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Not sure how to phrase this, but here we go. I'm creating sprites for a game, and am using sprites from a NES game as a point-of-reference.

I'm not copying graphics verbatim (this includes my refusal to copy directly from one window and paste in another), but I'm keeping the original source material open in one window while drawing a similar graphic - but not exact - in another.

My understanding of copyright law has been that you can use other people's work as reference, but you cannot blatantly 'lift and copy' from theirs into yours. I'm not talking about characters (e.g., copying Mario and removing his mustache), I'm working simple tree and grass designs. Anyone have thoughts on this?

There used to be a rule of thumb... 20% difference but I think when up against a franchise that rule went out the window... but if your doing it on ornate things like grass... you should be fine... and if your making it free content... your usually ok...

Your best consulting a legal advisor if you plan to sell the product...

If it helps you could try posting two images here and maybe get a better more accurate answer... however you should still seek legal advice from a more official body that way you can be certain... when it comes to copyright... always seek legal advice. some legal advisors (lawyers/solicitors) might give you an answer for free.

EDIT

typo sell...
Also do not quote me on the above... like I said... see a legal advisor.

I guess it depends on how close to the original you make the graphics.

I would suggest trying to copy the technique more than anything, then make the tilesets unique. For example, the grass might be made from a repeating texture, but the chances are there isn't a lot of detail on it to copy - so if you do your own version, at least you won't run the risk of doing a carbon copy of it. Parts that are random, are best kept random, by you, same applies to parts that are organic. If you like the way the roots and branches of a tree look in a particular game, then try and replicate it, but with your own design. It's especially tricky with pixel work, because it is actually fairly rare these days to find someone who's good with pixel art, a seasoned pro can make all the difference with just a handful of pixels - difficult to be inspired rather than just copying.

I think you'll be fine really, I'd be more worried about angry retro videogamers calling me out than someone getting pissed at similar graphics.

What to remember is that professionals have similar techniques to ours, similar or the same - they aren't privy to any supernatural knowledge - they'll check other artists work, check google images, zoom in sprites and decipher the techniques used. Professionals don't necesserily go and get permission for each and every source image they use.
Not too long ago a commercial developer used the textures supplied with Tersculpt in a game, no credit, no permission, no freebie copy for my trouble... I actually saw the game reviewed on Youtube and recognised the textures. Who in their right mind would use textures from a free, indi terrain editor in a commercial game! - I don't mind of course, but I could have spent more time on them, they didn't have to nick them like that.

Frankly these days, indi developers are just as likely to have work taken without permission. I would say a single image on Google is fair game, as long as the originator has no copyright notices, like 'Sample' written on the image. Most people would use an image as a base, or as vague detail - usually not in it's entirity. Creative people are often just happy for their work to be recognised or used for something other than getting 5 comments on Facebook... so the way I see it, photographs are the fairest game of all.

Firstly note: As others mentioned you would be foolish to rely upon anyone's advice in a forum 100% without consulting legal counsel.

That being said here is some thoughts based upon my knowledge of your questions:


According to US Copyright laws any art is copyright immediately upon the author's publishing it. No notice is needed.

Also filing for the copyright is NOT required. Only if you wish to sue someone, then you must file for the copyright to litigate.

International Copyright law closely resembles US law but there are minor differences here and there. In some countries you must post notice is a somewhat common difference.

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Secondly: In US Case law it has been upheld that a company can not sue you for "look and feel" of your game resembling theirs and win.

The most famous case that set precedence is where the copyright holders of Tetris sued a company for making a Tetris clone. They lost because its not enough to say "their game looks like ours".

This does not mean that they couldn't sue you and put you out of business with legal costs before you won your lawsuit though. This is in fact a common tactic of large companies to try to prevent clones from entering the market.


Now specific points to help guide you:

1: Copy & paste is a strict violation.

2: Fair use portion of copyright includes being able to use a likeness of the artwork in order to parody it. (case law cites use of photographs of copyrighted works to parody them being upheld)

3: "reference" of other's work is not a violation. However in the case of for instance you use Photoshop with a upper and lower layer and you trace the copyrighted work 100% as a 'reference' clearly your work will still be a violation if you make an exact copy or something that is clearly their character.


For instance say you wanted basically to make an Iron Man game. You cant make Iron Man ; but you could make a guy in a metal suit.

Important things to be sure it was not Iron Man would be to make his face distinctly different. The pattern and method of joining armor different. And probably the way he flies or moves different (instead of jets out of his hands and feet maybe a rocket pack or metal wings).

In this example they couldn't win a suit and say "Well he looks kind of like iron man because hes a man wearing a metal suit!" Because as stated above - existing case law proves that "look and feel" suits will not win in our court system. You have to actually copy their work to loose the suit.

Finally TradeMark law is MUCH looser on the side of the trademark owner. UNLESS the trademark owner does not rigorously defend their trademark.

If you notice an item is trademarked, honestly I would just stay the hell away from it

Hope that helps!