AtariAge may have had Cease & Desist for Princess Rescue

This effects homebrew developers regardless of platform so I thought I'd post my thoughts on this.

AtariAge and homebrew developer nicknamed Sprybug produced a wonderful homage to Super Maro Brothers called Princess Rescue.
http://www.youtube.com/watch?v=73TcDWQDFMk

Recently it was yanked from their storefront without warning
http://atariage.com/forums/topic/215885 ... -releases/
http://atariage.com/forums/topic/212554 ... try2827513

What is frightening for me is that this was a tribute game that did not mention Mario or reuse sprites from the subject matter. Gameplay cannot be protected.

It also appears that communication - even to acknowledge a threatening letter - appears to be forbidden. What happened to freedom of speech?

Even though the sprites are not direct rips, it's still Mario's likeness in the game. Couldn't that be the reason for the C&D?

Similarity is not infringement. AtariAge was careful not to directly reference Nintendos IP in code, assets or packaging.

This goes well beyond "similar".

So the music isn't under copyright control? It sounded very much like the original.

Why all the speculation? Why not just contact Sprybug and ask him what the reason was? If he doesn't respond, then that's the end of it. If he does respond, then his answer is what you should accept at face value and that's the end of it (even if all he says is "I cannot talk about it"; do not don a tin-foil hat).

I should note that I have not discussed this with other moderators, but I am considering locking or deleting this thread. My concern lies with the fact that discussions of something that may involve legal ramifications with Nintendo could trickle back here and bring unwanted attention to this site/forum, harming everyone. It's pretty easy to search Google for relevant words and find this thread. I'd feel a lot more comfortable if the situation with AtariAge and their homebrew remain over at AtariAge and not be brought here. Think about the bigger picture.

It would be sad if homebrew developers cannot at least share information about chilling effects of overreaching companies. The next game that gets targeted may be less similar. It may be your next game. It may be mine.

Again you're speculating -- we don't know what happened with regards to Princess Rescue. Sprybug would be the only one who knows at this point in time.

If the issue is of a legal nature: if you haven't ever been through a legal battle with a business/company, or a county/state/country, then respectfully I don't think you understand the ramifications it can have on a person for the rest of their life. I have been through such a legal battle (and am going through another presently as well, though of a smaller calibre); the effect it has on a person is devastating. If you want me to go into details I can, but you can get an idea here.

Honestly, to me, the game looks like a Super Mario Brothers clone. I can absolutely imagine an intellectual property agency having concerns with it. Finally, if you think this is the first time it's happened, then you're obviously too young to remember this which happened in 1987 or 1988 (I forget). Go find Youtube videos of this game -- it's less similar to SMB than Princess Rescue is. (Edit: Someone on Wikipedia literally just modified the page after I linked to it. Cute...)

The bottom line is that homebrew developers are free to do whatever they wish -- just don't make something that's "like" an existing commercial game developed by a company that has a track record of lawsuits. Make your game + source code available for free -- it's the financial aspect (selling the game) that often initiates trouble. And above all else? Seek intellectual property legal counsel before releasing such a game. We colloquially call this CYA (cover-your-ass) here in the States, and it's best to do it beforehand, not after. Rants about "freedom of speech" and other whatnots don't matter -- excessive focus on capitalism and commercialism in the US since the 50s are the reason things are the way they are today. We (US citizens) have no one to blame but ourselves for it. I know that's hard to stomach but it's true.

Guess I'd better change my avatar!

Heh, just kidding... I kinda gave up on making a Sonic game. I may make something similar one day (definitely not as similar as Princess Rescue is to SMB), or I may even use Sonic's universe and release it as a fan game rather than a commercial product.

I see nothing wrong with that. You copy someone's work, you get blamed. This is justice.
If I ever released a game I'd be very angry if someone copied it or made a sequel of it without telling me anything.
It doesn't matter if it's a huge company or just a person who did something during his free time. It also have nothing to do with capitalism, the US, or whatever.

Ok guys, playing out doomsday scenarios of companies just taking down games willy nilly is kind of silly. (uh, ya)

I mean look at the video, it's full of infringement.

Lets start with the music, it's pretty much a direct rip.

The enemies CLEARLY resemble goombas.

