The Messy World of Fan Made Apps, Games and Copyright Issues


In the mobile app World, copyright issues are as divisive or as headache-inducing as fan creations. Whether it is a fan made app for a popular fantasy series, animated series, or a popular movie, these app creations almost instantly walk into a copyright mess that can be enough to make even the boldest attorney cringe.

Yet, fan made apps and fan art both remain popular and widely tolerated on the App Store.  As a matter of fact, you’ll find different kinds of games, even apps based on a popular movie, TV series, console games, even actors or celebrities.

But just recently, one of my ASO clients told me that FNAF team sent an email to Apple demanding him to remove his FNAF fan made an app from the App Store as he does not have the license to create a trivia game about their games. That same day also, he received an email from Daniel Lara to remove his Damn Daniel “AA” Game (a fan made game also), from the App Store, for the same reason.

Tough luck eh? These games were his bread and butter, and he does not earn that much from those apps. Anyway, we’re going to take a brief look at the issue and try to understand where we sit on the issue today.

What the Law Says

According to the law, the copyright holders have the right to distribute derivative works based on an original creation. This includes sequels and any other work that includes copyrightable elements from the original creation.

With that being said, fair use may protect some fan made creations from being an infringement, but that depends on the matter and is handled on a case-by-case basis, looking at the facts of the actual work. However, most fans made apps or creations, by their very nature, don’t parody or criticize the source material, which would provide a great deal of protection, nor are they highly transformative, meaning that they are less likely to win in the even that such a suit takes place.

Based on these facts, we can say that fan fiction, fan art, or fan made apps can be a trademark violation especially if it uses names and titles in a way that causes confusion as to whether they are official. Trademark disputes over these fan made creations are very rare, but still possible.

Yet, despite a relatively strong legal position, lawsuits over a fan made apps are extremely rare. This is especially odd considering that many of these copyright holders are the most common target of fan made creations are also among those most aggressive at stopping other infringement of their work.

So why has fan made apps thrived? The reason is actually fairly simple.

Speaking the Unspoken Rule

From a copyright holder point of view, fan made apps or art is usually not very harmful. They create works that are openly recognized to be non-canon to the story and are not replacements for the original.

In fact, these creators actually serve a valuable service to these copyright holders by providing a thriving app for fans to use, keeping them entertained and engage between official releases. In short, since fan made apps don’t take away sales of the original work, they are often seen as free advertising r promotion and a way to grow the brand without cost or effort.

The cost of going to war with fans or developers can be an issue. Being litigious with creators of fan made apps can be very costly, not just in terms of court costs, but in terms of backlash. No creator wants to sue their fans, especially when the fans aren’t earning revenue, and as such most creators will tolerate fan made apps and art under most circumstances.

But then again, why Daniel Lara or the FNAF team wanted to take down my client’s apps?

First, my client does to not profit that much from these apps. Yeah he run ads and one is a paid app to cover development costs, but most do not turn any profit. Second, he proclaimed that his work is unofficial and has no connection with the creators.

Anyway, I think there’s a problem with the system.

Though any unspoken and unsigned agreement can break down for a number of reasons, on matters of fan made apps or creations, there are typically two causes.

Aggressive Creators: Some creators, such as Daniel Lara (for example), has been very aggressive about shutting down my client’s fan made app.

Fan made app developers Who Cross Lines: I must admit that there are app developers out there who do not understand the copyright law who feel they have been given permission. They cross the lines and either try to sell copies of the works they create or otherwise commercially exploit them. There are some also who tries to claim the fan works to be original works, often by merely changing names around.

These are the cases that result in conflict between the original authors or creators and fan made app developers.

So How to Stay Safe?

If you’re interested in creating fan made apps, here are a few quick things I would say to do to make sure you don’t find yourself in a copyright or trademark conflict.

Check the Rules: Look for the rules of whatever you’re a fan of. Usually, they have communities which have guidelines and some authors have made public statements on the issue. Do some research before creating apps and uploading them on the App Store.

Make it Clearly Unofficial: Clearly state on your description that your app and your work is not an official app and is just a fan creation. Though it may not help with an actual trademark or copyright dispute, it shows good faith and encourages copyright holders to work with you.

Be Careful with Trademarks: Be mindful of trademark names, logos, images, etc. Make sure also that you are not leading others to think that your app is an official one. Again, make it clear that yours is just a fan creation.

Comply with Requests: Worse comes to worst, if the creator or an agent on their behalf makes a request of you, just obey it. If it’s a polite request, complying helps avoid a less-than-polite request later and builds a good rapport. If it is a stern one, then it is even more important to comply.

Bottom Line

Remember this: Fan fiction, fan made apps, and fan art are, usually, an infringement of the right of the copyright holder to prepare and license derivative works based on the original. This is almost without exception.

However, some copyright holders, for good reasons, tolerate this stuff and even encourage it, but this should not be taken as carte blanche to do what you want with the source material.  But then again, I still think that these creators who want to shut down my client’s fan made apps are really short sighted. For me, it reinforces their original creative work. I’ll provide an example. Would any fan buy a fan novel or fan painting of Final Fantasy without first buying every piece of official merchandise available? Most likely not. In fact, you need to be a huge fan of the original to enjoy the derivative work. These fan made apps extend the original’s market reach and cultural durability. It actually fuels sales and interest of the originally authorized work. Daniel Lara or FNAF would actually make more money in the long run and ensure their creation’s legacy by allowing their fans to share and create derivative works. After our death, our work and our legacy only live on in the hearts and minds of others. Those that have the largest cultural reach can theoretically live forever. These creative works and even individuals, who fail to win the hearts and minds of others disappear from History. So, if these protective artists were smart, they would instead set up a licensing fee for derivative works by fans. Why not just make a cut on every sale. Shutting down the source or punishing these people who love you is somewhat idiotic.


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