One of us is getting sued for his fan-made game: Smurf Rescue

[FastRobPlus]

I waned to get your guys' thoughts on this:

 

A month or two ago a retro Amiga user made a game called Smurf Rescue with a quick and easy game creation tool.

It's a PD-quality game side scrolling jump game. Looks okay, but basically unplayable.

 

He's apparently gotten a large stack of Cease and Deist papers from the Smurf IP owner's patent trolls demanding that he pay €2000 for use of their characters.

 

Here's one of the original threads (from English Amiga Board): http://eab.abime.net/showthread.php?t=76750

 

I'm wondering if retro gamers publicize this story if we can perhaps shame them into a bit of mercy.

[TPA5]

Considering how much people blamed the guy who made Sharknado for the 2600 when lawyers came-a-knocking (metaphorically speaking) to his door for IP infringement, I doubt much support will be found on this board. I'm guessing (but could be wrong) that most folks will want to blame the author of the game, not the lawyers.

[FastRobPlus]

That's unfortunate. I hadn't heard of the Sharknado game. There are two things that might make this a more sympathetic story:

 

It was released as a "look I can make a game!" type release - not even a homebrew to be sold at cost to a few enthusiasts.

 

He did remove the game immediately. The patent trolls are saying "not good enough, you owe us for the damage you already did by allowing the game to exist."

[CatPix]

IP owners are shitheads.

No one can say for sure, but I think Peyo would have been forgivefull, being an artist. Or not. But heh. I'm glad that most famous cartoon characters here "stopped acting" when they are so tied with the personality of their creator - Franquin, Hergé - whe nyou see the shit made from other ones, like Lucky Luke and those awful stories written by Laurent Gerra (gosh... kill me.) or the crap Uderzo is doign with Asterix since the death of Goscinny...

[Emehr]

Considering how much people blamed the guy who made Sharknado for the 2600 when lawyers came-a-knocking

So it wasn't his fault that he made a product out of IP he didn't own or license? Then who is to blame?

 

Personally, I think both cases suck and I think the patent trolls need to prove there was monetary damage before they can collect. On the other hand, it'd be much easier to just not use trademarked characters and names in the first place unless you have permission. It wouldn't be that difficult to change things to "Shartnado" or "Slurfs" and modify the images to something less infringing.

[mickcris]

same thing happened to Collectorvision's release for the intellivision. They changed it to a Syndey Hunter game instead of smurfs.

[FastRobPlus]

So it wasn't his fault that he made a product out of IP he didn't own or license? Then who is to blame?

 

Personally, I think both cases suck and I think the patent trolls need to prove there was monetary damage before they can collect. On the other hand, it'd be much easier to just not use trademarked characters and names in the first place unless you have permission. It wouldn't be that difficult to change things to "Shartnado" or "Slurfs" and modify the images to something less infringing.

 

I'm not convinced anyone is to "blame" in this particular case. It looks like he just likes Smurfs and used that universe to make a game as a training exercise. It only just barely meets the definition of a "product" if you go by the dictionary definition of "something that others will derive use from"

 

But if we are looking to assign blame percentages, I'd assign most of the blame to the copyright holders. I know little about Smurfs, but I do know they have some kind of song that goes "la-la-la-la-something-something" and I seem to remember the characters sing it all the time and encourage others to sing along.

 

This means if a person were to hum the song while walking outdoors, it ought to be fair to sue the person humming for damages associated with the public performance (the product).

I get how that works, but I think they are culpable for leading the impressionable person into humming in the first place without sufficient warnings prior that reproducing the sound could be infringement.

[Nebulon]

That's unfortunate. I hadn't heard of the Sharknado game. There are two things that might make this a more sympathetic story:

 

It was released as a "look I can make a game!" type release - not even a homebrew to be sold at cost to a few enthusiasts.

 

He did remove the game immediately. The patent trolls are saying "not good enough, you owe us for the damage you already did by allowing the game to exist."

If he removed it immediately, then the patent trolls should have backed off right then and there. After all, he did comply.

 

And yes, from the description, it's unclear as to whether or not this even constitutes a 'product'. And if it wasn't for sale, then I'm not sure how strong a case the patent trolls have.

 

The nasty part is that the trolls likely have enough money that they could drag it through court and it wouldn't impact them that much. Then-again, if 2000 Euros are that important to them, then maybe they are on a budget.

 

This sort of thing is bound to happen even more frequently in the future. It's pretty tough to keep content off of the net these days. A person could do something just for fun (like sitting around making doodles of some cartoon character in a sketch book). Then it goes onto the web and something like this could (possibly?) happen.

 

Anyway -- in this particular case -- it sounds like the patent trolls should be ashamed of themselves. Furthermore, it sounds like they're wasting their own company's time.

 

It could be worth his while for him to verify that these guys are even legit.

