Can I legally (but without license) sell merchandise with text and images based on a video game? I am setting up an online shop (or, say, a table/kiosk at conventions) to sell merchandise like t-shirts, mugs, etc, and I want to have merchandise with text and images either from or based on popular video game franchises. I would not be using the game logo or title of the game itself, but I would want to use specific images from inside the game (or the silhouette/likeness/"representing symbol" of characters in the game). For example, a mug with a catch-phrase and logo from Mass Effect that says "I should go..." and "get a refill" on opposite sides with the Paragon/Renegade/Paragade logo on it. As another example, maybe a headset with the Zelda franchise's Navi on the earmuffs and "Hey! Listen!" printed across the band. However I highly doubt I would be able to obtain a "merchandising license", or even get any form of response from a company like EA/BioWare or Nintendo if I inquire. Am I opening myself up to possible lawsuits? Assuming yes, or that I would receive a "cease and desist" (because even on shaky legal ground I have no doubt a company would toss one at someone to hope they just complied), if I were sued (and leaving competency out of it) is there any sort of legal defense? Clearly I have zero knowledge of parody/fair use/trademark/copyright (other than that the concepts exist), and I cannot afford a lawyer... so I'm sorry if this has been answered here before. I've found this question and these ones (could this one even apply in any way? I dunno, that's why I'm here), but I'm hoping my case is different enough to not get downvoted into oblivion as I am not saying "I want to sell things that say 'Overwatch' and use the trademarked logo" and I don't know if using the content in this manner constitutes satirical/parody purposes of any kind. Alternatively, can I make any kind of promotional material (a poster, a video, take free pictures of people and digitally insert images, a free phone app) with likeness/symbols/images from their favourite video games? i.e. is there a significant difference between this and directly monetizing? Sorry again. I anticipate the first comment being "get a lawyer" or "that's illegal", but any kind of elaboration would be amazing. NOTE: I somehow missed the "Law Stack Exchange is for educational purposes only and is not a substitute for individualized advice from a qualified legal practitioner" part until after clicking post, but if anyone is still able to advise me (educationally, of course) I would suuuuuuuper appreciate it.
Short Answer No, you may not do this legally without permission in the form of a license from the owners of this intellectual property. Your video game based merch business plan is a horrible, horrible idea. There is no reasonable way that you could have known just how horribly awful and bad an idea this was without talking to someone familiar with the law. So, I'm not saying that this was a stupid or unreasonable question. But, now, you know. And, you should run away from this idea as fast as you can. Long Answer What you are proposing to do is blatant infringement of copyright (and trademarks) through the creation of derviative works, on a systematic basis, for profit, without permission, in a manner that does not constitute a parody or satire or any form of fair use. This kind of economic activity is precisely what copyright and trademark laws are designed to prevent. The case against you for liability could only get more clear if you were selling pirated copies of the game itself. You would have no legal defenses (other than statute of limitations if they waited to many years to sue you, which they almost certainly would not). You would be liable for statutory damages of up to many thousands of dollars per infringing item and the attorneys' fees the intellectual property owners incurred to sue you. The owners of the games could probably get a court order to destroy all of your merchandise, and a restraining order and injunction to force you to immediately shut down your business at any time. They could obtain all of those remedies without sending you a cease and desist letter before suing you. The moderately likely worst case scenario economic liability that you would face would be on the order of 100 times the amount of profits you could hope to make in a best case scenario, and the likelihood that you would incur some significant civil liability is on the order of 85%-90% (with almost of of the little or no civil liability percentage attributed to scenarios in which the company doesn't notice that you are infringing upon its intellectual property rights). Also, the more profitable you are and the higher the volume of goods you sell, the more likely you are to be sued. The liability risk to profit ratio grows with each