> a Final Fight book might be riskier than, say, a general look at '80s arcade games, or 2D beat-em-ups.
The risk always depends most on how aggressive and/or unreasonable a rights holder chooses to be. A hyper-aggressive litigant with literally zero grounds to sue can still require tens of thousands of dollars and many months to get dismissed if they choose to be maximally obstructive. A legit company in the business of monetizing their IP hopefully won't be quite that bad - but they may not be too far behind given their business focus.
However, a book specifically on their trademark does have the possibility of additional complication from arguably "trading on the name brand" vs just mentioning the brand. If the "Final Fight" logo and game artwork is featured prominently on the cover, it makes it easy for them to claim "the book used our trademark to sell itself".
Of course, the doesn't mean the fair use safe harbor doesn't apply but it does make it more complicated and that increases risk. That's why some books go out of their way not to use trademarked names, logos or artwork on the cover. Like a book that could have been called "Inside Disney" instead being called "Inside the House of Mouse" or similar.
Hopefully, he's verified that whoever sent him the letter actually is the party that owns the rights (because griefer trolls will troll). But to answer your question, generally, it should be possible to write a book about a series of games because fair use is a thing. The key is ensuring you stay on the right side of fair use and that requires paying an IP lawyer with fair use experience to review everything. That's expensive and, at the end of the day, your lawyer's belief that you're not infringing won't stop a rights holder from suing you.
It may not even be that the rights holder is intentionally being mean. A lot of companies have lawyers on retainer and those lawyers run regular automated searches on trademarks their client owns. If they get any hits, by default they advise their client that the client should pay them to send a letter to notify the other party that they own the trademark and have the right to enforce it. Sending a bunch of these letters helps the law firm use up the client's retainer (basically an advance deposit). The firm will also warn the client that not defending their trademarks can potentially lead to weakening or nullifying the trademark. While technically correct, it probably wouldn't apply in a lot of situations but billable hours are billable hours and template letters are easy money.
Ultimately, if you're collecting money for anything that incorporates more than a tiny smidge some big company's trademarked IP, you're going to have legal exposure if they choose to sue. You may win in court but it'll cost well over $100K and take a few years (at best). Many people wonder "Why wouldn't a company just ask for a percentage royalty and make a little money if it sells well?" Sadly, there are a bunch of reasons that mostly fall under the heading of "Why big companies can't afford to do little things." If they grant a license to a hobby project, they can be named as a co-defendant if the project infringes some other company's rights. That means they need to review all the content and approve it, costing lawyer money and taking product manager time. Reviewing and approving it would also create even more potential liability, so it's a never-ending circle. There's also the ever-present concerns about the hobby project not living up to the brand's quality standards. Basically, the way the law works combined with what it costs any big business to just "do something" means it's either "All in " or "All out", and any form of "All in" takes a lot of time and money - so it has to be able to make a lot of money - or it's just not worth doing.
And this is why nice people usually can't make fun little side projects around a big company's IP and just charge enough to cover their costs plus some coffee money.
Comments 2
Re: "I Cannot Take Any Chances" - Final Fight Book Campaign Cancelled Following Message About Its Use Of IP
@smoreon
> a Final Fight book might be riskier than, say, a general look at '80s arcade games, or 2D beat-em-ups.
The risk always depends most on how aggressive and/or unreasonable a rights holder chooses to be. A hyper-aggressive litigant with literally zero grounds to sue can still require tens of thousands of dollars and many months to get dismissed if they choose to be maximally obstructive. A legit company in the business of monetizing their IP hopefully won't be quite that bad - but they may not be too far behind given their business focus.
However, a book specifically on their trademark does have the possibility of additional complication from arguably "trading on the name brand" vs just mentioning the brand. If the "Final Fight" logo and game artwork is featured prominently on the cover, it makes it easy for them to claim "the book used our trademark to sell itself".
Of course, the doesn't mean the fair use safe harbor doesn't apply but it does make it more complicated and that increases risk. That's why some books go out of their way not to use trademarked names, logos or artwork on the cover. Like a book that could have been called "Inside Disney" instead being called "Inside the House of Mouse" or similar.
Re: "I Cannot Take Any Chances" - Final Fight Book Campaign Cancelled Following Message About Its Use Of IP
@smoreon
Hopefully, he's verified that whoever sent him the letter actually is the party that owns the rights (because griefer trolls will troll). But to answer your question, generally, it should be possible to write a book about a series of games because fair use is a thing. The key is ensuring you stay on the right side of fair use and that requires paying an IP lawyer with fair use experience to review everything. That's expensive and, at the end of the day, your lawyer's belief that you're not infringing won't stop a rights holder from suing you.
It may not even be that the rights holder is intentionally being mean. A lot of companies have lawyers on retainer and those lawyers run regular automated searches on trademarks their client owns. If they get any hits, by default they advise their client that the client should pay them to send a letter to notify the other party that they own the trademark and have the right to enforce it. Sending a bunch of these letters helps the law firm use up the client's retainer (basically an advance deposit). The firm will also warn the client that not defending their trademarks can potentially lead to weakening or nullifying the trademark. While technically correct, it probably wouldn't apply in a lot of situations but billable hours are billable hours and template letters are easy money.
Ultimately, if you're collecting money for anything that incorporates more than a tiny smidge some big company's trademarked IP, you're going to have legal exposure if they choose to sue. You may win in court but it'll cost well over $100K and take a few years (at best). Many people wonder "Why wouldn't a company just ask for a percentage royalty and make a little money if it sells well?" Sadly, there are a bunch of reasons that mostly fall under the heading of "Why big companies can't afford to do little things." If they grant a license to a hobby project, they can be named as a co-defendant if the project infringes some other company's rights. That means they need to review all the content and approve it, costing lawyer money and taking product manager time. Reviewing and approving it would also create even more potential liability, so it's a never-ending circle. There's also the ever-present concerns about the hobby project not living up to the brand's quality standards. Basically, the way the law works combined with what it costs any big business to just "do something" means it's either "All in " or "All out", and any form of "All in" takes a lot of time and money - so it has to be able to make a lot of money - or it's just not worth doing.
And this is why nice people usually can't make fun little side projects around a big company's IP and just charge enough to cover their costs plus some coffee money.