Can You Use Licensed Characters Even In Fan-Made Games?

CopyrightDuring a lecture I was giving about intellectual properties, a student told me about seeing popular game characters (Mario, Link, various Pokemon) in fan-produced merchandise for sale on the internet and wanted to know the law’s actual stance on selling products of your own design that feature licensed characters.

While a game developer would need to consult a lawyer for what the law actually says, the scenarios my student described sound like clearcut copyright violations to me. You cannot make money off of another’s intellectual property without their permission. That is, after all, why an intellectual property owner protects the property with a copyright, trademark, or patent, depending on the nature of the property.

Where you do see merchandise using video game characters for sale, the copyright holder probably hasn’t discovered the violation yet. If they do, they may very well take legal action, and the penalties for violation can be quite severe:

Type of Property Penalty for Violation
Copyright $150,000 per violation plus damages
Trademark Penalties and/or seizure or destruction of offending
Patent Damages
Trade Secret Damages

That the people who made or sell the merchandise considers themselves to be “fans” is irrelevant. Just because you really, really like an intellectual property and wish to pay homage to it doesn’t excuse you to use the property as your own.



About David Mullich

I am a video game producer who has worked at Activision, Disney, Cyberdreams, EduWare, The 3DO Company and the Spin Master toy company. I am currently a game design and production consultant, a game design instructor at ArtCenter College of Design, and co-creator of the Boy Scouts of America Game Design Merit Badge. At the 2014 Gamification World Congress in Barcelona, I was rated the 14th ranking "Gamification Guru" in social media.

Posted on May 26, 2014, in Game Production and tagged . Bookmark the permalink. 1 Comment.

  1. I would be interested about how this relates to free fan made games. I remember someone making an amazing version of Streets of Rage. At first Sega seemed ok with it, then suddenly got the lawyers in…. I think it may be because it was better than the originals lol

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