Would it be illegal to remake and sell an old game?

[Zanzoken]

Let's use X-Com and Xenonauts as a thought experiment.

Obviously the Xeno devs can't use the X-Com name, or any of the other proper nouns that belong to the original IP such as chrysalids, mutons, elerium, and similar. They would also probably get in trouble if any creatures, weapons, or other art assets used the same visual design. Music is another one that could cause an issue.

But to what extent are things like game mechanics protected? Level design? User interface? Seems like it would be difficult to prosecute copyright over those aspects, even if it was a blatant rip-off.

So imagine you find an old game from the 80s that is mostly forgotten, but still really fun, and might do really well if someone were to give it a proper remake. Do you think the "spiritual successor" could be sold without issue, even if it's functionally very similar to the older title?

 

[Viata]

It depends on a single thing: Do you live in China? If yes, then you can do whatever the fuck you want as long as the game is not Chinese.

 

[mk0]

You mean like a one-to-one ROM hack with different art assets switched out for it? That's probably reaching too far.

If you're capable of making a carbon copy of something from scratch, then you might as well just make an original game at that point.

So imagine you find an old game from the 80s that is mostly forgotten, but still really fun, and might do really well if someone were to give it a proper remake. Do you think the "spiritual successor" could be sold without issue, even if it's functionally very similar to the older title?

That's basically the indie gaming market in a nutshell.

 

[rusty_shackleford]

In USA:

But to what extent are things like game mechanics protected?

no

Level design?

no

User interface?

maybe

game mechanics are abstract and therefore not patentable
essentially only board games have ever actually made it to court to give you an idea of how rare it is a company will do anything beyond C&Ding you for a blatant ripoff

 

[Zanzoken]

I primarily want to do this as a way to start learning game development. I am doing one of those courses now where they teach you how to make a Space Invaders clone, a Mario clone, etc. Classic games that are simple and easy to learn the basics on, but nothing you could sell.

I figured once I finished those I could step up to the game I have in mind, which is still just a DOS game from the 80s but is more like a cRPG. And I think a remake of that one might actually be something that people would want to play.

 

[Gregz]

Let's use X-Com and Xenonauts as a thought experiment.

OpenXcom | Open-source clone of the original X-Com

Q: Is using the original X-COM resources legal?
A: It’s kind of a grey area. We’ve contacted the copyright holders just to be sure but they never replied back, so we just play it safe like every other clone. The code is completely new and none of the copyrighted files are actually included with the project, players still need their own copy of X-COM to play, so it should be fine.

 

[rusty_shackleford]

Let's use X-Com and Xenonauts as a thought experiment.

OpenXcom | Open-source clone of the original X-Com

xenonauts is different because it's proprietary and for-profit
openxcom is purely free software and would be much harder to do anything about

 

[Morpheus Kitami]

Like others have said, if its just game mechanics/interface, you're completely fine. You can basically just remake Tetris, for example, so long as you don't use any copyrighted assets or trademarks. Since you mentioned this is some kind of ye olde CRPG, probably the exact mechanics are a no go. You should probably futz around with any attributes and skills so they're not the same. Especially if this game has very noticeable elements, like say, Space 1889.
As for level design and story, well, as long as you're only going for the basic outline of things, rather than the exact idea...its hard to copyright a giant forest and a quest for four crystals given to you by the creator's avatar. Depends on whether or not the game was made by a big company that still exists in some capacity.
None of this really applies to a freeware remake unless its Nintendo or some other sue-happy company. Its still illegal, but nobody cares.

 

[Krice]

Too many games are remakes... The reason is obvious, it's much easier to copy than create original design. The scene or industry is full of people who want money, but have no creativity so they have to clone games.

 

[JarlFrank]

There are about three dozen fucking clones of snake, arkanoid, space invaders and other 80s arcade classics made in the fucking 80s when those games were still hot shit, and such clones continue to be made.

It was never an issue.

