Fallout mods, total conversions, games: IP and copyright

[mvBarracuda]

That's something that is bothering me since some days because there was a discussion on another board about a certain Fallout modding project, let's call it "Fallout: X". The people there were interested to contribute to the project but they didn't want that their work is wasted time if anybody threatens to sue the project and forces us to close it down this way.

I guess the whole intellectual property and copyright discussion can become quite tricky because there is no common way how these things are handled; some companies seem to support fan projects quite well while others (e.g. Nintendo) are totally restrictive. Just two examples:

1. The "TA Spring" project:
TA Spring is an open source version of the "Total Annihilation" engine. It's comparable to FIFE for Fallout because they didn't work with the original sources but created the engine from scratch. On their download page they offer TA mods that contain files from the original TA CD. The company behind TA knows about this fan project and supports it.
http://taspring.clan-sy.com/

2. The "German language Civ3" mod:
Back in the days when Civ3 was released, it was just available in English. Infogrames (now "Atari") said that it wouldn't take too long till a German release would be available. But as time passed by and there was no sign of a translated version, the fans started to think about a fanmade translation project. So they founded the Civ3 German translation mod. They translated small parts and offered this partially translated versions for download. The popularity grew even as there was no fully translated version yet. They had contacted Infogrames before they started with their project but they got no reply. So they thought this was the classic "We don't really care what you do, just continue, nuff said"-reply. Unfortunately Infogrames threatened to sue them as their popularity grew and they had to close down the project.

So as you can see: it often depends on the companies that own the copyright / IP. So now here are my questions for the Fallout community:

1. If you're working on a project that is:
a) inspired by Fallout (setting, SPECIAL system, pip-boy, vault-boy, etc.)
b) features content from Fallout (but doesn't come with the download package, it would access the files directly from the original CDs)
c) comes bundled with content from the Fallout CDs or comes bundled with derived work (e.g. gfx or sound files from Fallout, converted to modern formats. frm >> png, acm >> ogm)

Who would you need to contact? Interplay, Bethesda, Feargus Urquhart (who owns the copyright for the FO gfx AFAIR), nobody? And in which case? I guess if you're working on a Fallout mod you've got no problem because there are bunch of mods and none of them got sued by Interplay. But what's with Fallout-like games?

E.g. what if one of the big modding teams like FMF would change from Fallout to FIFE? They wouldn't offer Fallout content for download but they would share the setting, use the SPECIAL system, etc. Is this an IP violation? (I guess it's no copyright violation if you don't bundle it with Fallout content). What's the difference between a Fallout mod on the Fallout engine and a Fallout mod on the FIFE engine? Is this comparable to SCUMMVM because it emulates the old LucasGames engines without coming with original copyrighted content? And what if somebody would create games with SCUMMVM that accesses original content e.g. from Maniac Mansion but without coming with this content for download?

And one additional note about Fallout-like projects: I guess FIFE-based mods are comparable to projects like the Fallout-like mod for Hearts of Iron 2.

(for more information about this project, see here: http://www.nma-fallout.com/forum/viewtopic.php?t=18385)

I've seen that they use gfx from the original Fallout games for their art. I know that they modified the gfx but it still looks like they converted original Fallout art and modified it afterwards. So would this be an copyright / IP violation? Isn't every project that uses the Fallout setting an IP violation?

I hope you can help me to answer these questions that are bothering me

 

[Sander]

There's a clear difference between the two cases you offer and most fan-made projects: the offering of game content. If you in any way, shape or form offer game content, there's a chance that you'll get sued, although I doubt Interplay has the manpower or money for it right now. You'd need specific consent from the holder of the IP to be completely legal, in this case that would be Interplay. Whether or not the company will take action depends entirely on the company.

Now, if you build an engine that emulates the original engine from scratch you are not violating any IPs so that's completely safe. Unless some parts of the engine are patented. Luckily, software patents are only valid in the USA so you could still release your software outside of the USA, but this is highly unlikely anyway.
So, no, creating or using an engine that can run certain copyrighted games is not in any way a violation of copyright or anything else.

Using the setting of a game is a lot trickier, though. In general, creating a work derived from another work is violation of intellectual property. However, there are two exceptions to this: Fair Use and Parody. If you create a parody of the original work, using the setting and other elements of the original IP is allowed.
Fair Use is where it gets a lot less clear. Fair Use is an exception whereby you can use portions of an original work if they are not used abundantly and serve a clear purpose. Generally speaking, this means screenshots in a gaming magazine, excerpts in a dissertation or review and such. When speaking about mods and games, however, the most common viewpoint is that as long as you don't charge money for what you've created using original IP, you're safe. You can still be asked to cease and desist, but this is extremely unlikely to happen and if it does happen, it is still not entirely certain whether you can be forced to cease and desist.

PS: Copyright and Intellectual Property are actually the same.

 

[mvBarracuda]

You'd need specific consent from the holder of the IP to be completely legal, in this case that would be Interplay. Whether or not the company will take action depends entirely on the company.

Hmm but didn't buy Feargus Urquhart the Fallout gfx? Wouldn't he be the person in charge to contact in this case?

And does Interplay still own the IP for the Fallout setting or would we need to ask Bethesda if we want to create a Fallout-inspired game?

 

[Brother None]

Hmm but didn't buy Feargus Urquhart the Fallout gfx? Wouldn't he be the person in charge to contact in this case?

That is irrelevant most of the time, *unless* you drop out of fair use by attempting to make money by using the original Fallout graphics, for whichever reason. i.e. if you make a T-shirt with Marcus' talking head on it and sell it, Feargie can sue.

Because, to annotate Sander's remarks, fair use is actually a pretty broad law (and parody actually falls *under* Fair Use, Sander), but never applies to any situation in which money is made *directly* from intellectual property (note; directly. NMA is still legal because the ad revenue and paypal donate function do not create revenue from the intellectual property)

And does Interplay still own the IP for the Fallout setting or would we need to ask Bethesda if we want to create a Fallout-inspired game?

Interplay owns the Fallout IP.