additional dollar of profit you make. There is a good chance (perhaps 65%-75%) that they could establish that your violation was willful and wanton in these circumstances, which would also prevent you from discharging any part of the massive judgment against you in bankruptcy. So, there is a better than 50% chance that you'd be stuck with an intellectual property rights infringement debt, which could easily run into the high hundreds of thousand or even many millions of dollars, plus post-judgment interest at a rate similar to the market rate for high risk junk bonds, for the rest of your life. In terms of the economic harm involved to you, this would be almost as bad as having all of your property seized and then being sold into slavery for the rest of your life, if a coin toss bet comes up tails, but you get to keep the coin if it comes up heads. A settlement in which you turned over every penny you ever made in the venture, destroyed all of your products, shut down the business and paid them an additional low five figure amount in lieu of penalties and attorneys' fees would be a very generous offer. You would also face a real risk (perhaps 10%-15%) of some low level felony criminal liability (perhaps several years in prison). This is a business plan that is so toxic with immense, near certain liability risks of the worst possible kind that you should put on gloves before picking it up and tossing it into your nearest available fireplace or campfire. This business plan poses more liability risk to you than opening up a nightclub, bribing your contractors and code inspectors to ignore all fire and electrical codes, painting the walls with turpentine, padlocking all of the exit doors from the outside, changing a $1 cover and selling booze at cost to get huge crowds, and then booking bands with lots of fireworks in their stage shows on a nightly basis. (Yes, I really had a client who was stupid enough to come up with this business plan until I talked him out of it.) From a civil liability perspective, you would have less exposure to economic liability if you started a business that involved abducting random cats and dogs and goats off the street and charging customers to forcibly rape and then mutilate them, while filming it for distribution on the Internet with your real name and fingerprints in a watermark on every image and close ups of the animals collar tags and the goats' brands. The likelihood of criminal liability would be quite a bit greater (perhaps 60%-80%), however, even though the punishment if you were convicted of felonies for the bestiality business would be similar to the punishment for a conviction for copyright and trademark infringement. (Thankfully, I have yet to see a client try to implement this business plan.) Go hire someone to secure a license from the intellectual property owner for you (perhaps an IP lawyer or an agent or broker), or forget about it. This is an industry where you absolutely must be legitimate, and you have to go big or go home. The economies of scale are simply too immense to ignore. If your anticipated gross sales aren't at least $500,000 a year or so, you probably shouldn't even consider doing it whether it is legal or not. A license, if you could get it, would probably cost $6,000 to $12,000 in professional fees to negotiate (if you could accomplish this feat at all), perhaps a similar amount for an upfront fee to the intellectual property holder, and probably 10%-35% of your profits on an ongoing basis. This is because the market rate of licenses of this kind are geared towards what large scale distributors selling wholesale to Wal-Marts, department stores, and national mall chains could bear (I have some clients that happily pay these kinds of license fees so they can sell branded products, manufactured in China and then imported, on a high volume national basis.) The license fees would be a huge bargain by comparison to your economic exposure to infringement liability. But, if even the licensing fees (if you could negotiate a deal to pay them) are too expensive, then, this business plan doesn't make economic sense even with permission in the form of a license from the intellectual property owner. In that case, you should instead go into the lemonade stand business or buy a food truck, or become an Uber driver, or open a coffee shop or a liquor store, or something like that, with less liability risk and a more proven business model. If you must make video game merch without permission, do it in a back alley of a small town in rural Mexico on a cash only basis (where lots of people do stuff like this without getting caught), rather than an online store, where any bored paralegal or network manager in the video game company's law firm can find you at a moment's notice and might win a promotion or a raise or a bonus for doing so.