One well-known incident was when Nintendo sued German developers for The Great Giana Sisters which Ninteno claimed was plagiarism of Super Mario Brothers. They had to prove the plagiarism by showing that the level design was often copied verbatim, and won the lawsuit.

But if you just copy mechanics, you're fine. Don't copy the actual level design. Make your own levels or at least make enough changes to the original so it won't feel like a straight-up ripoff.

Nobody cares if you clone an old game's mechanics, feel, and interface. Ultima clones were commonplace throughout the 80s and 90s. There's at least one Gold Box clone that I know of. Diablo clones were one of the biggest genres back in the 00s. The entire FPS genre was referred to as "Doom clones" in the early 90s.

90% of games that exist wouldn't exist if cloning game mechanics and interface elements were illegal.

 

[Ysaye]

So:

• Muscle&Mystique 1: Mystery of the Holy Chamber
• Muscle&Mystique 2: Portals to another Realm
• Muscle&Mystique 3: The Islands of Fear
• Muscle&Mystique 4 & 5: The World of Zean
• Muscle&Mystique 6: Order from the Skies
• Muscle&Mystique 7: For Flesh and Respect
• Muscle&Magic 8: The Time of the Anihilator
• Muscle&Magic 9

is fine? Well someone get to it then!

 

[Falksi]

Same as music, same as films, there's no issue in taking an idea & evolving it. The shitter is when it's just a straight forward rip off with no new ideas.

E.g.

• Alex Kidd = Super Mario Rip Off. Different vibe, different pacing, different combat, added extras etc. Enough difference to be worth it.
• Oasis, Cigarettes & Alcohol = T-Rex, Get it On rip off. Different sentiment, different phrasing, different chord progressions. Enough difference to be worth it.
• Flash Gordon = Star Wars rip off. Totally different vibe, different setting, different story progression. Enough difference to be worth it.

It's a tricky balance to find, but overall I'd say if it feels fresh, then that's fair enough.

Xenonaughts is a blatant rip-off IMO, and a poor one at that.

 

[Ol' Willy]

Oasis, Cigarettes & Alcohol = T-Rex, Get it On rip off.

Noel ripped off the main riff of Get it On almost 1 to 1, and won the case just because T-Rex himself lifted up this riff from Chuck Berry, and if people start to sue everyone who rips off Chuck Berry there would be no rock music left.

 

[RobotSquirrel]

Its not a clone if you make it your own. You cannot simply just recreate some game wholesale you have to add to it or interpret it in such a way that it takes on its own identity.
Otherwise you fall into the habit of "Why would I play your game when X game exists". Your game has to have its own identity.

 

[ProphetSword]

• Flash Gordon = Star Wars rip off. Totally different vibe, different setting, different story progression. Enough difference to be worth it.

I think you got that backwards, dude.

http://www.moongadget.com/origins/flash.html

 

[agentorange]

Let's use X-Com and Xenonauts as a thought experiment.

Obviously the Xeno devs can't use the X-Com name, or any of the other proper nouns that belong to the original IP such as chrysalids, mutons, elerium, and similar. They would also probably get in trouble if any creatures, weapons, or other art assets used the same visual design. Music is another one that could cause an issue.

But to what extent are things like game mechanics protected? Level design? User interface? Seems like it would be difficult to prosecute copyright over those aspects, even if it was a blatant rip-off.

So imagine you find an old game from the 80s that is mostly forgotten, but still really fun, and might do really well if someone were to give it a proper remake. Do you think the "spiritual successor" could be sold without issue, even if it's functionally very similar to the older title?

I mean there are entire genres that are labeled as "Diablo-likes" and "Myst-likes" so I think that answers your question in part. And hell even as far as X-Com goes there are tons of recent games that wholesale copied the mechanics of the X-Com remake.

 

[ciox]

Let's use X-Com and Xenonauts as a thought experiment.

Obviously the Xeno devs can't use the X-Com name, or any of the other proper nouns that belong to the original IP such as chrysalids, mutons, elerium, and similar. They would also probably get in trouble if any creatures, weapons, or other art assets used the same visual design. Music is another one that could cause an issue.

