I want to make a plattfformer and created this art.
Is this to close to a mario clone?
Probably, but you should rather talk to an IP lawyer, not to the forum. If you want to play safe, do not try to emulate graphics / visual design belongs to others. Make your own. You can emulate game play, most of the time.
IANAL
Depends whether Nintendo care enough to come after you. Whether or not it’s legal or not, they have the deeper pockets.
You might get away if your plan is to make a parody but even then you should consult a lawyer. Safest route is to just make your own characters and don’t mess with Nintendo the most notorious gaming company when it comes to copyrights.
More than likely but nobody here is a lawyer. Contact one for actual reliable info on this.
Just how have you “created” that art? It looks kind of like a paint-over to me.
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Despite what people are saying here, no, it’s not. You don’t even need to contact a lawyer for this one. This is absolutely distinct enough from Mario’s actual character designs and art that you won’t run into issue. The points where you will start running into issues are usually the following:
- The characters are visually similar enough to the source material that they can cause confusion with the source material. Interestingly enough, this is actually very difficult to argue in court and is generally only an issue if you start approaching trademark too closely. Think “calling your game Super Marrio Brothers” more than “clearly a riff.”
- The art in question is built upon directly modified art from the source material. Generally speaking, this applies to things like sprite edits and, potentially, procedurally generated art that has been trained on material that you have not properly licensed.
There is a certain point where you have to exercise your own judgement and this is one of those moments, but here’s a useful piece of advice:
If you have to ask yourself if something is a problem, it’s best to err on the side of caution. Not because it might not be legal, but because you’re showing that there’s a distinct lack of confidence in what you’re doing.
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This mario sprite looks like a direct edit of a real mario sprite though, so #2 would apply here, no?
See Rogers vs Koons on wikipedia.
https://en.wikipedia.org/wiki/Rogers_v._Koons
If something looks the same this can be enough.
And like others said, direct edits are a no-no.
I can’t begin to speculate on that. It’s definitely not the SMW sprite, but I remember people saying this about Flappy Bird and being entirely wrong.
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He has definitely painted over the original sprites. It’s so obvious from the pic he posted.
If you’re going to make that claim, the burden of proof falls on you. The splotchy glove being out of resolution with the rest only shows that they have no idea how to use an image editor and sprite scales. However, a cursory glance at the All Stars and original versions of Mario Bros 1, 2, 3 and World shows too many distinct differences. The doge faces may be another story because they look familiar, but I can’t make that claim.
“It’s so obvious” was the same claim made towards Flappy Bird, claims that were proven to be entirely false.
It’s also outside the scope of this thread to debate these things.
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Speaking of which when submitting a DMCA to a store like Steam how much proof does the copyright holder have to submit? Because the real problem here in my opinion isn’t whether it’s legal but all of the hurdles you might have to jump through that could threaten the sale of your game.
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In the case of Steam, there’s a reasonable amount of proof required because I don’t believe they have an entirely automated process, but in the case of games, DMCA is usually a last resort when things like C&D letters and other legal options aren’t working out.
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Debating whether they did it or not, yes.
But pointing out that it has an impact on the answer is in scope. If you make a thing by taking someone elses thing and modifying it then it’s still their work too, and you need their permission to use it.
Of course there are practical limits to what can be detected and enforced, but that’s a different question.
Doge in a Mario look alike suit? Probably fine.
Actual Mario sprite with Doge face painted in? Probably not.
Even if the OPs example is the latter, though, entirely possible it’s a mock-up just to illustrate the question.
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Thats a very fair point and a good example, flappy bird seemed to be a certain ripped sprite and in the end look how that turned out. So yeah, point taken. I still think I have seen this exact sprite in a mario game, but I am starting to think that was also a fan game, in which case my point probably doesnt stand.
Don’t risk that, like seriously its Nintendo where taking about. even if you think you are right you would lose a lot of money if it goes wrong.
Again, not true. Before anything that would count as an expense at all would happen, they’d likely get a cease and desist. This would potentially pause a revenue stream, but that also comes with the implication that a revenue stream would exist at all, which is actually rare for indie games.
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You’ve referred to your project as a “mario look alike,” meaning you yourself admit it is a Mario look alike. In fact, your question isn’t if it looks like Mario, but rather, if it is a “copyright break” and if it is too close to a clone of Mario (which it doesn’t have to be to be copyright infringement).
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While having a character with a red shirt, blue overalls, white gloves, brown shoes, and a red hat isn’t inherently Mario, combining that with another character in a pink dress with a jewel, white elbow length gloves, and blonde hair nears closer to Mario because those elements can only be found together in a Mario game. In other words, while the elements of a Mario game may not necessarily be unique individually, the composition of those elements is. This applies to the composition of individual characters, too. The character in red by itself might be ok as is, but if that character happens to be a plumber who speaks with an Italian accent and enjoys jumping & breaking things, you once again hit the composition issue because all of those elements can only be found together in the character Mario.
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There’s only one difference between your characters and Mario & Princess Peach, and that’s that your characters have doge heads. Remove only the heads and then list all the elements of your characters that can’t be found in Mario & Princess Peach.
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Going off point 3, what would you do if Nintendo added content to their games that did nothing more than change Mario’s head into a doge head? Would you then claim copyright? How would you argue that?
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Doing a Google Lens search on your characters returns Mario & Princess Peach. Don’t know how much “weight” this holds, but given that it returned an actual name of an existing IP instead of just visual matches, and that IP happens to be the one you say it looks like, I think it’s significant.
From the image alone, I think you’d be ok calling this a parody, but not an original work. Ultimately, however, it’s up to Nintendo to say something before it becomes a problem. Looking at Nintendo’s track record, it’s very unlikely they won’t.
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Aside of the whole discussion… seriously, such close Mario clones and parodies have been done to death. In the hype times of flash games, I probably played 20 different visual variations of SuperMario 1-1…
Throughout the years Nintendo has brought out so many Mario games with different powers and stuff that you’ll have a hard time doing something revolutionary.
So go with something new (characters that allow for entirely different abilities and thus gameplay) and if you stick to 8bit graphic plus that kind of music and achieve enticing gameplay, then you will likely reach out to the same retro fans who would consider playing a mario clone anyways.