Fan sites and trademark law
November 8, 2010 7:09 AM   Subscribe

Will my fan site violate trademark law?

I want to preserve my anonymity, so I'm coming up with a situation just like mine, except with some names and keywords changed. I play a game called Awesome Pirate Fairy Ninjas from Outerspace. You can deck out your character in Awesome Armour to make it awesomer, but all the different Awesome Armour you can put on works together in complicated ways. This mean that it takes quite a bit of thinking and planning to decide what kinds of Awesome Armour you will use. There is an in-game tool called The Awesomator and its purpose is for you to plan out what kind of Awesome Armour you will put on your character and calculate its effects.

Purely as a fansite, I want to make a website that mimcs The Awesomator so that people can plan out their Awesome Armour without having to boot up the game.

* Am I violating trademark (or some other law) by mimicking a part of the game? Bearing in mind that it's a tool that would be useless to anyone not subscribed to the game.
* I was thrilled to find that is not taken. Is it okay to use that domain for this?
* Assuming the above two are okay, can I put some Google ads on the site, to maybe cover some of the costs of hosting? I am not going to get rich from this, folks.
posted by anonymous to Law & Government (11 answers total)
I am an intellectual property attorney (in the US), but I am not your attorney. This is not legal advice.

It all depends on a lot of details that you didn't give in your question. But even if you followed up with all of the necessary information, an attorney can't give legal advice to an anonymous person over a public internet forum. It would violate all kinds of ethical rules.

You should consult a competent attorney in your jurisdiction, wherever that is. Ask about a free consultation and shop around. While shopping around, ask about fixed-fee arrangements so you know exactly how much the work will cost. Also ask if the attorney can offer a sliding scale, since you're not looking to spend a lot of money.
posted by jedicus at 7:22 AM on November 8, 2010

Let us assume that Awesome Inc. owns all the IP around this Awesome Pirate game. If I were Awesome Inc. I would be looking at my copyrights first, rather than my trademarks, to stop you, likely starting with a DMCA takedown notice. You might claim fair use as a defense then I will point to the commercial nature of your site with its Google ads. Whether I win or lose I can make it expensive for you, and I do think I stand a good chance of winning. There are ways to mitigate the trademark risk by reducing the likelihood of confusion. Not so much so when your site might contain pcitures of the copyrighted armor etc. As always lawyer up for safety sake and don't trust what you hear from unknown cranks on the internet.
posted by caddis at 7:24 AM on November 8, 2010

Presumably, Awesome Pirate Fairy Ninjas from Outerspace and The Awesomator are both trademarked by BigInc Game Co so I would avoid using as that could actually cause confusion.

In terms of the other stuff though, I think you'll be fine. You're using your own code to calculate Awesome Armour (even though you're mimicing their math) so this is more or less the same thing as independent Farmville Crop Calculators or WOW reputation calculators.

The screenshots you will presumably need for the armour parts are arguably fair use for the purposes of commentary.

You should however make sure you have a disclaimer on your site. If Awesome Pirate Fairy Ninjas from Outerspace has any kind of foothold, they may well have a section that guides fansites on this matter. I know Second Life has a standard disclaimer they request all sites display saying that the site is not affiliated with Linden Labs and that Second Life is a trademark registered to them.

IANAL and this is just my experience of "best practice" and some consultation with my own lawyers when creating player fansites... of which I have created a tragic number through my years of gaming. Send me a MeMail if you want details.
posted by DarlingBri at 7:28 AM on November 8, 2010

I am not an attorney, so I don't need to worry about ethical restrictions on giving you legal advice.

I believe a lot of this will come down to the personality of the trademark owner. If they don't like what you're doing, they could have their attorney go after you. Then it would be up to you to decide how much you wanted to fight it, how much money you wanted to spend on legal fees, etc. If the answer is "zero" then it doesn't really matter how strong a case they have. They just need to ask (or even ask your ISP) and you're done.

On the other hand, if the trademark owner is more laid back and happy to have a fan ecosystem develop around their work, then you'd be okay.
posted by alms at 7:28 AM on November 8, 2010 [1 favorite]

There may very well be someone at the company who could answer this question for you - generally, game companies like fansites and are willing to work with them. If you want, drop me a memail with the actual game name and I might be able to put you in touch with the right person.
posted by restless_nomad at 7:50 AM on November 8, 2010 [3 favorites]

Yeah, check with the company. Most game companies are pretty savvy about things like this and already know what they think about projects like yours.
posted by valkyryn at 8:13 AM on November 8, 2010

You will probably be violating copyright. Awesome, Inc will probably not care, though.

I am not a lawyer, but I say go for it. If they make a fuss, just take down the site. Presumably there's not a lot of money to be made by suing you.
posted by wayland at 8:32 AM on November 8, 2010

IANYL but I'd contact the game company and ask them. The software company I'm a lawyer at generally encourages fan sites but does scrutinize the use of our trademarks and copyrighted "look and feel" of the software. What you're doing in questions 1 and 2 could potentially cause some concern. We're also much more relaxed about things when fans preemptively ask permission for this stuff, rather than just going ahead and doing it (which tends to create a more adversarial relationship.)
posted by naju at 8:48 AM on November 8, 2010

Company policies are a good place to start - for example, CCP allow people to make Eve Online branded web sites, apps, etc, so long as there's no charge for them.
posted by rodgerd at 9:35 AM on November 8, 2010

It depends entirely on the company.

Some companies are extremely protective of their IP, and have essentially crushed all fansites before them. Other companies are really open about it, knowing that what you're doing is fostering love of the game, which benefits them in the end.

I have a lot of experience with fansites - with running them, and with friends who run them. I have seen examples on both ends of the spectrum.

Back in the late 90s/early 2000s, 20th Century Fox got a bug up its ass and went after everyone who ran an X-Files fansite. They dispatched legions of lawyers to bury fansites under an avalanche of takedown requests. It takes very little complaining by 20th Century Fox to get your web host to shut down your website.

On the other side, EA has always been extremely open and permissive with their Sims franchise. Several fansites offer paid content, paid subscriptions, ads on every page, etc. If EA or Maxis has ever gone after a fansite for any kind of IP violation, I haven't heard of it (and I'm pretty deeply involved in that community).

I assume you don't want to actually take this battle to court and find out if you win. You want to know whether the company is going to crush you, or happily ignore you.

The way to find this out is to research what has happened in the past. How has the company behaved towards its fans? It may take some digging, some Googling, some forum posting, maybe emailing some other webmasters.

You can contact the company directly, but I dunno. Asking for permission often sets off alarm bells for a company's legal department. I suspect they would tell you "no" just on principle.
posted by ErikaB at 11:15 AM on November 8, 2010

Oh, Lord, you don't ask the legal department. If it's an online game (which it sounds like it is), they'll probably have a community management team - those are the folks to ask. Failing that, the PR guys know what to do. (I've been a CM in the online game industry for years, hence my offer above - we all know each other, for the most part.)
posted by restless_nomad at 12:51 PM on November 8, 2010

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