About Using Stuff You Didn't Make Yourself

 What about like creating derivative work on to tilesets?
 Say for instance I want to add a Super Mario bros level into my level and I want  to use the original graphics. However because the block/sprites aren't 24x24 pixels and that resizing them makes it wonky and distorted. I decide to spend time and draw the blocks and sprite on to the tileset with my own art style so it will appear personally satisfying on a 24x24 grid.   

I suppose if the tiles weren't taken straight from the game and resized it (unlike in Knyttoid  ) could fall into Fair Use, but I'm no lawyer and I'm not American. I'm sure you'd get away with it (even some small commercial games do), but of course that's not enough for this Forum.

It is a really complex matter. When you are talking about an iconic character, even if the sizes are different and you made the art entirely yourself, it is still considered a rip-off, and the original author can claim that you've stolen his idea which falls under the copyright act.

Mario is a very iconic character for 2 reasons.
1. Almost everyone will know who Mario is and will be able to identify him.
2. Almost everyone who knows Mario will also link it directly to Nintendo, the same way Sonic is linked to Sega.

So the problem is, that when you use such iconic character, people will automatically assume Nintendo was involved somewhere in the process of making it, or even worse, think that it was made by Nintendo.

This last one is where most lawsuits come from, especially if the end product is of poor quality.

It is a really complex matter. When you are talking about an iconic character, even if the sizes are different and you made the art entirely yourself, it is still considered a rip-off, and the original author can claim that you've stolen his idea which falls under the copyright act.

Mario is a very iconic character for 2 reasons.
1. Almost everyone will know who Mario is and will be able to identify him.
2. Almost everyone who knows Mario will also link it directly to Nintendo, the same way Sonic is linked to Sega.

So the problem is, that when you use such iconic character, people will automatically assume Nintendo was involved somewhere in the process of making it, or even worse, think that it was made by Nintendo.

This last one is where most lawsuits come from, especially if the end product is of poor quality.

  Thanks you two, but LPchip. Does this apply to both the character and the graphics of the specific game? I might have read it incorrectly but it post seems to only apply to the character.

Yes, it applies to both the graphics of mario and the graphics of the character, but also the reference to the characteristics of mario. An italian plumber named mario that always has the same style of clothing.

But the iconic status of the Mario character is far more important than the graphics of the game other than mario. As in, you'll get earlier in trouble if you have an iconic character in your game, than that the graphics look a lot like that of mario. Although the overall artstyle in Mario is pretty iconic too, especially the boxes with a ? in it that spew coins when hit. The other graphics are pretty common which you might be able to dispute in a lawsuit to be original.

I guess the biggest question here would be what exactly your end product is and how it is available to others as well as where credits are given and taken.

If you make a fan-game that follows the original closely, that no one needs to pay money for, and has a section available that everyone guaranteed will see that explains that the original graphics and concept were made by Nintendo, and that it is not at all your intention to do any harm to them, it is called acceptable to most people and the chances are slim that you'll get into any trouble.

What about like creating derivative work on to tilesets?
 Say for instance I want to add a Super Mario bros level into my level and I want  to use the original graphics. However because the block/sprites aren't 24x24 pixels and that resizing them makes it wonky and distorted. I decide to spend time and draw the blocks and sprite on to the tileset with my own art style so it will appear personally satisfying on a 24x24 grid.   

Okay worst that can happen is someone representing nintendo tells you to remove the mario graphics from your level, they can't take further legal actions against you unless you refuse. But that is extremely unlikely to happen, next to impossible I'd say.
So lets say someone from Nintendo see your level, which doesn't seem that likely. I think your 'secret' is safe with this Nintendo employ either case. You see, nobody is going to go to upper management with this and have it directed to some layer who will send you some upset email. It's just not worth the time and the nintendo employ who saw it will more likely get yelled at for wasting that time.
Then we all see a lot of Nintendo graphics and characters that isn't done by nintendo that is up, right, I'm not the only one? So I figure that if there is anything licensed to Nintendo in another product, that's where they act but your level is not a product, it's just a  project nobody makes money on without a broad audience. So imagine what Nintendo must give in to legally deal with you for this bullshit nothingness to get that level down, it could cost them shitmuch. So I'd say go ahead and make what you want.

@Salmoneous, its clear from your post that you haven't actually studied laws. So it is not nice to say something like this because its not entirely true.

