Game On: Fan games are a constant source of legal drama

On playgrounds as a kid, whenever someone asked, “What do you want to be when you grow up?,” several children would invariably reply, “I want to make video games.” Of course they did – who wouldn’t want to have firsthand involvement in one of their favorite hobbies?

I have no idea whether any of these elementary school classmates went on to become involved in making games. I found that by the time I hit high school, my peers were already more skeptical of their ability to “make it” in the world doing what they love.

Many of us remained idealists, but it only takes a quick Google search to ascertain that game design is a complicated, specialized and highly selective field. There are certifications and classes, but there aren’t many other intermediate steps – you’re either making games or you’re not.

Internships exist, but they are always quickly inundated with a massive swath of applicants. Because of this, many game design enthusiasts choose to showcase their passion by creating their own indie games in their spare time – and many of them are fan games.

A fan game uses an existing intellectual property. The advantage of going this route is obvious – you don’t have to make something out of nothing, and it’s easier to get people hyped. The trouble is, of course, copyright laws.

Even if the hobbyist makes the fan game free, the IP owner is legally entitled to shut down projects featuring their characters and/or setting. Nintendo is particularly notorious for sending cease and desist letters, halting the development of “Another Metroid 2 Remake,” “Zelda 30 Tribute” and “Pokémon Uranium,” among many others.

It’s baffling to me that the company is so protective since they consistently churn out products of excellent quality, often sticking to established franchises in favor of creating new ones. These titles almost never go on sale – it’s still difficult to buy “Super Mario Odyssey” or “The Legend of Zelda: Breath of the Wild,” two 2017 games, for anything less than $60.

If they can price their games like that and still turn a profit, I’m unsure why the company is so afraid of allowing a few fan games to exist to be distributed for free on the internet – “fandoms” only grow more enthusiastic when allowed to rally around their own content, too.

But I have my biases – I come to this conclusion as a Sega fan. Unlike Nintendo, they craft new IPs all the time and leave many of their classic series in the past. This gives fans even more incentive to revisit these old franchises themselves.

2017’s “Sonic Mania” began as a fan tribute to retro Sonic games, but it was so good that Sega cut the indie developers a deal and published the game officially. 2020’s “Streets of Rage 4” was made with zero involvement from Sega, but they were given the greenlight to keep developing if they had Sega publish it. It became the first “Streets of Rage” game released in 26 years.

But it’s a slippery slope – as long as there are no clear guidelines for fan games, people will push things further. The most recent case is “Sonic Omens,” an ambitious 3D fan game available for free – unless you donate to the developers on Patreon, wink, wink. Donating is optional, but it’s not difficult to see how asking for donations at all could ruffle feathers at Sega.

There’s been enough drama over “Sonic Omens” that Katie “MiniKitty,” one of the social media and influencer managers for Sega tweeted on May 10: “So long as no profit is involved, there is usually no issue with y’all using our blue boy to hone your art and dev skills – but, for legal reasons, I can’t promise all content is OK.”

The statement is somewhat reassuring but clarifies little about “how far is too far.” Where’s the boundary line? The publisher backed “Streets of Rage 4” but in years prior rejected Bomber Games’ offer to collaborate on “Streets of Rage Remake,” eventually hitting those hobbyists with a cease and desist.

Unfortunately, IP holders are unlikely to ever publish formal guidelines on which fan games are permissible and which aren’t. They hold all the power under copyright law, but if a fan game were ever made to follow all guidelines but was problematic in some unforeseen way, it could become a potential legal battle instead of a quick, one-sided cease and desist notice.

The silver lining is that enthusiasm for indie game development is at an all-time high thanks to how easy it is for anyone to upload their game to the internet. It costs just $100 to publish a game to Steam, the largest and most ubiquitous digital PC game storefront.

While fan games can’t be monetized, even the most blatant of spiritual successors can be, such as the “Castlevania”-inspired “Bloodstained: Ritual of the Night” or “Sonic” clone “Freedom Planet.” In the years to come, we can expect more and more spiritual successors to rise up and even take the place of many aging franchises.

Riordan Zentler can be reached at riordanzentler @gmail.com.