Hi there!

I am in a bit of a legal/moral dilemma: I recently released a beta version of my first android game and the responses are really positive (both comments and ratings, number of downloads: meh, but that's another story). While that makes me really happy, I "kinda" based my game a bit too much on an existing freeware game: the incredible Star Guard. I didn't intent to blatantly rip off Star Guard and profit from another indie developer's efforts but it seems like I am. How it happened:
About 5 months ago, I decided to look into Android game programming as I was intrigued by the new possibilities the platform offered (I also tried out iPhone development but without an actual iPhone, it wasn't much fun). I scanned the market to see what I would like to play on a smartphone but wasn't present yet. I tried the available jump'n'run games and found none of them particularly enjoyable. At about the same time, I discovered Star Guard and found it absolutely fantastic. So I decided: take the basic game-play from Star Guard and try to port it to the android platform. This started as a learning project to get me familiarized with the SDK, the development, the different phone models and so on. I had so much fun doing it that about 3 months later, I had a first playable and fun version.

I was like "Cool, but what do I do with it?". In the course of the next weeks, I tried to contact the author of Star Guard. I wrote several E-mails and I asked if I was allowed to release it to the public. Unfortunately, he didn't respond at all.

Still having fun working on my "port", I continued and the urge to release it on the android market rose. Finally, after googling things like "illegal freeware game clone", I decided what the hell and released it as a freeware game. In my mind, a couple of things can happen:

• The original author doesn't care

• He does care but is fine with it but decided not to respond for whatever reason

• He deliberately didn't respond to sue me after I release it... (I doubt that)

• He didn't read any of my mails (doesn't check his account anymore, spam-filter, ...

• 

Maybe somebody with a little legal background can help me here: what's the worst I have to expect? Cease and desist? Or worse? It really wasn't my plan to rip off someone...

I made no money releasing the game. I would like to if it's possible but before this issue isn't resolved, I can't.

Anyway, if you like, here is the link to my game (or search for "star warrior" in the market). You will need an Android phone of course.

Thanks for your input!

Looks like you stole his art. That's not very nice, and could put you in a bad position. Why not make your own?

As far as I have heard (which doesn't mean its true), the rules to a game cannot be copyrighted, so in that regard you're fine.

I tried installing through your link, as searching for "Star warrior" on the Market returned no results, but I was told that the item was not compatible with my device.

The rule that I have heard is basically that he can't own the idea unless he patents it (which is highly unlikely as his game is probably not that original either). The copyright owner for the art, sound, and writing does own those works though and can control their use so if you're using any of that then you're definitely walking on thin ice (depending on the license that it was distributed with, of course). Names of things are generally also not owned unless somebody trademarks them, which is also somewhat unlikely with a freeware game.

In short, if you're using his assets then you're already probably in some trouble for distributing them without his permission (unless the license for them permits you to do so). Especially if you distributed them through Android Marketplace or any other third party (without express permission to distribute your game in its entirety you probably breached their terms of service and such). Of course, if he doesn't actually care (or find out) then you aren't really in trouble, but there's always a chance that he could. If you can you should probably replace any such assets and send a critical update downstream (if possible). That probably won't relieve you of legal trouble, but it might reduce the odds of you getting caught. Then again, users will probably complain if the media suddenly decreases in quality. In any case, if you didn't gain monetarily from the material then there's probably little actual harm that will come to you. At most I expect people would just ask you to take the product down and stop distributing it with violated copyright.

Of course, I'm no lawyer, so you should consult with an attorney before taking advice from us. It doesn't matter what we believe. What matters is what the copyright/trademark/patent owner and his legal council believes, and what the judge decides upon. You might make an even stronger effort now to contact the original author to get clearance from him so it's in the clear.

I wouldn't expect to make money off of it. I highly doubt that a freeware publisher will be willing to let you make a profit on his work. He might agree to license it to you for a fee though. If you swap out any actually copied contents then you should no longer be exploiting his work and should be free to sell it. Though you have to ask yourself if it's really moral, even if it is legal.

Agreed about the legal issues mentioned so far.