[Emehr]

Companies need to fire their trademark lawyers and hire scouts that seek out this type of stuff, offer a compromise, and make everyone happy. If I had some IP that was making money elsewhere and a small-time hobbyist project popped up on my radar, I would think the best thing to do is to contact the person making the product, make sure it's good for my brand, have them give me a percentage, and be on my way. That way everybody wins. Especially if it's a product I wouldn't make myself. Somebody already did it for me and it is now reaching more people. Suing people frivolously is bad for a brand. Reaching more people is good for a brand. I don't understand why they don't see that.

[Keatah]

Shit.. Man.. You know, sometimes some of these trollers go around looking for things like this. They have a whole sub-staff of low-cost employees that conducts searches and sniffs out "non-compliance". Small insignificant stuff. Then they approach the big companies whose property was "infringed" upon with an agessive marketing pitch - promising big returns and compensation, of which the lawyers get a piece. The company buys it and the lawyers start sending you stuff. A very gentle predator.

 

And, then, of course, the lawyers are hired out by the company (IP holder) suffering the losses. 6 of this, half-a-dozen of the other.

 

Personally when I see companies doing crap like this I just nod and go elsewhere.

[FastRobPlus]

I think keeping your IP trolls on a short leash is a particularly good idea when your IP brand is all about goodness, or togetherness, or lightheartedness as I think the Smurfs are supposed to be.

 

I and others have been cross-posting this to a bunch of places. If it gets legs, it won't do much damage, but it might do enough that when some retro gamers see an actual Smurf product they immediately think "Hmm, I don't remember why, but I think there's something wrong with the Smurf company. I'd better avoid this"

[carlsson]

Sad story, but I saw this Amiga game posted on a different site and the first thing that came to my mind is "he is going to have to pay for this, one way or another". That is not to say I have tipped anyone off, just that I knew about recent misfortunes, in particular with the Smurf brand, so public domain or not, it clearly was not safe for C&D.

[fiddlepaddle]

It might be interesting to know that the average lawyer makes about $14,228/year chasing down low rent clients, hoping to find a jackpot in the court system. Many have no clue how the free market really works and think anybody "in business" is loaded. Some work on contract for IP firms, too. They also often send C&D orders and similar threatening letters to learn what kind of response they will get before deciding exactly how to attempt to extort.

[OldSchoolRetroGamer]

That's unfortunate. I hadn't heard of the Sharknado game. There are two things that might make this a more sympathetic story:

 

It was released as a "look I can make a game!" type release - not even a homebrew to be sold at cost to a few enthusiasts.

 

He did remove the game immediately. The patent trolls are saying "not good enough, you owe us for the damage you already did by allowing the game to exist."

 

Pffft! I think more "damage" was done with the last couple "THE SMURFS" movies Of course maybe that is why they are being stingy.

[OldSchoolRetroGamer]

While I certainly agree they are being complete asses, thinking they should be more forgiving because their brand reflects togetherness or "goodness" is just unrealistic, in fact it is such companies that are some of the worse in these matters, it is more because of that they are even more stringent about keeping a tight control over their brand.

 

It certainly sucks but in today's litigation and copyright protection obsessed world it is better to be more cautious. While it certainly does not help after the fact I would hope anyone considering using an IP they do not outright have permission to use would just not even take such risks, better to do an obvious parody, like for example maybe the game could have been the same art style but instead call them "The SMERFS" and make them all purple or red with black hats, enough so it would fly under the radar but the characters they are parodying are well known enough people are still going to "get" who they really are, I would actually find it more amusing because it is a bizarre parody and it keeps the person safe. Now again, it was immediately discontinued and no profit was made of it so I hope replying with all this will be enough so they back off but I just thought I would mention how such things might be avoided in the first place. Sure it might not immediately get as much attention as using the obvious recognized brand name but that might help n the end.

[goldenegg]

There's absolutely no trolling here. Any patent or trademark owner must protect their IP or risk losing exclusive rights to them. They're doing what they're supposed to do. It can be argued that they're being harsh in this situation, but they're in their right to make these demands. People need to realize that it simply is not okay to use someone else's IP without permission. Saying things like "I only did it because I love <insert IP name here>" or "It shouldn't matter since I'm not monitizing it" doesn't justify the decision.

Edited January 24, 2015 by goldenegg

[+Random Terrain]

One of us is getting sued . . .

I bet you knew this was coming:

 

youtube.com/watch?v=9C4uTEEOJlM

https://www.youtube.com/watch?v=9C4uTEEOJlM

[Tron Unit]

Cease & Desist letters are intimidation and scare tactics copyright holders love to dole out without having to to go through all of the legal expenses of filing for lawsuits and paying costly attorney fees. Whether you choose to abide by them is entirely up to you but if they are seriously going to sue you they'd better be prepared to have the necessary financial backing to back up their legal threats first and most copyright holders will try to avoid fighting long, arduous legal battles whenever they can unless you are a big corporation like Disney then you pretty much better not ignore their legal threats because they will hunt you down and make you pay.

