NOW LIVE! Today's the day you meet your new best friend. You don’t have to leave Wolfy behind... In 'Pets & Sidekicks' your companions level up with you!

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Message: <blockquote data-quote="Steve Conan Trustrum" data-source="post: 7674453" data-attributes="member: 1620">Here's where I actually think Don runs into some major trouble with this particular product, putting aside future issues with "fan" original works applying for the ENnies. There is a very big difference between Average Joe Gamer putting together content on a website or in a downloadable text, Word, or PDF having never worked in the industry and someone with 20 years of professional experience doing so. The grey area Don's professional experience brings into the mix in this regard is one of the things EA/Bioware could have very easily used against him in a suit regarding the unapproved use of their IP. If people are legitimately asking "how can we not call this professional?" the (he believed) safe harbour Don was trying to operate from regarding this work is clearly not so safe as he thought.Keep in mind these examples are loss leaders to draw an audience in to buying for-profit products. This is, again, not a comparison that would work in Don's favour if the IP owners went after him. Indeed, given Don's status as a long-standing industry professional, the argument could be made that the "product" this freebie was serving as a loss leader for was Don himself. It could be illustrated in a suit that Don's skills as an industry professional were highlighted in such a way by the work itself and by his inclusion in an awards process dominated by professional, for-profit products that he did indeed commercialize this free game by turning it into promotional material for him, as a game creator.Ideas cannot be protected by copyright or trademarks, and that includes game rules. How those ideas are presented, however, is where trademarks and copyrights come in. When a work includes those copyrights and trademarks -- images, names, setting details, and the like -- without permission, that goes beyond merely using ideas. It's not QUITE the same, but they can very easily be tied together when one also happens to be a professional in the industry the "fan" material was made for. And, based on how Don's work was presented to the public, it would be an incredibly easy argument to make. He didn't help himself by hosting the game on a website for which he's registered a domain that includes the IP owner's trademark. It also didn't help that he entered his work into multiple awards processes dominated by for-profit peers, quite literally releasing and promoting in his work in competition with for-profit equivalents. This fact makes it pretty difficult for him to argue any case for Fair Use protection, and the fact he's included images, trademarks, and other copyrights he admits he doesn't own and are immediately recognizable and associated with the video game means any hope of claiming his work is not derivative, as defined by copyright law, is out the window.</blockquote>

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