But to what extent are things like game mechanics protected? Level design? User interface? Seems like it would be difficult to prosecute copyright over those aspects, even if it was a blatant rip-off.

So imagine you find an old game from the 80s that is mostly forgotten, but still really fun, and might do really well if someone were to give it a proper remake. Do you think the "spiritual successor" could be sold without issue, even if it's functionally very similar to the older title?

I doubt this is a thing at all nowadays. Do we have any such lawsuits in recent memory? These guys certainly didn't sue despite getting their game cloned https://www.gamasutra.com/view/feature/188097/ridiculous_fishing_the_game_that_.php

Only time I can remember this happening is with R-Type and Katakis, and that seems to have happened because it was the 80s, a big moneymaker franchise was involved, and the cloners released their clone in the same year as the original game was made. https://en.wikipedia.org/wiki/Katakis

When dealing with games from 20 years ago I would just go ahead, worry less about a real lawsuit and more about the original authors being pissed off at you if you make a rip-off that's too uncreative.

 

[RanaDinn]

I'm not sure there would be a simple answer given how IP law works, at least in the US. It's probably even messier when you consider other nations outside the US.

I've always felt it comes down to 'What the IP holder feels like doing' which is why it can be so unpredictable. They may be reasonable one moment, then unreasonable the next. Or they may weaponize IP for their own reasons (I think that's happened many times before. Like on youtube when it comes to music. Or game videos.)

 

[zwanzig_zwoelf]

Do you think the "spiritual successor" could be sold without issue, even if it's functionally very similar to the older title?

Yes. As long as you're not stealing code/data, that shouldn't be an issue. If you recall the rapid development of 'Doom clones', IIRC no one got sued for shit despite featuring similar game mechanics.

The question is, if you're going to make a 'spiritual successor', are you going to make a carbon copy of the original or take it one step further and build upon it, using its ideas as a foundation?

The former is a valid approach, but may be redundant in certain cases or result in an inferior game (e.g. you might end up creating content similar to the original game but without the original spark/charm).

The latter is a better approach in my book -- the best way to handle it is to play the original and note down everything that can be improved/expanded/reworked. Could be anything -- QoL features, interface, new unit types, depends on the game. The added bonus is the ability to get the fans of the original on board, especially if they crave for more of the same (but not quite the same), and also the ability to contact the original creators and get their blessing/knock heads with them and learn what ideas/intentions they had but couldn't pull off.

 

[RanaDinn]

Regarding 'duplicate original' vs 'expand on original' - which is the 'better' answer almost certainly will depend on the audience. You can find plenty of examples of both in any niche of the gaming community. For some games (or some groups) they want something similar to the original experience but 'modernized' ('quality of life' improvements for example.) But others may view such changes as devaluing the original experience or making the game worse. It really depends on the views of the game (including what was good or bad about it.) I mean look at the evolution of the Fallout games.

 

[Morpheus Kitami]

Yes. As long as you're not stealing code/data, that shouldn't be an issue. If you recall the rapid development of 'Doom clones', IIRC no one got sued for shit despite featuring similar game mechanics.

Some of them went as far as to steal some of the sprites, I don't think Id and co. cared so long as they had their pile of money.

 

[TheDiceMustRoll]

A big part of this is how much you make off of it.

 

[GarrisonFjord]

Personally, I've become very apprehensive of legal stuff.
Asking around is a start, but in no way can you count on it.
Maybe try specialized forums like law.stackexchange.com,
and consult >>as many<< *specialized* lawyers as you can.

Problems can include:
Laws are vast (no one can know them "all", at one time).
Laws change (it's a very active professional field).
Being in common use, does not make something legal.
Humans (e.g. lawyers) make mistakes.
Different legal systems, approach things differently.
No one can know what specific courts will decide, on specific cases.

Best way is to avoid legal stuff as much as possible, imo.
If you even think there might be issues, step back, find another way.