Ultima Game Developer: Legality of Fan Games

Confused about Intellectual Property?

Electronic Arts has allowed numerous fan games to release, free of charge, including remakes of their existing games. However, they have never GRANTED permission for these games, as that would imply some legal relationship that they cannot afford to see exist. So fan games exist in a sort of “grey area”, neither actively encouraged nor purposefully destroyed. That is a big difference over some other game studios, who guard their intellectual property from even their own fans.

What does this mean for those of us who are creating Ultima-style games? For the most part, we are lucky to have as much unofficial support as we do. The Internet is rife with examples of game studios who have sent Cease and Desist letters to fans who would rerelease, upgrade, or offer mods to their games. EA, on the other hand, has allowed projects like Lazarus, the Ultima 6 Project, Exult, and Pentagram to build up around the Ultima series.

However, that does not mean we are free to do whatever we want with these games. Where should be draw a boundary, however? Let’s take a look at what rights that EA has:

Copyright

For all intents and purposes, EA owns everything having to do with the Ultima franchise, except the character of Lord British, which is retained by Richard Garriott. This includes all of the game titles, artwork, music, characters, descriptions, etc. Copyright law is difficult to sort through, because it does provide rights for advertising, review, and fair use, which can be extremely confusing.

Using copyrighted material requires permission, generally in writing, from the copyright holder. In the vast majority of cases, the copyright holder will either not respond, or issue blanket responses (i.e., “we cannot grant permission”) to requests to use their material.

Not receiving a denial is not the same as receiving permission. While some fan games have used copyrighted material in their final product, this IS a violation of those copyrights and technically illegal. Even creating your own version of these materials cannot avoid this factor; your rendition of Stones still falls under EA’s copyright as it is a derivitive of their copyrighted work.

Distribution

Except for Ultima IV, Electronic Arts has an exclusive distribution right to all of the Ultima games, which means that under no circumstances can you distribute the executables, code, art, or music assets used for those games along with your own. Additionally, only the Ultima Dragons have a distribution right for Ultima IV; however anyone can obtain the game, for free, from UltimaForever and Good Old Games. This does NOT allow anyone else to redistribute the game, however.

Some remakes are able to get around this by requiring source materials to be owned by the user, and then accessing these materials from the original source. For example, in order to play an Ultima game created in Exult Studio, the player must own a copy of Ultima VII and/or Serpent Isle, and the fan game can then draw on maps, objects and sounds from within those games. While the modification of the engine is still within the “grey area” of copyright infringement, the resulting product is not redistributing copyrighted material, and is therefore more likely to be overlooked by the corporation.

Legal Rights and Responsibility

Corporations are not only required to file for copyrights to protect their intellectual property, they are also required to actively protect those copyrights. This means issuing “Cease and Desist” letters to those who unlawfully use their copyrighted materials without permission. Similarly, many companies fear that granting permission can (incorrectly) be thought of as releasing their hold on their IPs, they will not grant permission for fan work.

If you receive a cease-and-desist letter, don’t start to panic immediately. Comply with their request, and contact the company and see what they are wanting done to comply with their regulations. Often, a simple title change, removal of an offending piece of material, or adding a notice that the fan game is not endorsed or supported by the copyright holder is enough to allow a game to continue. If they are unwilling to allow you to resume, but will not state a reason, chances are good that the corporate lawyers are involved. Write a polite letter to the Copyright Agent at the company (the information for EA can be found here, explaining that you are a fan of the series and what your game is about, noting that it will not be released for profit, and requesting that they allow you to continue. If you can assure the company that you are not misusing their intellectual property, diluting their product, and that it will not affect their profits, you can sometimes be allowed to continue. In the past, some companies have even reviewed fan games before their release, to ensure that their copyrights are well respected.

Other Information

• EA’s Legal Notices
• Fangame on Wikipedia
• Understanding Intellectual Property Rights on BizDharma

What’s This Mean for Your Game?

So what can you do to protect yourself? Well, not much, unfortunately. Here are the big things:

• Do not distribute copyrighted materials. Make your own music and assets, which although derivative works, are unique to your game.
• Make it clear, in legalese, that your game is based on copyrights held by EA, and that your usage is, A) without their permission, and B) Does not challenge the copyrights held by the company.
• Make it clear that your game is not for profit, and will be available for distribution free of charge.
• Respect any company correspondence you receive, to prevent legal reproach.

While we can never anticipate trouble with fan games, it is better to prepare in advance for such eventualities than to be surprised when a company exerts its rights. Yes, it sucks when it happens, but remember that it is better for a company to protect the rights to it’s property, shutting down a few fan games, than for fans to never again receive new games in that series.

And to be honest, who would NOT prefer a new, official Ultima game?