If a company wants they can go much further than just ask you to remove your graphics because by using them you are violating their rights. Some companies are nice and will just ask you to remove them, some companies however (escpecially with the financial crisis going on) will try and sue you to get money from you.

As I pointed out earlier, given this specific case, it is likely that Nintendo won't pursue any actions against this, but it is still a risk that you are going to take or not. In any way, this forum will not be responsible for any lawsuits if it happens.

And Salmoneous, big companies such as Nintendo actually do have employees who actively search for this kind of content using search queries etc. So they will find the level eventually, but when its free and credits are properly given, they likely will see more costs than benefits from doing a lawsuit.

If a company wants they can go much further than just ask you to remove your graphics because by using them you are violating their rights. Some companies are nice and will just ask you to remove them, some companies however (escpecially with the financial crisis going on) will try and sue you to get money from you.

are you sure? I mean they can take it further if he don't remove the graphics but can they do much more before that? Can they sue? How would they even have a case if he made his own version of their graphics, he could just deny the infringement. What I think of is why Nintendo would pursue him. Financial crisis? Because of the crisis they would waste resources on this? Or be more aggressive? I think I miss your point.  About Nintendo searching the internet, I didnt think of that, but it wouldn't come up if we didn't talk about it like here haha. What I don't get is how this would benefit Nintendo, not that they have the power to deal with it.

About Nintendo searching the internet, I didnt think of that, but it wouldn't come up if we didn't talk about it like here haha. What I don't get is how this would benefit Nintendo, not that they have the power to deal with it.

Well, making a no-profit fan project shut down usually doesn't benefit the original creator much: it could be argued that it may negatively affect the popularity of their intellectual property (in many ways, not just by making it look bad by - say - creating a horrible game with it). It's probably more of a situation where they can't be bothered to look into every single copyright infriengement case in detail: they just go after the most popular ones, or use automatic systems where available (like the YouTube Content Id system).

For that I'm 99% sure a Super Mario themed, completely no-profit Knytt Stories level nowadays would go unnoticed by Nintendo, because chances of it becoming reasonably popular are really slim. Things would change significantly if it were used to make money, because part of it would have to be given to Nintendo (excluding cases of fair use, I guess), but in either case they could threaten to sue anyway just because looking into it would be a worse waste of time than just exercising their rights and be done with it.

Quote from: LPChip on February 17, 2014, 00:48:52

If a company wants they can go much further than just ask you to remove your graphics because by using them you are violating their rights. Some companies are nice and will just ask you to remove them, some companies however (escpecially with the financial crisis going on) will try and sue you to get money from you.

are you sure? I mean they can take it further if he don't remove the graphics but can they do much more before that? Can they sue? How would they even have a case if he made his own version of their graphics, he could just deny the infringement. What I think of is why Nintendo would pursue him. Financial crisis? Because of the crisis they would waste resources on this? Or be more aggressive? I think I miss your point.  About Nintendo searching the internet, I didnt think of that, but it wouldn't come up if we didn't talk about it like here haha. What I don't get is how this would benefit Nintendo, not that they have the power to deal with it.

Yes I'm sure. The only thing you need to sue someone is claiming something is true. I don't say Nintendo would win a lawsuit, but they can drag you to court just like that. Once you are in court, then the real issue becomes a question, like are the graphics made going to be reflected as being Mario. A judge will look to the whole picture, but given that we're talking about Mario here, the judge will also say: Everyone knows Mario, so he will not fall for saying you didn't know about Mario. A good lawyer on Nintendo's side will be able to make you confess this. Once this has been done, you are basically proven guilty of copyright infrigment.

But please don't get me wrong. I don't say Nintendo would necessarily do this, but it is a very real possibility that it could happen, and I want to warn in these cases. Just so everyone knows what the possibilities are, and believe me, if it comes as far as being brought to court, it'll change your life even if you are lucky enough to get ruled in your favor.

Quote from: Salmoneous on February 17, 2014, 11:51:18

About Nintendo searching the internet, I didnt think of that, but it wouldn't come up if we didn't talk about it like here haha. What I don't get is how this would benefit Nintendo, not that they have the power to deal with it.

Well, making a no-profit fan project shut down usually doesn't benefit the original creator much: it could be argued that it may negatively affect the popularity of their intellectual property (in many ways, not just by making it look bad by - say - creating a horrible game with it). It's probably more of a situation where they can't be bothered to look into every single copyright infriengement case in detail: they just go after the most popular ones, or use automatic systems where available (like the YouTube Content Id system).

