Alright Dopers, I’ve got a few hypothetical questions for you to answer. Here’s the hypothetical situation:
Say I create a work of fan fiction based off of this old video game from the 90’s that was reasonably popular in its time but has now largely been forgotten, and I just think it’s the best thing since sliced bread. Say that I want to get it published. Assume that this is some sort of literary masterpiece and I just HAVE to share it with the whole world, not just the cloistered nerds on some fan fiction website. The story I’ve written is good enough to stand on its own merits, and I decide to take action!
My first option of course is simply to take the manuscript to various publishers and see if they’d be interested in publishing the work. I’m assuming that most publishers probably do a quick search on the character names and other identifying vocabulary within the work, just to make sure it’s not a blatant derivative. There are plenty of references online to all the characters and names from this old video game which they’d easily be able to find. So I’m assuming most publishers would laugh it off and and tell me to pack my bags and write something original.
Dejected and depressed, in an act of desperation, I do a “Find and Replace” on all the characters, place names, and other identifying vocabulary in my fan fiction. Everything that could immediately link it to a copyrighted piece of work are altered. Of course, character and location descriptions would still match the originals and whatnot, so there’d still be a lot of evidence to anyone who knew the source material well enough that my work was derivative of another.
I head back to a few new publishers with my altered manuscript. The poor saps who work at publishers are not familiar with the video game that I ripped off, they love the book, and recommend it for publishing. It makes its way up the decision ladder and the head-honcho of one of the big publishing companies gives it the green light! Hurrah! My work of art is going to be published! And better yet, they’ve submitted the work to critics and are hoping to get it on the New York Times Best Seller’s list!
Let’s say some bitter computer programmer who worked on this game in the 90’s somehow chances upon finding my book and as he’s reading it starts to realize that it was a blatant rip-off of the old game he helped program. He marches into his old company’s headquarters, slams the book down on their desk and tells them that there’s a book being published and sold that took the ideas and characters from that video game they published a long time ago. The book just changed their names in hopes of passing it off as its own. Furthermore, some of the dialogue from the actual game is right there in the book! Lifted word for word from conversations the characters had in the game.
So here are my questions
Do you think it would be very likely that if such a farce were attempted it would ever get caught? Assume that it actually is printed and distributed and the publishing company loved it so much that they decide to really advertise it and push it.
If the original video game developer and publisher did find out about it, what do you think the legal repercussions would be for me, the author?
If I took my unaltered literary masterpiece to the video game developer ahead of time and asked permission to get it published, what do you think they would say?
I assure that this is just an exercise in curiosity! You don’t have to worry about ol’ drewtwo99 sadly wasting away his days creating a work of fan fiction that won’t ever be able to see the light of day sniff
I can’t give a very in-depth analysis right now, but I can say that this kind of thing has happened before. Authors have written fiction for a licensed property (like, say, Star Trek), couldn’t get it published under that license, then changed all the significant words around and published it as an original work.
I think whoever holds the rights to that old video game would have a devil of a time proving that your story, with original plot and originally named characters and setting, infringes on their copyright.
I can say for a fact that this will be the MOST likely to happen, and will happen the fastest. I love old video games, still play and own a lot of them. Many gamers are also readers so people will discover that pretty quick. If there’s a similarity, people will discover it
Specifically, *The Silver Call *duology by Dennis McKiernan. McKiernan, while laid up by an accident, wrote a sequel to The Lord of the Rings and then tried to get it published. The publisher liked it enough to try and fail to get a license, and then asked McKiernan to re-write it to change all the names to non-infringing. This required him to write a prequel trilogy to give the backstory. The whole 5 books were published.
In your scenario, the game developer would have very little chance of winning a suit, even if he found the original manuscript with the names. The characters have different names from the copyrighted ones, and the narrative has nothing to do with the original. The dialog, though could get you in trouble – you’ll have to rewrite it.
You would have to ask the developer before going to a publisher; they aren’t going to touch a property if there’s a question about rights.
It may take more retooling than a simple find & replace, but this sort of thing happening isn’t incredibly uncommon, Warcraft was originally going to be the first Warhammer RTS until they couldn’t get the license, for instance.