As far as the game goes, I had a lot of trouble shooting while in mid air; the presses just would not register. Also my device uses soft buttons so the right 20 pixels or so (approx.) are unusable. The 'J' label is slightly cut off, though both S/J actions still work, seemingly offset to the left a bit. I don't know how you're supposed to detect the usable screen space; apparently many games have a problem with this.

Why not redo any content you copied, and release an update to the game? Problem solved.

And just in case it wasn't made clear, freeware doesn't mean you have any right to copy the content. It means you can play it for free. That's it. Freeware is very different from a license like GPL or something.

That's not technically true. If the copyrighted material was wrongly distributed then redistributing replacement material doesn't necessarily undo the distribution of the copyrighted material. I'm sure it's still possible for the original copyright owner to make a case against you. Besides, you can't actually force data onto somebody's device (nor off of it). The carrier/distributor might try to force it, but that can always be hacked, if not just denied service. Especially if the updated content isn't as high quality as the originally distributed content (if the OP was capable of that then he probably would have had it done in the first place). Users are going to complain and warn others not to update. If the carrier/platform/device/OS insists upon updates then it will encourage hackers to hack the system. For all intents and purposes once the damage is done it's done. You just have to hope that those with rights in the matter don't mind.

Sorry, what I meant by "problem solved" is that the OP's guilt will be solved. Yeah it doesn't solve past legal issues, but I don't think anyone here thinks there's a real problem there. Realistically nothing is going to happen. Worse case, C&D. That's about it (totally pulling this out of my arse ).

Game designs cannot be patented either. (Note that while there are a few game design related patents out there, I don't think they're all valid and they're more specific than this. You certainly can't patent an entire game.)

Now, looking at assets... those are very simple assets. It's literally tiny 1-bit dudes in various colors. Which is why I think it's a bloody shame, and definitely illegal and even assholish, that you had to rip specific sprites like that. Just make your own. It's not hard to be consistent with that style if you really want it, but what you're doing right now is not kosher.

Freeware can mean anything between "I'm releasing this into the public domain" and a rather restrictive licence such as the stricter Creative Commons licences.

Thanks for your input!

Looks like my concerns have come true. So I will have to roll an update with different graphics... Not easy for me as a non-artist, but I'll try.
But how different is different? As X-G pointed out, they are "simple" 1-bit graphics. If I stick to this style, I might end up with something very similar as the possibilities are not vast. I did draw the current graphics, I just took the original ones as a reference (I know that doesn't make it more legal). Do I have to go a different style as well?

As for having problems playing the game:

Your device doesn't meet the necessary requirements. The market only shows items available to your phone, sorry.

That is odd! I've never experienced anything like this. Could you please tell me your phone model and your android version? Does your phone support multi-touch? As for shooting while jumping, that a limitation of the touchscreen. If you try to press both 'J' and 'S' at the same time with the thumb, it will recognize it as only one press. I can't change that.

edit:
Not trying to defend myself by pointing at others, but there are numerous (bad) Super Mario games on the market that use the original graphics. It seems like android doesn't do anything about it and nobody seems to care. Are these graphics public domain already? I am talking about games like this. Shouldn't the authors of those game be in even more trouble than I am?

As long as it's not a 'derivative work', you are good. So if you draw sprites from scratch and don't use the original ones for reference, you aren't technically violating copyright. However, you have seen the original ones, and recreating them from memory would probably qualify as 'derivative', and if your sprites resemble the original ones, it's going to be hard for you to argue that you did not use your knowledge of the original game to make these sprites.
Anyway, since have committed copyright infringement already, the smart thing to do is tread lightly; I'd make sure the sprites look sufficiently different to avoid any confusion.

With copyright, it always depends on the owner of the rights. If they don't act, nobody else will.

Yeah, my phone is a very entry-level Android device.

I think it goes a bit beyond "reference" here:

{"name":"ss-2-320-480-160-1-7cf81aa8a22e603a083264860b97426546e0e6d7","src":"\/\/djungxnpq2nug.cloudfront.net\/image\/cache\/5\/6\/56656fd189884ec683e964a9f2759683.png","w":800,"h":480,"tn":"\/\/djungxnpq2nug.cloudfront.net\/image\/cache\/5\/6\/56656fd189884ec683e964a9f2759683"}

They most certainly should. What they're doing is clearly and certainly within the realm of the illegal.

