It's good advice. Use the free assets we have availble here to create a similar game model if anyone absolutely feels they must replicate. Otherwise I'd just say stick to creating new characters and IP.

I would also say exercise caution if purchasing copyrighted assets online.  It's your responsibility to make sure the seller has a license and that said license grants you permission to use the assets in the way you want.

Even though you may have purchased them in good faith, you can still be shut down for using them, and your only recourse is to go after the seller.

I'm late responding to this ...

Well, to start, you're "not an expert" on copyright, but you want to publish multi-paragraph long lectures to others?  Think about that for a moment next time before you post.  It's way too obvious you're not an IP lawyer, but worse, you're essentially a novice in copyright matters.

Now for a point by point breakdown of what's badly mistaken about your post :

(1) "YOUR WRONG!, this is the wrong attitude to have, you will probly get sued, and it will cost you."

The likelihood of being sued over a copyright matter by anyone at any time is actually astounding small, which you would know if you asked a lawyer or researched the matter by looking at real world data.  There are only so many courts, and in some countries the highest level of courts have exclusive jurisdiction over copyright (blocking the far more numerous lower courts from taking such a case).  For example, in the United States, a copyright case must originate in Federal district court, of which there are 94 in total for the entire country of 320+ million people.  It should be immediately obvious that the vast majority of copyright infringements will never see a day in court.

Further reasons make companies reluctant to sue.  For one, IP law is very complex and very uncertain, and that makes any lawsuit potentially an expensive and prolonged affair.  It's incredibly rare to see IP lawsuits over matters of less than $10,000 because it's very difficult to get a win out of court for less than that.  Awards of attorney's fees are even rarer in intellectual property cases than many other areas of law, as well.

Beyond that, suing is always bad public relations.  Always.  No company wants to be in the press because it filed a lawsuit, especially against hobbyists or a much smaller competitor.  That immediately creates the impression of a David vs Goliath situation, except that Goliath has to bring lawyers (and preferably the more stubborn and experienced ones).

In the Internet age, one also has to consider the impact of pseudonymity and anonymity.  It's simply a matter of practical reality that you cannot successfully obtain money from someone you cannot identify the real name, location, or monetary accounts of.  Sure, it's an easy win in court by summary judgement if the defendant doesn't show.  Yet how exactly are you going to collect from John/Jane Doe ?  The types of copyright cases we're talking about here aren't criminal law; the FBI is not going to be hunting anyone down to make some company feel better.

(2) "they sell a game for let's say £30.00 , you sell yours for £1, for every sale you have they will say it's a lost sale for them,  you sell 10 games earn £10.00 or nothing, they lose 10 games £300.00."

This is a spurious legal theory fed to you by an astoundingly ignorant news media, developed mainly by content companies that indirectly profit from a misinformed public.  No court in any country recognizes this abstract theory of "a lost sale" without supporting evidence.  And no, sales of your work do not automatically or implicitly translate into sales of another different and incompatible work.  You've swallowed a line of nonsense whole.

What normally happens in a real court is that during discovery, the plaintiff's lawyers are going to make requests to investigate the financial condition of the defendant.  This inquiry will include any and all relevant financial account statements.  If the judge permits it over any relevant objections, the defendant will be forced to reveal what sort of income streams they've got and where they're coming from.  From that, there will be further filtering to figure out how much of it may actually be relevant to the case.  Only then are we starting to get anywhere near a calculation of actual damages, and even so, we're glossing over the whole trial and assuming the defendant is going to lose by default.

Now, what most small time defendants need to be concerned about is not actual damages at all.  Actual damages in these trivial cases are way too small.   Which again is why they practically never go to court -- except in error or due to malice on account of the plaintiff.  Statutory damages are the real sledgehammer of copyright law, because there the plaintiff doesn't need to prove specific harm, only that the infringement occurred (potentially willfully).  If they manage that over all available defenses presented, then the judge (or jury; some civil cases have juries) will be able to slap statutory damages of up to $150,000 per work infringed.  That's a huge amount of money considering the comparatively modest burden of proof.  Of course, most smaller defendants don't have anything like that kind of money laying around, which is why [a] they're not going to be sued like this, and [b] no judge in their right mind would award that much (juries, on the other hand, can be remarkably dumb).

