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