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.