However, even if you lose a copyright suit it's not the end of the world or your life.  It'll probably be the end of your (likely already non-profitable) business.  You don't think that serious people actually do business under their own names and accounts, right?  Get an LLC.  That's the main reason corporations even exist; to insulate and protect individuals from business related losses.

(3) "the stuff I'm using is 'fair use' anyway"

Most people who say this don't actually know what the relevant tests for fair use are (U.S law has four elements, and no, you don't have to meet them all at once).  They're using it as catchphrase rather than legal theory, and that can be dangerous in a commercial context.  However, non-commercial uses are almost always found to be fair use.  Both the courts and plaintiffs care about money in these IP matters out of sheer pragmatism and common sense, if nothing else.  If you've made not a cent, fearing a lawsuit is outright ridiculous.

In any case, if you want the strongest fair use case, follow these guidelines:

{*} Transform the materials you use significantly, and merge them into a larger whole that is notably and obviously distinct.  The greater the apparent distance between the purported "source material" and your work, the better.

{*} Do not directly or indirectly sell any product or service which can be reasonably connected to unlicensed materials.

{*} Use as little of other's unlicensed works as you can.

{*} Make your own works operate or compete in a different market than the materials you've drawn from.

(4) "let me explain, just because you see someone has done it and there game has been downloaded for years and nothing happened to them, doesn't mean they are not being watched. You see, these company's pay lawyers to look after there intellectual property, and go after those that are infringing on the property they are paid to protect, but they won't do it straight away, they will wait until it is financially worth it."

This is basically a caricature of evil vulture lawyers at Terrible MegaCorp 9000.  Nobody pays lawyers to do this; it wouldn't be cost effective.  Good IP lawyers cost hundreds of dollars per hour, or several hundred thousand a year for the typical corporate lawyer at a multi-million dollar giant.  That's serious time and money not to be wasted hunting down small time infringement on the internet.

Now, what companies actually and regularly do is hire cheap non-lawyer grunts to scour the internet for stuff that vaguely looks like something they might own, and then issue DMCA notices to service providers to get it taken down (often automatically without question or verification, because service providers don't care).  A DMCA notice is cheap, fast, and efficient -- pretty much the complete opposite of a lawsuit.  That's why Congress invented them (well, that, and the drastically overworked federal court system).  Nobody loses any money or their business over a DMCA notice the vast majority of the time.

You'd know if you were likely to be actually sued because companies send warnings first (and no, they're not DMCA notices).  Those are generally known as "cease and desist" letters, which (politely or impolitely) ask you to stop doing whatever it is they don't like.  If they're very serious, a C&D will normally make it obvious that the lawyer who wrote it really does represent the copyright holder, that they know who you actually are, and that they've already considered defense elements such as de minimus use, parody, satire, reporting, transformation, non-commercial use, and other facts which would imply either non-infringement or fair use.

(5) "ok, now il admit I am not an expert in copyright but I believe this is what could and would happen."

This is not what happens in the real world.  It's fantasy.  See the recent case of AM2R to understand what actually happens (DMCA notices, good bye download links, no lawsuit, not even a cease-and-desist letter).

(6) "game development is extremely hard to get into to make any sort of living, so don't make it harder by trying such ideas no matter how much you think it's harmless fun, you could come back to bite you in the arse. It's not worth it."

That's not for you to decide.  Let people make their own decisions.  If people want to spend their time and effort making fan games or clones, especially non-commercial ones, then I say fine.  It's really none of anyone else's business to be arrogantly lecturing them over it.

(7) "i have had a small Encounter with something similar and was very lucky with what I was advised. I too had the idea of fan based game whilst learning game development, and this was one of the biggest things I have learnt, so I thought I would share my experiance with you newbies."

It's the blind leading the blind.  I can tell you were arrogantly lectured by some fool who wouldn't know copyright law or practice from a hole in the ground.  Don't go around spreading misinformation because of it.

Right, almost always it will fall into fair use category unless you are making a good profit. But there are also zealous companies which would harrass you even if you are making little or no profit.

No one is totally right or totally wrong here.

Putting all the effort into creating something original would be better than creating fan work. Before reading the thread I thought it would be about how you could get haters from the fanbase if you created a non satisfactory fan work.