Marks are to denominate the origin of goods. Nintendo built Gameboys for decades. Some GameBoys have aftermarket parts like the NAKI Action Light, a peripheral never made by Nintendo but was nothing but a light and a 1.5 magnification lens. It was advertised as &quot;Fitting a Game Boy TM&quot; and didn't use Nintendo marks. That is nominative use and allowed. Then, Nintendo actually had stocks of spare parts that ended on the open market by now. those are genuine Nintendo parts, made for Nintendo, with the marks on it. Those are proper marks. Some people bought up tons of old Game Boys and took them apart for spares. Those are still genuine parts, even if used, and the mark is proper. Nintendo didn't make all the parts for Gameboy themselves. They had contracted OEMs (original equipment manufacturers) that created parts for construction of the toys. These were in part branded and marked in the OEM factory still, the OEMs had a license to make and mark parts. Parts produced till the lapse of the license would be most likely proper as for most intents and purposes Nintendo did endorse the manufacturing in this fashion. However after the licensee lapsed or if it doesn't contain a &quot;put the markings on it&quot; clause, marking would not be allowed (anymore). Finally, there are spare parts that were just made to Nintendo specs, that are not originating with Nintendo, and are marked with Nintendo marks. Such copy parts infringe on the Trademark of Nintendo. There is legal space in the aftermarket spare part market: Parts that are to specs but not marked with the marks denominating the origin. Those can be advertised akin to the NAKI Action Light &quot;fitting a Game Boy TM&quot; without infringing on marks.
Yes The relevant legal concepts are copyright, contract law and the Computer Fraud and Abuse Act. You are liable to be sued by the people affected for damages and/or be prosecuted by the government for the felony under either or both laws. Let's start here: "I bought a game". No, you didn't; you bought a licence to use the software in accordance with the terms of service (licence) that you freely agreed to. All modern ToS will not allow you to reverse engineer the software. If you breach those terms of service then you have broken a contract - that is what allows them to sue you. They will no doubt argue that the prevalence of cheat routines developed by people like you reduce the number of people willing to play the game - say 100,000 users x $10/month * 12 months = $12,000,000. They will also ask the court to impose punitive damages to discourage this sort of thing. Which brings us to the copyright violation. You are allowed to copy their software provided you comply with the ToS. But you didn't. Therefore you are in breach of the Copyright Act and subject to additional civil and criminal sanctions. Finally, your "cheats" access their servers in a way that the ToS doesn't authorize. This puts you in breach of the CFFA - breaking this carries serious jail time penalties. Not to mention that in the US, a criminal conviction will preclude you from many jobs, including, naturally, any with access to company computer systems. Putting aside the illegalities, cheats are unethical and ruin the game experience for hundreds of thousands of people who don't use cheats. You are a criminal - stop being one!
As far as copyright goes... Pixabay: Yes (with minor exceptions) Pixabay's license is quite broad, and allows for unattributed commercial use with a small number of exceptions. You can't &quot;use images with identifiable brands to create a misleading association with a product or service&quot; or &quot;portray identifiable people in a bad light or in a way that is offensive,&quot; but otherwise it would allow for use in a video (there are other exceptions, but they wouldn't really apply to such use). Flickr: It depends on the license By default, images are not licensed for additional use other than viewing on Flickr. However, users are free to license their images as they wish, and Flickr explicitly supports various Creative Commons Licenses, many (but not all—particularly the NC licenses) of which would support such commercial use. Depending on the license, additional requirements, such as providing attribution, may apply. Note that there are non-copyright concerns that might come up in specific situations, such as trademarks (I mentioned one potential issue in my explanation of the Pixabay license) or model releases. Another answer to this question has some good information on these concerns.
There is a general belief that a term being trademarked means that it's illegal to use the term without permission from the trademark holder, but that is false. It is illegal only if it is done in a manner that suggests endorsement by the trademark holder. For instance, selling a football as a "Super Bowl football" would be trademark infringement, as it implies NFL involvement in the production of the football. Simply talking about the Super Bowl, such as saying "Our construction company built the stadium the Super Bowl is being played in" is not trademark infringement. Simply using a trademarked term to discuss the thing it refers to, without implying endorsement, is known as "nominative use". However, even if one would be on solid legal footings and could win a lawsuit on the basis of nominative use, one might avoid using a trademark to avoid the hassle of being sued.