For that I'm 99% sure a Super Mario themed, completely no-profit Knytt Stories level nowadays would go unnoticed by Nintendo, because chances of it becoming reasonably popular are really slim. Things would change significantly if it were used to make money, because part of it would have to be given to Nintendo (excluding cases of fair use, I guess), but in either case they could threaten to sue anyway just because looking into it would be a worse waste of time than just exercising their rights and be done with it.

This is speculation. I haven't seen Nintendo do lawsuits against free projects either, but that doesn't mean they don't have a team that looks into this. As I've worked on big companies, I know they have a legal department. This team will occassionaly (say once every 3 months) search for copyright infrigment cases.

Basically, if the product in question is of terrible quality and Nintendo feels harmed by it, the chances are high they will pursue it, especially if the product seems to be made by Nintendo while it really isn't.

As I've worked on big companies, I know they have a legal department. This team will occassionaly (say once every 3 months) search for copyright infrigment cases.

But I would think something as a ks level wouldn't get high priority. It's a way too small project it's like one of the under-the-radar things for Nintendo, it doesn't register as anything near a threat to them or their rights. Anyway I still feel i am right that there's no way they would make a bigger deal out of it. Why would they really go through such costly lengths to eradicate something so small. And isn't within the same jurisdiction as a piece of art or drawing on maybe deviantart rather than as a budget commercial/indie game like aa said.

Also, I hear of few cases where companies such as nintendo sue or stop productions and it seem to me that they need to be careful due to the publicity. Now it's easier with plagiarist products but otherwise I think they'll want to save face as much as possible.

Companies as big as Nintendo do not have to worry about their face that much. Only if it happens too many times in a short timespan.

Let me emprhase again, that with this knytt stories level as being free and when properly credited, I also don't think it will be a problem, but it is pure speculation and there always is a chance Nintendo could pursue this for whatever reason. I only say to not just take it for granted that its allowed for the simple reason that if I say, oh don't be affraid, all is fine, and people start to pump out a lot of Mario levels and suddenly Nintendo does have a red flag, hell will break loose including to the finer levels. Because if those were allowed then why won't my level be allowed?

Yes, I too say that chances are high IN THIS PARTICULAR CASE that it will work, but it still is against copyright so technically speaking you're not allowed to do this.

Its the same for telling you that you can ignore the speedlimit on certain roads because A. the road easily can be driven that fast and B the cops do not check the road that much. So you start driving fast and suddenly you get pulled over for driving way too fast to the point where you loose your drivers license. My argument: well, I drive there fast too and never got caught. Of course I won't pay your ticket and of course you will have to suffer the concequences. Its the exact same thing here. Chances are really low that actions will be taken but if they do then you are the one who broke the rules in the first place and its your butt that will hurt, not ours.

If a company wants they can go much further than just ask you to remove your graphics because by using them you are violating their rights. Some companies are nice and will just ask you to remove them, some companies however (escpecially with the financial crisis going on) will try and sue you to get money from you.

Don't they have a small chance of winning due to Fair Use law? I don't think such case can happen in reality, no way without a cease-and-desist letter.

Yes, of course. But there's one part that I'm concerned about, and thats this one:

Effect upon work's value

The fourth factor measures the effect that the allegedly infringing use has had on the copyright owner's ability to exploit his or her original work. The court not only investigates whether the defendant's specific use of the work has significantly harmed the copyright owner's market, but also whether such uses in general, if widespread, would harm the potential market of the original.
Source: Wikipedia

If this is hurting the market of Nintendo, it is not only raising a red flag at their office, but it is also not anymore considered Fair Use.

Quote from: Wikipedia

Effect upon work's value

The fourth factor measures the effect that the allegedly infringing use has had on the copyright owner's ability to exploit his or her original work. The court not only investigates whether the defendant's specific use of the work has significantly harmed the copyright owner's market, but also whether such uses in general, if widespread, would harm the potential market of the original.
Source: Wikipedia

then isn't it safe? This can't get big enough to harm any of Nintendo's markets in any significance. How much traffic does the average ks level page accumulate and how many people play it? In order to annoy Nintendo on this point it it needs way way more people to play it, like 100.000+ would be my guess. What is considered widespread? I don't think 20 page hits a day.