If you’re actually lifting dialog from the original game, they WILL come after you. That’s a clear copyright violation.
And if you’re borrowing that freely from the source material, someone will probably figure it out. People who were fans of the old game are also likely to be fans of books in the same genre. All it takes is for one person to notice and post something to a message board and the ripples will start to spread until they make it back to the publisher.
You probably wouldn’t be able to get the consent of the developer because the developer probably wouldn’t own the intellectual property. The copyright would probably be held by the publisher. And the publisher would be loathe to allow any derivative works to be created on the off chance they might want to eventually revive the franchise.
Exactly. I once had a developer pitch me a game that was clearly a remake of an earlier title. The ownership of the original game was ambiguous because the original developer had gone out of business. My producer and I refused to even consider picking up the new game. Regardless of how much WE liked the game, we knew there was no way that Sony legal would let us move forward with anything containing a potential time bomb like that.
Thanks for the help guys! If my hypothetical situation one day becomes a reality I will take your suggestions into account and make substantive enough changes that I wouldn’t have to worry about copyright infringement.
And of course I wouldn’t keep any of the old dialogue either.
Interesting to learn about people stealing another fan fic and passing it off as their own novel! That’s awful, and hilarious at the same time.
Fanfic doesn’t usually borrow dialog or plot straight from the source material. It usually involves a new plot, just using either source or original characters in the source or original setting. Catchphrases would be the biggest landmine where dialog is concerned.
No, though Lucas had the idea of making a Flash Gordon movie and was denied the rights. He had no plot or character details worked out at that point, however, so it’s not like he just tweaked a Flash Gordon script and turned it into Star Wars.
Do not ever try to trick a publisher. It will not work out well for you, especially if your book is popular. Go ahead and write the story, and pitch it, letting them know up front what the deal is. If the publisher likes the story enough, they will advise on either on how to change it in order to satisfy their copyright concerns, or they’ll figure out if it is worth it to them to go out and obtain the licenses to use the characters.
Remember one thing, copyright protection is given to expression, not ideas. It is possible to sufficiently change a work in order to make it different enough to stand on its own. It is also possible to go the other way around, to write an independent work and then re-write it to fit into an existing franchise.
I’d say your best option is to offer it to the company that made the original video game. It’s quite likely that they already are publishing novels based on various of their games, and they might accept yours.
IANAL but my understanding is that what will get you in trouble is copying the parts of some other work that were unique to that work.
For example, let’s say you write a book about a starship crew and the crew members are named Kirk and Spock and McCoy. You’re going to get sued because the people who own the rights to Star Trek will easily be able to show that those are the names of their characters.
But suppose you change the names to Cook and Zonk and Magill. Now the Star Trek people have to show you copied their characters. If Zonk is an emotionless science officer with pointed ears, they might be able to make a case. But if Zonk is an alien, they won’t because they didn’t invent the idea of aliens so aliens weren’t unique to Star Trek.
Same thing with plots. If your story is about how the ship is overrun with a bunch of small fast breeding furry vermin, they can make the argument that you stole their story about tribbles. But if it’s a general story about the crew of a starship, the makers of Star Trek can’t claim they invented that idea.
However, his first drafts did borrow very heavily from another work:Akira Kurasawa’s 1958 film The Hidden Fortress. Parts of the story treatments were copies almost verbatim, with just a few words changed. He actually considered buying the American rights to the story. However, by the time he was finished writing, it was too different to matter.
He used other Kurasawa samurai films as the basis for some of the sequels, but again changed them significantly by the final version.
You can find this in The Secret History of Star Wars, where you can see the comparisons yourself. It’s mentioned in the first 100 pages, so you can read about this in the free preview. (And, if you snoop around enough, you may be able to find the version that was offered for free before he got the work published as a real book.)
All true. Though I see Kurosawa and Flash Gordon as being more “inspiration” than anything else as Star Wars evolved well beyond those initial templates. People have the mistaken impression that it was a straight rewrite of The Hidden Fortress, but, as you say, that’s really only in the treatment. The Phantom Menace has some of that same DNA, FWIW.