Is It Legal to Remake or Recreate Old Video Games?

As a passionate retro gamer and content creator, I often get asked about remaking or recreating older video games. Can you legally rebuild an old game from the ground up or do you risk legal troubles? What about fan games that emulate classics? It‘s a complex issue with no simple answers, but let‘s break down the key factors.

Copyright Law Usually Protects Creative Assets

The core ideas and mechanics behind games generally can‘t be protected by copyright. For example, no one owns platform jumping or first-person shooting as gameplay concepts.

However, the specific creative expression and assets used to implement mechanics are covered. The code, art, visual styles, music, storylines, and other content added to create the full experience are legally protected.

So if you directly reuse assets like artwork and sound effects without permission, the original developers or publishers can issue takedown notices or sue for copyright infringement damages.

There are exceptions, however. Games in the public domain have an expired or voided copyright, allowing free reuse of assets. But it can be extremely difficult to verify if a game qualifies as public domain.

Trademark Law Also Comes Into Play

Beyond copyright issues, you also risk running afoul of trademark protections if reusing iconic names, logos, catchphrases or other trademarked gaming assets.

For example, you couldn‘t title your project "Super Mario Bros. Remake" or integrate Mario‘s name, image and iconic red-blue color scheme without Nintendo‘s permission. Even using visual styles too similar to iconic gaming brands can prompt legal action.

Licensing Deals Open Remake Potential

Major publishers like Sega have started licensing their older games for approved remakes and spiritual successors. This legalizes reuse of IP and assets in exchange for a licensing deal.

For example, the makers of retro-inspired platformer Wonder Boy: The Dragon‘s Trap signed an agreement with Sega to legally recreate the 1989 Master System game.

These licensing deals usually involve revenue sharing and other stipulations granting exclusive remake rights. Independent developers generally can‘t afford high licensing costs to bigger publishers.

Fair Use Offers Limited Protection

U.S. fair use laws allow some reuse of copyrighted material without permission for purposes like education, commentary and parody. This offers minor protection for fan projects.

For example, a parody remake transforming Super Mario into a wildly different concept has some fair use leg to stand on. But straight remakes of games for commercial purposes violate the spirit of fair use.

The Wonder Boy remake channels the original‘s style under license from Sega

Safest Route: Recreation Over Reuse

Legally recreating an old game while avoiding copyright and trademark pitfalls takes effort but can be done. The key is to add your own creative spin without leaning too heavily on copying:

• Develop new assets – Design original art, code, music and other content rather than repurposing from the source material. Derivative works get less protection.
• Add new features – Don‘t just rehash the same experience. Build on foundations with new stories, abilities, areas and gameplay ideas not present before.
• Alter tone and style – Use visuals inspired by rather than copied from the original. Make your homage feel stylistically distinct.
• Pick a unique name – Don‘t use the original game‘s name. Opt for "In spirit of…" or other descriptors that show your remake isn‘t officially affiliated.

If tackling a large-scale remake it never hurts to consult an intellectual property lawyer. Fan project guidelines from companies also offer useful insight.

While I can‘t endorse ignoring IP rights, smart re-imaginings that celebrate classic games while asserting creative independence are increasingly embraced. Just don‘t rely on fair use as a legal shield.

Does this help explain the ins and outs of remaking older games? Let me know in the comments if you have any other questions!