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On Friday, February 8, 2013, one of the most popular and most polished fangames in the brony community, MLP: Fighting is Magic, was served a cease and desist order from Hasbro, the makers of the My Little Pony franchise. It caused a massive ripple effect across both the brony community and the fighting game community. Mane6, the developers of Fighting is Magic, took steps to make sure that they would be in good standing with Hasbro when they started developing the game in 2011, namely by not profiting off the game and not accepting any donations from fans. Any donations that were brought up from tournaments went straight to charity. They stated this on their FAQ page when it was still up. While it was believed that Hasbro had no problem with the game (FAQ gone to confirm this), last Friday’s event proved otherwise.
So once again the topic of fangames has hit the forefront of the gaming periphery. Fangames are a form of expression, a way of showing adoration for a show/videogame/movie you like. In other words, it is another form of fanart. Unlike the typical form fanart – the most common being drawings – fangames take more time to make and are generally much lower in quantity. But, like some fanart, many fangames tend to be rather amateurish and crude, either making something poorly from scratch or poorly reusing assets from other games. But there are some out there that excel beyond the norm, creating new content or using currently available assets and making something equal to or beyond the quality of the original. It’s these games though that tend to get the dreaded cease & desist order, with companies fearing it being a little too close to their product.
The one advantage many works of fanart have is the sheer volume of it on the internet. What many forget is that fanart, fanfiction, fanmovies, fancrafts, etc. is a form of copyright violation and is potentially illegal since it uses the image of copyrighted material. But since there’s so much of it on the internet and many aren’t making money off of it, it’s useless to pursue these cases since there’s just so many of them; You can’t stop rain from hitting the floor by just holding your hand out, so why bother. It also helps that fan creations are also protected by the First Amendment right to freedom of expression, much to the derision of large corporations. That explains why communities like deviantART and Newgrounds freaked out when SOPA reared its ugly head last year since it would absolutely stifle the fanart and flash community. But all is well, and my old dA gallery can still remain up.
But what to do about fangames. Do we doom ourselves and stifle our own creativity, purposefully creating shoddy games that look different from the source material to avoid the C&D? Do we simply call it quits and lay off thinking of making fangames? Do we just admit that we’re all copyright violators and just give up creating anything (as this one wants to make you believe)? No. we are fans after all, and we have a right to make what we so please. We love things and this is one way to show our love!
So what should fangame devs do to get their game online and out to the players?
1. No profiting off of your work. This is probably the most simple and commonsense to follow. Most corporations don’t like this as it is money they could be losing. Very understandable. Just imagine if you, say, drew something for fun, and then someone took it from you and made money off it. Not cool. [Edit] This should also apply to any tournaments you might hold for your game if it has a competitive multiplayer element (like Fighting is Magic). Devs and players should not get any money from it. Keep your game free. The only time this might be okay is if you get a license from the original content creator.
2. Avoid accepting donations. The can be misconstrued as making money or profiting off of copyrighted material. While the money could be helpful in probably getting the resources needed, you’re better off self-funding the game.
3. Work in secret and keep hype to a minimum. This is if you choose to show your work early. One of the undoings of many fangames like Crimson Echoes and the most recent Fighting Is Magic is that these games were very popular pre-release and shown very early in development. The most common times games like this get a C&D is right before a game is ready for release. This is when hype is at its peak and it gets the attention of the original content holders. This brings me to my next point (if you did this first).
4. Announce and show your work extremely close to, or on, the day of release. This is if you choose to work in secret. Time and again it sucks when you’re told that you can’t release your game right before you do it. All your hard work goes down the drain. Fighting Is Magic was worked on since 2011. Crimson Echoes was worked on for four years. And Streets of Rage Remake was worked on for a whopping eight years! SoRR however was already released in its full state for a short time before Sega went down on developer Bombergames, so their C&D was useless as the game was complete and out in the wild. He’s the one wild card in all this and was quite lucky. While you may not have cheerleaders on the sidelines cheering you on to completion (since most fangames just shut down due to lack of motivation), the risks far outweigh the rewards.