Also, it is "you're" not "your" (not) seriously

@chasersgaming :

Sorry if I was too harsh.  It's one of my biggest pet peeves when people start lecturing or advising others without having learned the topic.  Undoubtably I could have phrased some things nicer, but in my experience if you try to be friendly and dance around the edges of a serious topic people rarely listen.

@mold :

The pre-existing fan base is definitely a matter of concern, mold.  I thought about mentioning something in that vein, but the post was getting far too long already.  Suffice it to say that pre-existing fans are peculiar about their tastes and difficult to please.

Honestly, the three biggest issues for fan games are:

(1) being far too ambitious because you want to imitate a complex, high budget game, drastically overspecifying the design and thus never getting close to finishing with the limited time & labor available

(2) finding enough reliable contributors who can handle the specific project goals with the right skills, and

(3) managing the project even though nobody is getting paid for this and often there's not even a formal leadership structure

These are good reasons to decide on an "original" project rather than a fan game.  All of these factors can be controlled if you're starting from square one.  Streamline and simplify the design, use as much pre-existing open content as possible, and establish a firm leadership structure early.

Both the courts and plaintiffs care about money in these IP matters out of sheer pragmatism and common sense, if nothing else.  If you've made not a cent, fearing a lawsuit is outright ridiculous.

I don't think that's entirely accurate.  Back in the olden days there was a super hero themed game called Freedom Force that had a very large community of modders making models and skins for just about every super hero ever created (even the obscure ones).

They were all made available at no charge and there were no other video game options on the market featuring these characters, but that didn't prevent Marvel (and I think DC) from sending C&D orders to a lot of modders.

They eventually gave up and developed their own titles and the Freedom Force community still exists and publishes copyrighted works, but, unless the law has changed, they still have the option of shutting it down to this day.

@Boom Shaka :

In certain rare cases, sure, you'll get cease and desist letters.  That's still shy of an actual lawsuit.  A company would have to be brain-dead to actually file a lawsuit over purely noncommercial activity; they might as well flush money down the toilet.  Even if all their lawyers and administrative staff are on salary there are unexpected costs that will come up when you actually go to court, and the likelihood of bad PR and subsequent sales decline once the matter spreads in the media is way too high.

It wasn't always like this.  Before the rise of the internet and the passage of DMCA-style laws in many countries, frivolous and counter-productive lawsuits were more common.  That's mainly because companies had no idea what else to do about infringement and could limit the media impact.  Some were all too willing to file lawsuits merely to "send a message" even if they literally could not earn a dime by doing so, all premised on the dubious theory that striking one or two infringers down with lightning would somehow stop all the rest.

Further note that the case you're referencing contains trademark issues.  Trademark cases are typically a lot easier to win than copyright cases because there are fewer defenses available (and the fair use defense works by a totally different set of rules than in copyright).  Companies often police trademarks more vigorously because they see the specific names and characters as a direct part of their marketing brand.  Thus it's a good rule of thumb not to infringe trademarks even in fan works.  That's generally going to require renaming a lot of things and erasing identifiable symbols or motifs present on characters.

Marvel is also now owned by Disney, one of the most litigious and irrational companies on Earth.  My recommendation is to stay away from them; they don't want your support.  (Even worse, their lobbying for endless copyright terms and the acquisitions of Pixar, Marvel, Lucasfilm, and others strongly suggests their preferred business strategy is consolidating and milking many cash cows forever.)  Perhaps some more relevant names to drop in the gaming space are Nintendo and Square Enix; they have minimal appreciation for fan work as well.  With a little research about who owns what you can often figure out exactly what kind of response your fan game is going to get (if any).

@chasersgaming :

It's all right.  I just get concerned when I read these kinds of posts.  Many people don't understand the law or their rights and this kind of well-intentioned advice can lead them to think there's no hope and no options but to pack up and quit.

when i first started hobbyist gamedev back in the 90s i used sprites ripped from old game roms. back then there wasn't much in the way of freely available stuff like there is now. these young whipper snappers have it great with all this high quality open content. i used to have to walk uphill both ways to school with no shoes on. seriously though, there is so much good stuff to use why risk a cease & desist?

It seems that this discussion is similar to fan based art based on IP. Many discussions have been had and many arguments have been made in both directions. I dont think anyone disaagrees in either case that in general its a bad idea. I would summerize the same for fan based games. In general its a bad idea regardless if anything comes of it.