Hi Ryan, Technically yes, but there are fair use exceptions that may protect you from a law suit. If you published your Super Mario as non-prophet, educational software, with disclaimers there is a very large chance someone like Nintendo would leave you alone. Usually most copyright infringement cases are solved with a cease and desist motion from the copyright holder's attorneys. If they get a cease and desist motion the court will order you to stop production, distribution of your game, etc. They could also take you to court for an injunction which is a court ruling ordering you to remove, destroy, or surrender any or all works you created using the copyright to the copyright holder. Here is an example of how an injunction might work. Let us say you write a blazing new Star Wars game involving Luke Skywalker, Mara Jade, Princess Leia, Han Solo, and the rest of your favorite Star Wars characters. Somehow Lucas Arts hears about it, and want to take action against you since you have esentually created a game only legally they were allowed to create, and they have exclusive rights to create Star Wars games where you don't. What can they really do? Well, first Lucas Arts would have to file a cease and desist motion with the court stating you have to stop production, distribution, etc of your game. At this point in the state of things there is a good chance the motion would be granted. Then, you will be given orders to remove the materials until it can be agreed to or settled in court. What can you do? Well, if a cease and desist motion is granted you can try and fight it using fair use provisions, or you can simply nigotiate with the copyright holders. Under the copyright laws you can write as many Star Wars stories, games, etc that you want as long as they are for your own personal use. When you redistribute them for public play or use then there is some chance someone like Lucas will step in and ask you to stop. Knowing this you might be able to agree to their demands, stop redistribution of your Star Wars game, and keep it for your own enjoyment. However, if you wish to fight it then we go to stage 2. In stage 2 Lucas Arts could legally ask for a hearing for an injunction against you in civil court. Lucas Arts attorneys would present to the judge their side of things, how you wrote the game, that you freely used copyrighted material, and try and present evidence how they are losing money or sales because of it. You and perhaps your attorney would try and counter their arguments by showing evidence that you complied with fair use provisions that your work was non-prophet, it was open source, that it was for an educational purpose, you did it to make game x accessible to the blind, whatever. Let us assume the worst case here. let us suppose the judge passes an injunction against you. Depending on the terms of the injunction you could be ordered to stop distribution of Star Wars related materials to the public, you may be ordered to destroy your game, or could be ordered to turn all source code over to Lucas Arts. If it was turned over to Lucas Arts they then could legally update your game and sell it to the public even though you were the guy who originally made it. Though, this latter possability is slim to none. Anyway, what can you do? Well, if you were of a mind to do so, had enough money, you could technically fight the case all the way to the supreme court. Since no blind gamer has that kind of money he/she could follow the terms of the injunction and keep the game for her or himself and play it secretly. Besides the injunction Lucas Arts could try and file a law suit against you. While it is not beyond possability it should be noted that law suits are rare in fan fiction type cases. One reason is it costs Lucas Arts quite a bit of money to take you to court, and they have to prove to the court that your actions hurt them financially. In fan fiction cases such as the one I am describing if you never sold any copies a judge could decide no financial damages were done, or fine you something like $200 for inocent copyright infringement. No serious money is to be made from a law suit like that. Now, if you were actually selling the game things would be different. If Lucas Arts took you to court and won then you would be probably ordered to make your sales records available to =the court, and Lucas Arts could sue up to the amount you earned off the game. If you earned $2000 then that is most likely the most they could earn in a law suit. The lawyers will take a big chunk of that and they still walk away with almost nothing to show for it. In my research copyright law is a very open ended subject. There is no universal list of do and do nots one can point to though there are standards that have been widely accepted by the court system. One is if you want to create some kind of fan fiction like a game, book, etc don't sell it. Second, always read the license agreement of the copyright holder which will tell you who is willing to play along with fan fiction and who isn't. Third, find out of the copyright holder is well known for busting someone for fan fiction, or if they just over look it. For example, recently I did some research about Tomb Raider. While the license agreement states not to modify, reverse engineer, or in other way change the program there is lots of that stuff going on. There are Tomb Raider sites devoted to the subject of editing level maps, game sound libraries,adding new characters, etc. What I'm saying is while the license agreement says one thing Edos and Core Design don't seam to follow up and actually drag all these people in to court. There are sound ripping tools, text map editors, level editors, floating around for the TR games without any reprisal. How likely are they willing to sue a blind guy who makes an accessibility mod? Who knows, but chances are good they will over look it.
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