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There is a browser game that I want to port the Android. The problem is I do not want to use the same image assets because of copyright violations.

Would this example be enough to prevent a copyright violation?

Original Image:

enter image description here

This is my version. It's on imgur so that it does not blend with the white background of this site.

Also this person has not seemed to put any copyright on their game.

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    Copyright is automatic; notices are not required. – Dale M Apr 5 '16 at 0:05
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    You write that you want to "port" the game. A "port" is usually a defined as the modification of an existing program to run on new OS/hardware. Does this mean you are modifying the existing program? Or are you rewriting it from scratch? Please clarify, as this is an important point. – sleske Apr 5 '16 at 7:33
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    There's an extremely strong case for fair use here. I imagine that a prudent copyright holder would not pursue legal action against use of a single image posted for the purpose of commentary in a way unlikely to impact the market value of the work. It is prima facie copyright infringement, so the owner has a shot, but the fair use defense here seems overwhelming to me. If you're interested in how fair use interacts with Creative Commons, see Can I release someone else's work under creative commons or some other license, if its fair use? – apsillers Apr 5 '16 at 14:31
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    There is a truly gigantic elephant in this room. Why are you asking about copyright on one little image when you're essentially copying a whole game? – David Richerby Apr 6 '16 at 0:07
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    @WayneWerner: Actually not completely accurate, especially in regard to recent cases (triple town versus yeti town especially disproves your argument!) pnwstartuplawyer.com/copyright/software/… – Zaibis Apr 6 '16 at 10:13
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Copyright is for original pieces of work. What you have made, is essentially a derivative work. Copyright is automatic for all things, unless the author has explicitly waived their rights, normally through a license.

What this means, is that you have created a piece of art, that has been derived from that of the original author. You made modifications to the original artwork to produce a new one. Your creation could not, and would not have effectively existed without the original. Your image has the same shape, and the same colour tones as the original, and would likely be considered a derivative work.

Since the right to derivative works is an exclusive right to the copyright holder, you would be infringing their copyright.

  • Nice answer. You might want to address the implications ofthe apparent absence of a copyright notice. – phoog Apr 4 '16 at 23:14
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    @phoog: Assuming it was created post-Berne convention, the short version is that there are no implications of that. – Kevin Apr 5 '16 at 4:17
  • @Kevin I'd say there is an implication, namely that the copyright status of the work is the default under the law. I agree with phoog that it'd be useful to mention what that status is. – David Z Apr 5 '16 at 8:13
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    The other thing is that a court of law may spend some time trying to determine whether the derivation was deliberate. The OP's just stated for the public record that it is, so that's kind of a done deal. – Lightness Races with Monica Apr 5 '16 at 15:31
  • Phoog, Kevin, David. Yeah, I mentioned that, but it looks like I wasn't incredibly clear on that. I've clarified the first paragraph. – Zizouz212 Apr 5 '16 at 18:12
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Avoiding copyright infringement is a question of "How is it modified?" rather than "How much of it is modified?". What you've created is a derivative work of the original; to decide if your derivative is a copyright infringement, you need to see if your use falls under fair use or your country's equivalent.

In the United States, fair use is determined by a four-factor test: the purpose of the use, the nature of the copyrighted work, the amount used, and the effect of the use on the market for the original.

  1. The purpose of use. You're porting a game to another platform. This use is not transformative as copyright law sees it -- it's essentially just a re-creation of the original work, which is a major strike against a claim of fair use.
  2. The nature of the copyrighted work. It's a small fragment of a computer game. None of the usual defenses for this factor (such as "facts cannot be copyrighted" or "copying is in the public interest") can be applied.
  3. The amount used. This is your biggest defense: you're only using a small fragment of the original game. Thing is, it sounds like you plan to use many small fragments, which adds up to a big problem.
  4. Effect of use on the market for the original. This is what kills any claim of fair use: you're creating a competitor for the original, with the potential effect of supplanting it in the market.

Considering factor (4), you'd better work on creating art assets for your game from scratch. Anything less is just asking for trouble.

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The problem is not with just the image.

As you have stated, you are porting a game to a different operating system. You are, basically, replicating a game without the original author's permission.

This is outright illegal. You will get a cease and desist right away when the original author founds out, and the finished product will be instantly removed by Google if the original author contacts them.

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    You can replicate a game without the author's permission, as long as you do so without incorporating any of the copyrightable, trademarkable, or patentable aspects of the original game. Importantly, game rules cannot be protected by any of the above means. – Mark Apr 5 '16 at 8:13
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    More accurately, any of the copyrighted, trademarked or patented aspects of the game. – sjy Apr 5 '16 at 12:06
  • @Mark Could you perhaps expand on why game rules can't be copyrighted (or patented/trademarked/whatever?) This seems like useful and relevant information that should probably be in one of the answers. Maybe add it to yours? – reirab Apr 6 '16 at 0:28
  • I don't know exactly why you can't, but take a common card game for example, I can't copyright the rule "must follow suit" and then charge for royalties for every game that uses this rule. This setup seems really insane to allow game rules to be copyrighted. For a Role-playing game for instance, I can't copyright the rule "0 HP and you die". – Nelson Apr 6 '16 at 0:31
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    @MartinBonner Idea/expression divide. You can copyright a particular expression of the idea "must follow suit", but you can't copyright the idea itself. The full reason why you can't copyright game rules is probably worth a question in its own right. – Mark Apr 6 '16 at 18:07
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Most legal way: Contact the original developer for permission to port his game (including his images). Everything else is probably illegal, because it sound like you are "copying " his work.

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If you port it by recycling any code or otherwise copyrightable material created by someone else you should check the licence it is released under before publishing it in any form as if you modify an all-rights-reserved work you will have made a derivative work. The right to restrict or prohibit derivative works is included in the all rights reserved.

However if you are re-writing everyhing on your own you should be fine copyright-wise. The open sources movement has grown. You can probably find plenty of free-to-use art with maybe a small sidenote requirement that you mention the author in a "credits" or "thanks to" section. Why bother and take the risk with potentially restricted and closed works if you are a small guy when there's an ocean of open sources?

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