The main character resembles Mario with the colors of his clothes.

Now if it was any one of these things it might've not been a big deal (except maybe the music for how it blatantly copies mario) But combine all of them and you have a pretty clear case of copyright infrigement.


TLDR; If you didn't want Nintendo to C&D your game, you shouldn't have infringed on their IP.

Well now I want it.

What IP? 192.195.204.26?

The term "intellectual property" is designed to confuse, especially when abbreviated. It conflates copyright, patent, and trademark, it conflates those with exclusive rights in land, and it encourages readers to take this conflation for granted.

Based solely on the video, I agree that the similarities in the music and character likeness make this a fairly clear-cut case of commercial copyright infringement. But there are also cases of "not the same, but too similar" and "nonliteral copying" where he who can spend more on legal representation wins. In the early 1980s, companies were using copyright to claim exclusive rights to entire genres. Where does it end?

I would think that on some level Nintendo didn't really want to do this. This is a niche market and probably isn't going to cause them any problems if they had left it alone. But if they hadn't done something it may have been seen as them being weak to enforce their IP rights and encourage others to go ahead too.

Ah, I forgot to follow up about this...

The moderators (well, a few of us anyway) discussed whether or not to do anything about this thread (re: my concerns). A vote wasn't taken; we generally don't work like that, instead we just sort of discuss points/issues/history and then let the majority of opinions define what the ruling should be.

The result was that this thread should be left unlocked/open for discussion/commentary as present.

So we shall leave it. :-) Onward ho!

I'm glad nesdev continues to side with open discussion on issues that effect the devs who rely on this forum for information and support.

Silence means harassment wins. Tribute games that use all original programming and assets are not hacks: They are works of art and love. Not informing ourselves is in some ways worse than the companies who directly kill our freedom of expression.

I don't get why anybody would try to defend this by saying it doesn't infringe on Nintendo's IP. A company will care about similarities and likenesses once somebody looks at a game and thinks, "Oh, it's Mario!". This homebrew soft is a great piece of work and I'm glad it was made, but something that is so obviously a mario clone homage shouldn't have been sold on cartridges. Had this not been so [obviously] sold, and instead was offered as a free homebrew ROM download, Nintendo would have likely been a lot less concerned.

While this game's sprites are not identical to any sprites featured in the original NES games, they are obviously modified (mostly scaled down and color-reduced) or were drawn while the artist was looking at the original. I am in particular referring to the Mario sprites' facial features. The look just screams "Super Mario Brothers 3", even more so for the small Mario sprite.

Pointing out, "These aren't directly ripped sprites! The music was re-created! He never used the word Mario!" is a pretty snarky defense that seems to be founded in small technicalities...

Sorry if that comes off as overly angry or harsh, it's just an argument I see frequently comes up and the "similar-but-not-the-same" defense has been irksome to me for a while.

I assume Princess Rescue Inc for Kindle has absolutely nothing to do with this.

I completely agree. I really fail to see the programmer or AtariAge as victims in this case. If someone wants to clone Mario on the 2600 as a homage or an experiment, that's fine, it's just fanwork. But once you try to sell that, you're just asking for trouble.

Well, that's one area where I agree with Stallman.

I agree, but it's worth mentioning that many people seem to equate all those ideas together anyway. "Dude, you should get that game patented."

Have you seen "Flash of Genius", with Greg Kinnear? The guy stayed in court with Ford for years, but the question at the end was: Was it worth it for himself, his family, or anyone else?

I would call that empire-building on their part, and the sheer egotism in the culture of companies like Atari was awful. But, pride is before a crash, right?


Prior art? It looks like this book came out earlier this month.

Don't make money off of other peoples' assets and you won't run into trouble like this. Every Mario fangame basically has to be freeware, end of story. Homebrews are safe, guys, just be careful if you're putting the games up for production/sale.

Apparently slobu is the only one to think they're victims but he haven't even figured it out.

So what exactly happened, in plain writing not having to hunt through these mess of threads?

Still, change the assets...release the ROM as another game, and have an IP patch with it to change the assets and ROM back to the way you really want it to be seen as.

That's what Id did for Commander Keen after the "Wintendo" deal fell through.