[SIO2]

The game designer should make the characters white and call the game Snow Rescue or some such.

 

Then we can all get a couple of pairs of those old 3D glasses and make a pair of glasses with two blue lenses so we can see the creatures as they would have been.

 

Or else pay the license and add the cost to the cart price. Doesn't sound profitable though.

Edited January 24, 2015 by SIO2

[Andromeda Stardust]

I bet you knew this was coming:

 

youtube.com/watch?v=9C4uTEEOJlM

https://www.youtube.com/watch?v=9C4uTEEOJlM

What is this clip from?

 

With regards to the OP, I guess Princess Rescue got off easy then...

Edited January 24, 2015 by stardust4ever

[AtariLeaf]

While I certainly agree they are being complete asses, thinking they should be more forgiving because their brand reflects togetherness or "goodness" is just unrealistic, in fact it is such companies that are some of the worse in these matters, it is more because of that they are even more stringent about keeping a tight control over their brand.

 

It certainly sucks but in today's litigation and copyright protection obsessed world it is better to be more cautious. While it certainly does not help after the fact I would hope anyone considering using an IP they do not outright have permission to use would just not even take such risks, better to do an obvious parody, like for example maybe the game could have been the same art style but instead call them "The SMERFS" and make them all purple or red with black hats, enough so it would fly under the radar but the characters they are parodying are well known enough people are still going to "get" who they really are, I would actually find it more amusing because it is a bizarre parody and it keeps the person safe. Now again, it was immediately discontinued and no profit was made of it so I hope replying with all this will be enough so they back off but I just thought I would mention how such things might be avoided in the first place. Sure it might not immediately get as much attention as using the obvious recognized brand name but that might help n the end.

 

I was going to mention something similar. I just seems like a big gamble to create a game using an established and copyrighted IP. While I can understand the reason behind making a game with a beloved childhood character like smurfs or mario, etc, it just seems like a programmer is asking for potential problems. Better to err on the side of caution and simply make unique characters to avoid the hassle.

[darthkur]

More corporate bullying and bullshit. Bottom feeding scum, the lot of them.

[tep392]

Anyone follow the links and look at the "cease and desist"?

 

http://www.hipooniosamigasite.org/files/uploads/1.png
http://www.hipooniosamigasite.org/files/uploads/2.png

 

This is a letter that any scam artist could send out. Why would they put their bank info in the letter and request direct payment? That guy should confirm the legitimacy of this letter before doing anything else.

[CatPix]

This means if a person were to hum the song while walking outdoors, it ought to be fair to sue the person humming for damages associated with the public performance (the product).

I get how that works, but I think they are culpable for leading the impressionable person into humming in the first place without sufficient warnings prior that reproducing the sound could be infringement.

In 2005, a French filmmaker made a movie here, in which a worker whistle about 7 seconds of the Internationale.

 

Amazingly, under French law, the Internationale music right won't expire until 2017 (copyrights on IP in France last until the author's death, and then last an added 70 years after. Add a 5 and 8 years compensation for wartimes and you gent something as stupid as this.) Why do I say it's amazing? hint, the music was composed in 1888, I mean come on!

 

And yes, they sued the filmmmaker for 7 seconds of whistling. They won and got 1000€ out of this. Really clever guys.

 

So yeah, you can be sued for whistling, and probably humming

 

There's absolutely no trolling here. Any patent or trademark owner must protect their IP or risk losing exclusive rights to them. They're doing what they're supposed to do. It can be argued that they're being harsh in this situation, but they're in their right to make these demands. People need to realize that it simply is not okay to use someone else's IP without permission. Saying things like "I only did it because I love <insert IP name here>" or "It shouldn't matter since I'm not monitizing it" doesn't justify the decision.

 

There is the legel thing to do... and the good thing to do.

 

We got the case here previously with Princess Rescue.

Nintendo would have been right to sue AA, Albert and Sprybug for copyright infrigments.

They simply made a C&D, and (unless I'm wrong?) only asked for stopping the sales of carts. They didn't asked the binaries to be pulled out of download or the music altered. They just asked for the physical carts to be pulled of.

Why is that more clever?

 

Someone at Nintendo of America probably saw that AtariAge was also a forum gathering players of different areas, age and passions. So they guessed that suing AA for copyright infrigtment would hurt them more than a limited run of a game clone of their already massively cloned plumber on a 37 years old system.

 

So they did both things : saving their IP rights, but also not losing (too much) respect from the gamers.

[RevEng]

He's taken down the infringing game. In a court of law, Studio Peyo would need to actually prove damage to the brand or lost revenue. VS a cost of 2000 euro, I'd actually rather have my day in court.

 

I've submitted the story to Slashdot. If anybody has a slashdot account, please vote the submission up, so it stands a better chance of making it to the main page where it could bring much needed publicity.