5. It’s safer to create assets from scratch than directly taking them from the source material. This applies to mostly 2D fangames. For example, instead of making a new Mario sprite from scratch, you reuse one from Super Mario World or Mario & Luigi, or importing a model of Samus from SSBB for a Metroid Prime-style remake using Source. While I’m not saying that you shouldn’t use them, just know that it is indeed skirting copyright infringement and might get you in trouble. Still, if you’re willing to risk it, I’m not stopping you.
6. Know your company. In other words, if you’re making a game where the company who originally owns the content doesn’t interact with the fans much or are known to send C&Ds, don’t expect them to change their mind. For example, if you’re making a fangame based on, say, Threads of Fate (hasn’t happened yet), you’re dealing with Square-Enix. They’ve shut down two games based on Chrono Trigger, Chrono Resurrection and Crimson Echoes. So it’s safe to say that if you’re making a game based on Final Fantasy, Parasite Eve, Musashi, Dragon Quest, Threads of Fate, World of Mana, SaGa, etc, keep it under wraps until completion.
If you’re making a fangame to Half-Life, you have largely nothing to worry about since Valve is very open to fan projects. In quite a few cases, good fan project might actually get you hired by Valve. Case in point, Counter-Strike started life as a Half-Life mod. It went on to be a successful franchise with Valve. Team Fortress began life as a Quake mod and then switched over to being a Half-Life mod. Valve liked what they saw and soon got the guys on board. And before you knew it, Team Fortress 2 was made. Heck, Half-Life 1 got a fan-remake in Black Mesa Source and got 100% support from Valve. In this case you can ignore tips 3 and 4.
With Nintendo, it depends. Sometimes they’re cool, other times they’re more protective. For a bit of perspective, let’s look at Super Mario Bros. Crossover by Exploding Rabbit. The game itself is a flash game that emulates the controls and physics the original Super Mario Bros. and the characters in the game. The game was unknown until it released, and it burst in popularity. Exploding Rabbit contacted Nintendo about making a ROM for it since so many people asked for it, and Nintendo said that his game was okay in its current state (a flash game) and to not make a ROM. He took a risk by adding a donate button (and ignoring step 2), but I still recommend not to if you want to stay alive. On the other end, a supposedly well-made fan movie of The Legend of Zelda was making the rounds, and Nintendo sent a C&D to the filmmakers. They were nice enough though to let them keep the movie online through the holiday season (which two weeks remained then), but afterwards they had to take it down. Also, this exists. And this too.
SEGA is an odd one and somewhat unpredictable. There’s a plethora of Sonic fangames out there, and I have yet to hear any of them get a C&D. And then there’s the earlier mentioned Streets of Rage Remake from Bombergames, which got a (useless) C&D from Sega after the game was released.
As much as we like hate Capcom nowadays, they still have good relations with fans in terms of fanart, music, and games. Most recently, Capcom even granted a licensed to the creator of Street Fighter X Mega Man and aided in the game’s completion. On top of this, they followed step 1 and kept the game free (since a large company making money off a fan’s work is kinda jacked up). Some might think if sucks that the dev won’t make money off his game, but I have a feeling he’ll have a good future in his hands.
The one major exception is Disney. In this case, you’re better off doing something else other than fangames based on Disney properties. They tend to be antsy already with other forms of fan media, and fangames might be no different. So play it safe and just do something else.
To get an idea of how more companies react to fangames, you can read up this article on GamesRadar. It’s old, but useful. You can also check out the Fanwork Ban page on TVtropes to see how non-videogame companies react. There’s also an interesting mention of SLAPP on there that you might find interesting. If you’re still not sure, you can ask the company if it’s okay and on what terms can you make it. If you still get a Cease and Desist, pre- or post-release, it’s best you comply to their terms and talk it over with the company that sent it. Remember, not all hope is lost. Sometimes there’s a silver lining to this dark cloud.
It sucks that fan developers apparently seem to be the most “dangerous” to corporations and are singled out amongst all of the fancreators on the internet. And it sucks that fandevs have to become the most vigilant of their work when compared to fanartists, fanfiction writers, fan musicians, and fancrafters. While companies have every right to protect their copyright and trademark, so too do you have a right to create what you wish as a fan under fair use and 1st amendment laws. Not everyone is like Valve or Capcom, but this is the state of the fangame community. If you want to get your game out and known to the public, play smart, don’t be dumb, and finish your game.