The title sounds like an oxymoron, but I have seen this question pop up numerous times. Someone wants to make their own version of another game, or some part of that game, for strictly home use. Is it legal under copyright law, though?
As with everything on this site, don’t take what I say on the blog as legal advice. If you’re going to do something that you think could be an infringement, get a lawyer to check it out first.
Unfortunately, most lawyers aren’t going to give legal advice for free.
The short answer:
My short answer to the question posed above is that making your own version of a game for home use is very likely a copyright infringement. However, it could possibly fall under fair use, particularly if the amount taken is very small and there use is strictly non-commercial.
The longer answer:
There are two major components of copyright infringement, in a case like this.There are two major components of copyright infringement, in a case like this.
First, there has to be an actual infringement of someone else’s copyright. Second, the copyright holder has to know about the infringement in order to bring a lawsuit.
Generally, entities that aren’t the copyright holder don’t have standing to sue on their behalf (though there are exceptions, such as licensees).
If you’re copying expressive parts of an original work of authorship, you are infringing. Copyright gives that original author EXCLUSIVE rights to duplicate and distribute those original works. There’s also the idea/expression dichotomy to consider.
There’s fair use, which I won’t tackle in this post, but it may apply. See my posts on the subject for more info.
The second component of an infringement lawsuit is, as I said, the author has to know that their work has been infringed.
So what’s the takeaway? Are you saying it’s okay to infringe copyright?
It is NOT legal nor is it okay to infringe someone else’s copyright, unless it falls under fair use.Not at all. It is NOT legal nor is it okay to infringe someone else’s copyright, unless it falls under fair use.
I’m simply saying that, if you were to do it and just play your version of the game at home, no one is the wiser. It’s a weird grey area, it seems (kind of a “if a tree falls in the woods, does it make a sound” situation).
As a lawyer and an entrepreneur, I would say you should spend your time creating something new and not infringing on the rights of others. The investment is well worth it.
However, what’s the danger in making something for your own entertainment and not distributing it IN ANY WAY? Probably small, though there is always that risk. And that risk is one that could end up costing you a bunch of money.
Don’t do it.