Rather than saying "for Project®" which might fairly be interpreted to indicate an affiliation with Microsoft, you ought to say something like "intended to be compatible with Project® (not affiliated with or endorsed by Microsoft)." can you imagine a worse scenario than Microsoft sending a Cease and Desist notice? In that case, I can imagine re-branding to "MYBRAND for E-Mail" as the logo/name and a textual reference to "The [MyBrand for E-Mail] Add-In for Microsoft® Outlook®.". What is the worst case scenario? You could be sued by Microsoft for trademark infringement under the Lanham Act and if you lost, forced to change your product name and to destroy all existing inventory, forced to disgorge all profits you have ever made from selling your product ever, forced to pay their attorneys' fees and costs (which won't be cheap) in addition to your own legal team, have your products seized and destroyed when imported by customs agents follow an ex parte court hearing (i.e. one you had no notice of) secretly brought by Microsoft, and forced to pay punitive damages equal to double the profits you made in addition to the profits themselves. You might not even be able to discharge the judgment against you by going bankrupt and the punitive damages would probably not be tax deductible. Microsoft has every right to do this even if you fully comply with their cease and desist letter. A criminal trademark prosecution would be unlikely in this fact pattern.
Imagine if the answer was a simple yes: adding a disclaimer was enough to exempt you from any and all copyright and trademark law suits. If that was the case, there would be no point in copyright or trademark law at all, because everyone could just include this disclaimer and never be sued. That doesn't mean every disclaimer is useless, but it does mean that copying and pasting some vague wording without understanding what it means is very unlikely to help you very much. The example you give is a good example of doing just that; the terms it uses are real, but they've clearly been thrown together without real understanding: Copyright is the right to control and profit from a creative work. This is relevant because images of Pokemon characters created for games, manga, etc are copyrighted by their creator. Trademarks are words, symbols, images, etc exclusively associated with a particular company or product. Trademark law aims, among other things, to avoid customers thinking they are getting an official product when they are not. &quot;Nintendo&quot; and &quot;Pokemon&quot; are both themselves trademarks. They are also the names of different companies. My limited understanding is that &quot;The Pokemon Company&quot; will be the owner of all the copyrights and trademarks related to those games, manga, etc. Naming them is a way of showing that you have researched this and understood their rights. &quot;This app is not affiliated , endorsed or supported by Nintendo in any way&quot;. This is a disclaimer on the trademarks. Whether this is sufficient to protect against claims of counterfeiting depends on how prominent it is compared to other branding - you need to make it obvious to users that the product is unofficial, not bury this in small-print for the lawyers to find. &quot;also some images used in this app are ... supported under fair use&quot; - fair use is a US legal concept which allows copyrighted works to be used in certain specifically limited ways. Saying your use is covered does not make it true, you need to actually understand what provisions of the law allow your specific use. &quot;no copyright infringement intended&quot; This is a fluffy apology that has no legal standing. A more useful statement might be &quot;every care has been taken to adhere to copyright and trademark law, if you notice a violation please contact X&quot;; but you're still relying on goodwill, and it won't stop someone sending the lawyers in if they decide to. Which brings us back to the real question: The apps mentioned before are in the store since 2015 and they haven't been removed yet. The real reason for this has nothing to do with the poorly-written disclaimers, it is that Nintendo / Pokemon co haven't bothered. If an app is directly competing with an official app, or receiving a lot of attention (even if no money), the lawyers will descend; if it's a buggy image gallery with a dozen downloads, they might decide they have better things to do. If they do notice, they might just get Apple and Google to de-list the app, but not spend the time and money pursuing a legal case. On the other hand, at any time they might decide they need to tighten up control of their intellectual property, and make an example of a few authors picked at random. The only way to avoid that is to actually avoid violating their rights, rather than just saying so in a disclaimer.
This kind of quotation, for commentary, criticism, or reference, is generally allowed without obtaining permission. In the US, this falls under fair use (see 17 USC 107. In the UK and most commonwealth countries, it falls under fair dealing. In other countries there are various exceptions to copyright that will probably cover this. Even answers that do not directly quote the rule books often use information from those rulebooks to write an answer. Facts and ideas are never protected by copyright, so this is not going to be an issue. See 17 USC 102(b), which provides: (b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. As a comment by user Trish reminds, game rules are facts and are not protected, although their exact wording may be.