The only problem here is that this doesn't solve the problem for people who like to buy actual carts to collect.

A rather impressive SMB homebrew clone was created for the Atari 2600, used the likenesses of Mario, Goombas, etc, and played the original SMB theme.

From what I can gather, it looks like this ROM was originally available for sale as a physical cartridge, alongside several other homebrews on carts. I don't know if the ROM itself was available as a free download.

The game and cartridge are no longer available for purchase, and no explanation has been given.

Everything else, including talk of a C&D, is speculation because the parties involved are not giving any information.

---------- SPECULATION BELOW ----------
If it were indeed a C&D, I believe it would've been because the game was available for sale (for between $20-$50 each, if the prices of the other games are of any indication), which means the producer was making money off of characters being used without permission. Recouping for lost sales is a legitimate reason to threaten legal action, regardless of how ridiculous the situation may be. If it were just a free download instead of a purchased good, everything would've been fine, because Nintendo isn't losing money to a game that used its indica without permission.

They still may not like that one of their assets is being used without permission (potentially doing something or being portrayed in a way they don't like), but it would hurt them more than it would help them to say "no fan games / fan art / fan anything", so they likely would take no action. Hence why various Mario flash games and centralized SMW romhack sites still exist, but the minute any of those products go on sale, it's fair game.
---------- END OF SPECULATION ----------


There's nothing stopping them from offering a "cart kit" of an empty cartridge shell, a PCB and components minus the ROM, some screws and a sticky label, and just letting you burn and build the cart yourself. That way, they're only making money off of selling parts for a cartridge, without actually selling the game.

"Minus the ROM" is what screws up the collectors. Everyone can get a cart shell and PCB from a cheap donor and print a high quality label in the nearest shop (BTW, selling a label with Mario on it would probably be a no-no too), but programming a ROM and soldering it is past the capabilities of most collectors (they often lack the skill and/or the tools).

Note that I'm not saying I feel sorry for the collectors or anything like that, if they really want a cart and are not able to make one themselves they'll most likely pay the extra cash to have someone make it, I was just pointing out that providing a patch to turn the legal ROM into the questionable one doesn't solve the problem of not being able to sell a Mario homebrew.

Thanks for the discussion, guys! I think the victims here are anyone who wants to create original but respectfully similar games. I classify these kinds of games as tribute or homage.

Honestly I was fishing for what people consider appropriate to make a non infringing but clearly paying tribute to certain games. How would one pay tribute to, say, Super Pitfall without fear of C&D?

Is it really just a matter of imitating the game engine and replacing character names, sprites and music to something different? How different? Where is the line?

Super Pitfall? I don't think the developers of Spelunky got sued.

Does that mean they did it right or got lucky? There IS an NES game called Spelunker.

Spelunky also comes within inches of La Mulana
http://en.wikipedia.org/wiki/La-Mulana

Make an agreement with the copyright holder to do so.

Some companies like Nintendo or Square will never be interested in these kinds of things, but lots of companies might be willing to work with you if you make them the right offer. Take the recent Street Fighter X Mega Man for example.

If you are going to do it anyway, the other way to avoid a C&D is to develop it in private. At least that way you won't get a C&D until it's actually finished, so it has a chance to make its way out to the internet.

Or how about you just make your game but not base every single element of the game off of Super Pitfall? If you want to make a similar game it's completely legal to do so under normal circumstances. There is a difference between "inspired by" and "entirely based on". (Also, if you already made an offer to the copyright holder and were denied, you have an opportunity here to revise your game and release it on your own.)

This might not have been an option for Princess Rescue. I dunno how many people would be interested in that game if it weren't a piece-for-piece remake of SMB. Certainly there is a community that would care about a 2600 homebrew platformer like this, but that's far fewer people than would care about SMB ported to 2600.

I have some data points on that. I personally worked on a side scrolling platform game for the Atari 2600:
http://atariage.com/forums/topic/201771 ... cancelled/

Since August 2012 it's had 169 downloads. Make of that what you will

UPDATE: Actually, I think I just confused my point. For a niche market like "classic gaming" I'm not sure if 169 downloads is an indication of lack of interest or not.

Start by writing it in interpreted BASIC.

