Activision pwns King’s Quest fan sequel = important lessons for fan mods and sequels

In a nutshell: the King’s Quest games series was in games limbo, some fans tried to rescue it and make a fan sequel, they did it in the right way legally, but Activision has now decided to shut them down.  Shame.  Still, this is another example a simple but useful lesson for anyone wanting to make a fan-mod/sequel for a game: you have to seek the rights holder’s approval before you make the mod/sequel.  Read on for more… (sources: Joystiq and SPONG)

The background

Remember seminal adventure game series King’s Quest by Sierra?  It was awesome, but as with so many games in the Nineties, somehow it fell into games limbo.  Sierra went through various corporate shenanigans and by the early Noughties ended up being owned by Vivendi, which sat on the King’s Quest IP.

Then, along came Phoenix Online Studios, who wanted to make a King’s Quest fan sequel eventually called The Silver Lining.  They could have just started making the game themselves, as so many modders/fans do, but unless you first have the rights holder’s approval then making a fan sequel/mod means you open yourselves up to an IP infringement lawsuit (there may be IP defences available in your jurisdiction, e.g. fair use, but that wouldn’t necessarily cover you completely and, anyway, why take the risk?)  It seems that initially Phoenix did just that, working away at The Silver Lining and presumably hoping to get away with it.  But, in 2005, they received a cease and desist letter from Vivendi.  So, Phoenix then did the right thing legally by asking Vivendi’s consent for them to make The Silver Lining.  This led to an arrangement being reached with Vivendi that would allow the game to go ahead.  So far, so win.

Activision, it say NO!

But, fast forward to the present day (ish) and we remember of course that Vivendi had a $18bn merger with Activision, meaning it no longer called the shots in the Sierra titles.  Activision later said that it wasn’t particularly interested in the Sierra legacy titles it had acquired, including King’s Quest.

It seems that Phoenix tried to negotiate with Activision for the future of Silver Lining, but it didn’t work out.  As Phoenix announced today:

“After talks and negotiations in the last few months between ourselves and Activision, they have reached the decision that they are not interested in granting a non-commercial license to The Silver Lining, and have asked that we cease production and take down all related materials on our website.”

This suggests that the non-commercial licence that Vivendi had granted to Phoenix terminated on the Vivendi/Activision merger (this may have been an express term of the licence, or possibly was a side-effect of a corporate reorgnisation following the merger).  Either way, Activision considered itself no longer bound by the licence and decided, as it is entitled to do as the King’s Quest rights holder, not to renew the licence.  This of course means that Phoenix cannot continue to make The Silver Lining without the risk of an Activision lawsuit.  So, hence Phoenix Online decision that:

“Sadly, after eight years of dedicated work and even more dedicated fans, The Silver Lining project is closing down.

What the future holds for us, as individuals or a team, we cannot say. We have an amazing development team, however, filled with talented and hard-working individuals, and we hope the teamwork and rapport we’ve developed won’t go to waste. We hope that when we do know what the future holds for us, our fans will be there to enjoy what we can give them still.

Again, thank you all so much for everything. This has been a long and crazy road, full of more twists than we could’ve anticipated, but more triumphs and wonderful memories than we could’ve ever hoped for. And for that, to all of you and to everyone on our team, we will always be grateful.”

We can only guess why Activision refused to grant a licence to Phoenix.  The most likely reasons imo are:

  • Activision and Phoenix just couldn’t agree the terms of the licence
  • Activision may have been looking for a royalty, which Phoenix couldn’t/didn’t want to pay
  • Activision has its own plans for King’s Quest
  • Activision didn’t want to open the floodgates for all the other legacy titles it is sitting on
  • Activision just didn’t like The Silver Lining or Phoenix Online enough
  • Activision wants no further King’s Quest titles

These kinds of factors are always going to come up in situations where any dev/publisher holds the rights and a third party wants to use them, even if it’s for the non-commercial purpose of making a fan-sequel/mod just for the love of the game.  Think about it from the right’s holder perspective: even if you’re not doing anything with the title, why would you give control of it to someone else over whom you have limited control and probably don’t expect to get any money?  It’s a shame, and no doubt the King’s Quest fans and gamers generally are disheartened at Activision’s decision, but when games, law and business collide, you don’t always get the result you might have hoped for.

Still, that doesn’t mean that every attempt to make a fan-mod or sequel will go the same way…

Lessons for fans who want to make a fan-mod or sequel of a game:

  • Copying, decompiling, modding or in any way interfering with a game, or using game characters/names/concepts/images/sound/video etc without authorisation, opens you up to the risk of a lawsuit from the rights holder.  Don’t assume that you will be covered by a ‘fair use’ defence – that depends entirely on the law of your jurisdiction as well as what you actually do with the game (e.g. are you making a sequel for commercial or non-commercial purposes? Are you passing off aspects of the game as your own, rather than the rights holder’s?)
  • If you are in any doubt as to the legality of what you are proposing to do, have a chat with a friendly lawyer.  We don’t bite and some of us even like games…
  • Even if you don’t seek legal advice, the safe course is to seek the rights holder’s consent before you do anything – that’s the surest way to stave off a lawsuit.  The rights holder will be able to tell you whether or not it is happy for you to go ahead and, if so, on what terms. 
  • At that point, it’s down to you to get the best deal you can.  Again, if in doubt, have a chat.  Friendly developers or games business folk all may be able to give you a few pointers.  And, again, if in legal doubt, ask a lawyer.
  • But, if you don’t get the approval from the rights holder, for goodness’ sake don’t go ahead and make the game anyway.  You’ll just be back at square one and begging Mr Lawsuit to steamroller you.
  • That’s a positive note to end this post on, isn’t it?

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