortunately, the usually aren't

It's possible they would be worried, especially with the release of the PSP remake, that release the original into public domain can jeopardize some aspects of the IP standings of the PSP remake.  It's certainly a complication they probably won't care to investigate if they don't have to, and they won't have to if they don't release the original to public domain or the like.

Moreover, you cannot deny that a free version of the original game has the possibility to compete with the PSP remake, despite the differences in platform and other aspects.  At least one person here (LemSteven) mentioned how he found little reason to buy a PSP and pay for the game, when he's already playing the original games for free.

This is the kind of arguments business logic would come up with, fair or not.

[Conway]

As long as the game isn't being sold commercially, I don't see what the problem is. You're not competing with Sony for a profit, you're just making a fan game. You're not making money from they're fundamental game concept, so they should have no complaint, even if they do find it.

 And I seriously doubt the existence of another fan game will affect future sales of the official games.

[ccexplore]

As long as the game isn't being sold commercially, I don't see what the problem is. You're not competing with Sony for a profit, you're just making a fan game. You're not making money from they're fundamental game concept, so they should have no complaint, even if they do find it.

 &#A0;And I seriously doubt the existence of another fan game will affect future sales of the official games

That's generally what fans argued with regards to fan games, but it's still the point that when the fan game is so close to the original in look and feel, it would act as a free version of the official game and therefore may cause certain consumers that might have bought the official version to get the free version instead.  This would be a business loss for the company.

I certainly am not saying the argument is bulletproof, but this is the general principle behind it.  In effect, you are "selling" the fan game for $0.  I too doubt that the effect will be significant since it seems like right now there isn't significant overlap yet between the PSP Lemmings crowd and the "old-school" Lemmings crowd here, but we can certainly point to LemSteven as an example evidence of a consumer whose decision has been influenced by the availability of these "free" versions of Lemmings.

(In case you're confused: keep in mind that this doesn't you can't have competing products, just that you cannot have a competing product that is produced mostly by copying an existing product, in effect stealing the time and efforts the company spent on the existing product.)

[Mindless]

Any progress update?

[ccexplore]

I sure hoped I didn't scare 0xdeadbeef out of this (then again, it sounded like he himself was more worried about copyright issues than anyone else here).

If you did decided to let the big companies have their way and abandon your project to the disappointment of everyone here, at least let us know now and relieve us of a diet of false hope.

[0xdeadbeef]

I decided some weeks ago to extract (most of) the resources from the Win95 version to stay clear off copyright issues.
However, I had little to no spare time lately and to be honest, writing this extractor/patcher is kinda boring work.
However, as soon as I have a little more time (hope in two weeks or so), I plan to continue...
If I have the extractor/patcer working, I think I will annouce a public beta here.
But this will be most probably more like mid/end december.

[Mindless]

Glad to know you didn't give up on it.  

[Mike]

For the record, copyright was jointly own by Dave/DMA and Psygnosis with DMA recieving first refusal on any Lemmings projects Psygnosis wanted to have done. DMA Passed on 3DLemmings, which is why someone else did it.

However, Dave then sold his half back to Psygnosis making them sole owner. When Sony bought them, they also bought the Lemmings brand completly too.

Take 2 dont own anypart of it. They published revolutions I believe because Sony didn't want to, so a deal was done - probably cutting Sony in on the royalties.

"Lemmings" is a trademark, and believe me when I say, you dont want to "have" to go to court to argue it - they have more money than you. Pick another name, or use penguins or "Pingus" instead. Anything that gives the feeling of "lots" of them...like "ants" or something.

If you use the graphics directly, then you're in breach of copyright, but theres nothing stopping you from redrawing it and making new levels.

If you plan to allow you "Java" game on other platforms, then simply use the graphics from a win95 release - but dont supply them. This means the "public" can go and buy a legal copy, then use your program to run it on (say) a mac, or Linux. This is legal (I believe) since your not supplying copyrighted data, just using it when they have legally purchased it.

But the rule of thumb when dealing with any big company, is avoid anything that "may" land you in court. They have more cash.

[0xdeadbeef]

Thanks for the reply.
Indeed the last thing mentioned is the way I plan to go as hinted some posts above: when starting for the first time, the program will ask for a Win95 CD or installation and then the resources will be converted to something I can use. However: I need to patch some resources because they were buggy in the Win95 release of because I did rework them for some reason. Lust but not least, I need to bundle some resources not contained in the Win95 release (special levels, mod music).
Yeah well, I fear that if Sony's lawyers have a bad day, they will find a way to sue me anyway. To some point, I just have to hope that they don't feel it's worth it.

[tseug]

They will be having a bad day for some time...
http://en.wikinews.org/wiki/Electronic_Frontier_Foundation_sues_Sony_over_CD_technology
They might even ignore you.

[ccexplore]

Hey yeah.  This reminds me about the recent fiasco about how Sony is getting sued for their rootkit/malware-like CD copy protection technique.  Looks like the Sony lawyers will have a lot to keep them busy.

[ccexplore]

Oh wait, that's the same lawsuit tseug was talking about.

[Sarendt]

Can you make your version of the game "work" with some other graphics, like squirrels or something, and provide an interface where users create and save their own images that will show up in the game?  It might be a fun idea, like Make Your Own Opoly?  I see lots of posts with individual interpretations about the look of a lemming... lots of variation there.  So, maybe everyone's idea of the look of a lemming is different?  Plus, people could just insert any images they happen to have laying around and it wouldn't be your responsibility what they choose.  No ideas about sounds, but I think it might be fun to make my own lems to use.

Plus, when a person registers a trademark or applies for one, they have to register with someone, like the US Patent office I think???  Is that a place to start?

[0xdeadbeef]

All graphics will all be in GIF format and can be easily exchanged.
Especially creating own graphics sets will be very easy as also the configuration files are plain text files.

However, for the lemmings, there is a lot of "special" treatment necessary to get everything to work like it should. In my first attempt I tried to make everything configurable as well, but it soon became clear that this would be a major effort. So I mean, you can exchange the e.g. digger graphics and even the digging mask, but some things like the animations frames where to dig etc. are "hard coded".