Could you explain this in greater detail? I'm not entirely acclimated to your humor.

Are you talking about using an interpreted language so that you can freely post the source instead of a finished product in cartridge?

Princess Rescue does not use a runtime engine by the way. It's all assembly (albeit a "canned" kernel). BASIC does not necessarily mean runtime interpreter.

Super Pitfall is one of the slowest NES games. Starting takes several seconds of black screen while it loads the level, and then I believe the game runs at less than 30 frames per second, topping even Rambo.

Since we're taking this off-topic anyway: why is this so? The main map was huge but I don't think a large area gets tracked for off screen activity. Does quality also explain the "feature" where the player may lose his grip on ladders? Is it actually a faulty game engine issue?

It's typical Micronics "quality".

Ikari Warriors is one of the slowest NES games. Starting takes several seconds of black screen while it loads the level, and the game likewise runs at less than 30 frames per second. Both Super Pitfall and Ikari Warriors were ghost-developed by Micronics according to Wikipedia.

But if you make it as different from as other MMORPGs are from World of Warcraft, Actiblizzard probably won't have a problem with it.

So, the advice here (if I can extrapolate) is one can safely use game mechanics considered ubiquitous that apply to your tribute game - just differentiate your assets including game art, music, etc..

Or, is that too cautious? How close can the game mechanics get before they become antsy?

The answer to your question is really quite easy: retain legal counsel who has familiarity with intellectual property and copyright law. I cannot stress this enough. If you're asking these kinds of "what if?" questions, expecting a black-and-white answer (at least in the United States), there rarely is one. There is no definition of what's "too close" to existing works -- this is why you see things like borderline frivolous lawsuits between small and large companies (and sometimes between individuals).

Hence, talk with an attorney if you want actual/factual/concrete answers. None of us here are lawyers.

I was looking for a developers perspective on making games that pay tribute: What their process of creation is. Spelunky is proof it can be done properly and with great artistry.

Specific text, characters, art, and music, and other things of this nature are very copyrightable, If you make a direct copy of any of those things, the case for copyright infringement is very clear. If it's new art but clearly based on someone's old property, it is less clear, but legal cases often argue about whether the borrowed material is "substantial" enough to be copyright infringement.

Gameplay itself is usually considered too utilitarian to fall under copyright. (There have been exceptions, but in general it remains true.) It is very normal in game design (professional or otherwise) to borrow gameplay mechanics freely from other games. The thing about this is most games are borrowing from many sources, and the complex interaction of elements makes the combination distinct from other games. On the other hand, if you start lifting every single mechanic from one particular game, copy their implementation exactly, etc. it starts to look a lot more like infringement (and it gets very, very grey here).

There are many, many cases where a game is copied very closely, but the art/music is all new, with no legal repercussions for the clonist. I'd go as far as to say that this is rather the norm in the industry. Clones like this have always been quite abundant. There are several notable cases where they have been sued successfully, but I don't think it happens often.


What about Spelunky seems at all suspect to you? The whole exploring-caves-in-a-pith-hat motif is scènes à faire, I'd say, so I don't think the art/music deserves much scrutiny (though the golden idol I'm sure is directly based on the one in Raiders of the Lost Ark). The basic mechanics of gameplay are all well established as well, I can't see anything that looks like it's borrowed from somewhere in particular here. The details of the gameplay get rather unique when you start looking at how the particular items/enemies/level-generation all works together in this game.

As koitsu pointed out, we're none of us lawyers. I'm not giving legal advice. At the same time, though, I doubt there's much an uninvolved lawyer could tell us about this case that isn't already clear.

You should consult a lawyer when you actually have some undertaking planned that you need to understand the legality of. You should also definitely have a lawyer if you're starting a company or making a large financial commitment, etc. but slobu isn't really asking for legal advice in this thread; I think he just wants to know the lay of the land, and I don't think that requires a legal professional.

If you want to make a game that does not infringe on copyrights, this is generally very easy to do. You hardly need a lawyer's advice to proceed with that. Even if you've already made a very close clone of something, unless your clone depends on usurping the identity of the thing it's cloning (which Princess Rescue arguably does), it's relatively easy to change enough to make it legal once you realize you can't use it.