Well, whether or not the derivative work is put up for sale is relevant; it's just not by itself decisive. Fair use is an "all the facts and circumstances" (translation: the lawyers are going to make a lot of money either way) determination. Putting your derivative work up for sale is a strong indicator that it is not fair use, but giving it away for free is not a strong indicator that it is fair use.

There are more issues than just the game copyright holder's consent, too, because the copyright holder may have in turn licensed some of the work from third parties. This is especially true in games, because much of the artwork and music is done by third-party artists who hold copyrights and licensed their work to the game author solely for use in the game.

It's not piracy in any sense. Although there could be instances of copyright infringement and, if sold copyright theft.

Ultimately it's up to the IP holder to decide for themselves whether or not such projects are legal. The proof is in a thing called international copyright law. If you want proof read up on that rather than listening to the hyperbole and lies of the likes of the music industry that, if judged by their own standards, would cease to exist in its collective entirety.

If they are distributed for free and don't appear to impair the market for the original game, the IP holders generally aren't against it. Some IP holders, like Bethesda, go so far as to set up a framework under which it's OK to distribute fan-made work.

As soon as you try to make any money off of it, or claim derivative work as your own, they are right in coming down on you like a barrel of building-bricks.

Sure I can - for example, if you buy an RPG book you can always see "Copyright owner allows to photocopy this page for personal use". And I can, absolutely legally, photocopy that page even if they forbid me to do so, and I can photocopy other parts of the book, of course for my personal use.


Fair use is an US law system institution. European law is a little bit different in that matter, afaik (I know it is in my country, and IP law is similar in every European country).
If IP holder knows about fan game (free), and tolerate it, then it's kind of silent permission, isn't it?

I was using a different meaning for the word "fan" as a delivery thing for that image joke :p

In that case it exists in a grey area. Nothing would stop them from bringing the hammer down at any time.

Sleeping on one's rights is not the same thing as giving permission. You can wake up and invoke those rights at any time. That said, few companies are going to have much of a problem with free fan-made works. Just don't try it with the IP of the known pit bulls of the industry, like Nintendo, Sony, Lucas Arts, etc.

"Fair use" ('fair dealing" in the UK and Commonwealth) is, you are right, a principle that applies only in common-law countries. Many other countries have far stricter limitations on conditions under which you can make a derivative work that might infringe a copyright.

When in fine print it's said "Do not use without permission", then it's illegal.

It makes a difference if company knows about fan game or not. If they know, and tolerate, then it may be considered as a permission, even though it's not an explicit one. Of course it's a question how someone would proove that company knew about fan game, but I guess someone could just show that it was well known in the Internet.

Of course, they (IP holders) can change their mind, but that would be revoking permission, not the lack of permission "from the beginning".

And as some countries have far stricter limitations, some other countries have them less strict (and still fit into international IP law conventions, I'm not referring to those countries that allow breaking IP law).
It's not grey area, it's just the permission which can be revoked any time.


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Anyway, the only thing that one may expect from IP holder in case of fan game is the Cease and desist letter. Companies make money, and they got their money from fan. Suing your own fan = less money. So I think it's nothing to worry about, as long as you don't get profits from fan game.

as it was already mentioned.

you wouldn't be able to draw a picture of your fav. character
no fanfics
no music tributes (something big al is doing)
no mods to another game.
no youtube videos like freeman's mind
no let's play videos.

it might fall under greyish area of the law but until someone actually gets sued for writting a furry fanfic about doomguy and sonic then not. it is not absolutely illegal to use someones ip.

Well, Youtube videos get yanked all the time, and if you're going to make a living doing music parodies, your lawyer will also make a living defending you.

So not absolutely illegal, especially in "fair use" or "fair dealing" jurisdictions, but by the same token not automatically legal.

And just because nobody has been sued over certain works in the past does not mean it is legal or that you won't be sued in the future. All it means is that the copyright holders do not know about your work, or know about it and don't think they can defeat you in court for enough money to make it worth their while.

Unless it's specifically allowed and specifically not prohibited, it's illegal, whether it results in legal action or not.

The borderline between a parody (also legal in "fair use" jurisdictions) and a ripoff is always ill-defined, and there are always copyright holders (and their lawyers) willing to argue both sides.

Just saying something is a parody doesn't qualify it for protection as a parody. If you get challenged on it, you have to prove it's a parody. If you make your living as a parodist, you're going to get to know your lawyer pretty well.

Is it specifically allowed for you and me to breath? if not then it is illegal?

the fair use category allows parodies to be made. so even if yugioh abriged was taken down by youtube they actually had no right to do it.
the fair use allows you to play your cd allowing everyone else to listen to it too at your home (since you bought the cd technically you should be the only person benefiting from that purchase)

like i said; it is greyish area. it is not ABSOLUTELY illegal. but it is not strictly legal. law is not black and white.

the bigger fangame the more risky it gets. if a fangame rivals a retail production or may cause loss of future sales then company can complain

Al had been doing it for 3 decades now? im sure if he had to know his lawyers pretty well after every single he released he would quit a long time ago.

Irrelevant. We're talking about derivative use of copyrighted work.

As for parodies, because you have to prove it is a parody if challenged on it, yes, either you or your label will have a lawyer who regularly works to get copyright holders off your back. Not on every single release, but probably several times a year. You can bet his label has an intellectual property department that has a lot to say about what gets released, too.