Even my phone is not compatible.

I just rolled out an update with changed graphics. I did them from scratch and tried to be different but still keep the minimalist style. They are not as expressive as the original, but at least I avoid legal issues.

Hmm, it seems your phone doesn't have multitouch. And by multitouch I mean real multitouch, not just pinch-zoom only. Android 1.5 is only capable of a crippled version of multitouch that only works for special "gestures" like zooming. With Android 2.x, real multitouch became available... do you have Android 2.x?

I don't even have pinch zoom (and I do have 2.1)

My phone is Android 2.1 but has no multi-touch. My girlfriend's Sony Xperia is an Android 2.2 phone and it used to be multi-touch, but Sony removed it in an update for legal reasons.

I don't know about video games, but I do know that there are chess-variant games that are or were under a (US) patent, for instance Falcon Chess and formerly Gothic Chess. Quite how you can patent something as trivial as the rules of a chess-like game with a couple of (in the case of Gothic, well known) fairy pieces is beyond me, but apparently you can.
Don't know if those patents would hold up if challenged though.

Ran just fine on my HTC hero, I can see the graphics were updated, gameplay is the same. I would try to expand it a little more, sound effects would be great too. It is on the android platform and the character is green, you should make him an android Oh and the explosions need to be bigger with more particles, but then you are making it more of a clone of the original authors work.

There are a lot of patents that have snuck through the USPTO, but that doesn't mean those things are actually patentable. In short, those are errors and should never have been allowed to be patented. In Europe, the EPC specifically outlaws it, in fact:

Emphasis mine. In the United States, it's less clearcut, but the same sentiment is expressed:

Generally, rules for games have never been considered to have "useful" application. In short, the patents you referred to are most certainly invalid patents and would crumble if you poke them.

AFAIK, Android >= 2.x is just the software requirement for multitouch, the phone also needs to be capable hardware-wise.

Can we see screenshots of the new graphics?

Sure!

These are two new enemy designs and the player. They look much better animated. I'll see if I can create an animated gif...

{"name":"603433","src":"\/\/djungxnpq2nug.cloudfront.net\/image\/cache\/f\/7\/f7a373301a5455239ffd0d5e7d4cd4aa.png","w":273,"h":132,"tn":"\/\/djungxnpq2nug.cloudfront.net\/image\/cache\/f\/7\/f7a373301a5455239ffd0d5e7d4cd4aa"}

I created them in quite a rush but I am pretty pleased with how they turned out. The walking cycles still need some work though...

edit:
First animation:
603437
Second:
603438

Well I was reading this: http://forums.tigsource.com/index.php?topic=17029.0

and remembered your post... tan tan tan...

I can't stand to read threads on other forum software. Either way, it more or less shows you the other side of the story.

I already use Linux........

Linux is an operating system kernel, not forum software..................................

If you made the game, as long as you didn't directly copy any of it, it doesn't really matter. If you did, in fact, copy the graphics. Replace them immediately.

Alternatively, it costs money to sue someone. So you have to be worth it first (making significant money off of it) before it's worth the financial risk of suing you. Large businesses (as opposed to individuals) tend to sue people who copy their data because they have to. Because under US law (AFAIK) if you do not defend your intellectual property, you lose the rights to it.

Damn you got me!!.. Well actually I don't use Linux, I don't even know what linux is... well, now I know. I hope they are not trying to compete with Microsoft... Look what is happening with Macintosh... it's SMASHED SMASHED SMASHED!! all over the time, I can't imagine what it would do to Linux... Hahahahah

Microsoft FOREVER!!!

Please revise these sentence fragments with something that isn't blatantly wrong. I award you no points. May God have mercy on your soul.

Wrote. Quickly before; Heading out: door-

Just to make it clear: I did change the graphics and made them myself from scratch this time. And I also have new game play elements the original doesn't have like moving platforms, conveyor belts, boss monsters, ...

But yes, the issue with ripped graphics and whole games seems to be a hot topic on the (kinda new) mobile games market. The Apple store at least has a mechanism to keep the imposters out (review process). The Android Market lacks that and is hence filled with ripped graphics and whole games that just feast on popular franchises (like Super Mario).

Personally, it feels good to be on the good side again!