I'll preface this by saying that due to my current employment status, I can't review games. So please don't come back at this post asserting that I haven't been reviewing, because I can't.

I just was checking out XboxIndies.com to see some of the new games and came across Button Memory. I hate to pick one out of the crowd, but this is just a good example of why reviewers need to pay more attention and do a better job. Take a look at the cover art. See that little nog guy? Did the developer get permission from Microsoft to use that? What about the Xbox LIVE logo in the first screenshot?

Both of these are IP infringements and the game should have failed without even needing to even start it. If you are going to review the games, please remember to check the content and fail points and make sure your review is accurate. While the evil checklist and crashes will get a game failed, so will using images and logos without permission.

Dear Creators Club and XNA Community Members,

We sincerely apologize for having misread the information about the XNA Logo pack and as such we will remove the art that is similar to a "nog" as well as the text that says "Xbox Live Community Games".  Please note that we have not ripped/stollen either of these items but you can be assured that the team members are taking proper action to rectify this situation and that we will repost new game binary to reflect these changes.  Please accept our apologies in regards to this manner.

Sincerely,
Beth

I just want to say again, that I didn't make this post specifically to call out your game nor do I want to cause a discussion around those specific instances. I simply used it as an example of peer reviewers not performing their duties properly. In my mind, if something like this is making it through, I can only fear the other issues that are passing through peer review undetected. This post is just a friendly reminder to those choosing to peer review that if you are choosing to review a game, please choose to review it fully and properly.

never fear...SaraTheCat is here. i've been bustin my butt to review stuff and i have been really careful not to let things slip through but if the dev says they have the rights to something or says they made it themselves i give them the benefit of the doubt.  4 days ago there were like 45 or more games up here but now there are 30 so rest assured that games are being reviewed and scrutinized, especially when i do it.

Nick Gravelyn:

I'll preface this by saying that due to my current employment status, I can't review games.

Congrats on the MS job :-)

I brought it up in Review and the developer said that they created it themselves, so I passed it. Should I be failing games because it looks like there might be an IP infringement, even though the dev said they had permission? I thought that everyone that submits a game agreed that all of the content was theirs or they had permission to use it, so it's their problem if someone comes after them for it.

If I passed it incorrectly, then I'm very sorry and I'll be sure never to do that again. But I thought that I was reviewing correctly as per the review guidelines - is there a guideline for this sort of thing that I somehow missed? And what should I do if the dev says that they have the rights to it, as in this case?

If the developer claims to have permission or that the content is truly original, then you assume that they are not lying and pass the game (as long as there are no other fail reasons, of course). As I understand, it is up to the IP owner(s) of the content to step up and report abuse with Microsoft after the fact if the developer really is at fault. Your only obligation is to get confirmation from the developer that no IP infringement has occurred.

My thing here is that Microsoft has not given permission to use the nogs or their Xbox LIVE logo in games. Therefore even if the content was reproduced and not ripped, it is still IP infringement to me because the designs were copied identically as far as I can tell.

As a general rule of thumb, games should just not even bother trying to put any Microsoft logo or image in their games because, at this point, there is no public license granting that use.

i have a question for you....what about the people who made pong clones or have the name pong in the title of their game or app is that not IP infringment?  what about the break out clones? the various art galaries?  the game sketch looks almost exactly like and etch e sketch? system over ride looks like a simon board? what about the card games? and the list could go on for quite a while.....

I've updated the legal faq http://forums.xna.com/forums/t/17830.aspx to call out the fact that Microsoft graphics are insta-fail.

SaraTheCatProductions:

i have a question for you....what about the people who made pong clones or have the name pong in the title of their game or app is that not IP infringment?  what about the break out clones? the various art galaries?  the game sketch looks almost exactly like and etch e sketch? system over ride looks like a simon board? what about the card games? and the list could go on for quite a while.....

If you know a name is trademarked or an image is copyrighted and the developer doesn't have permission, then yes, it's a fail. In this case we know Microsoft has not given permission to use their logos and images in games so there is no debate.

J Force Games:

Ok Barney Fife. Seriously, who cares? I think it's just you.

Sorry, I'd like to think we can try to uphold a little bit of integrity by not violating copyright and trademark law. But maybe that's just me, too.

Edit: I take that back. The developer responded very quickly and seemed completely willing to update the game to fix the issue. So apparently they care as well. I'm glad to see developers who care about the integrity of their reputation and games and I'm glad to see this developer voluntarily fixing the issue.

J Force Games:

Ok Barney Fife. Seriously, who cares? I think it's just you.

Who in the world are you directing that comment to and what's with the attitude?

SaraTheCatProductions:

i have a question for you....what about the people who made pong clones or have the name pong in the title of their game or app is that not IP infringment?  what about the break out clones? the various art galaries?  the game sketch looks almost exactly like and etch e sketch? system over ride looks like a simon board? what about the card games? and the list could go on for quite a while.....

The legal FAQ covers these http://forums.xna.com/forums/t/17830.aspx - none of us are qualified legally to reject clones unless they are obvioulsy running emulators. Leave it up to the IP owners. For example 2 tetris clones have already been pulled after passing due to IP issues.

Titles are covered under trademark law Pong in particular is well protected. Usually people will change it when we poit things out to them but you are correct that if they keep on insisting they have permission the correct thing to do it let them pass.

Nick Gravelyn:

J Force Games:

Ok Barney Fife. Seriously, who cares? I think it's just you.

Sorry, I'd like to think we can try to uphold a little bit of integrity by not violating copyright and trademark law. But maybe that's just me, too.

Well, sorry, but this stuff just bugs the crap outa me. I mean, it was such, such a minor infraction, if an infraction at all. Like the guy said, that little head just looks similar, and yeah he used the same text and color for the community games logo, oh well. Seriously, I don't think Microsoft would even raise an eyebrow. If they cared, why didn't they pull it? And really, why would they care? It's the logo of the freakin portal that the game is on.

J Force Games:

yeah he used the same text and color for the community games logo

If I remake Mario using the same pixel layout and colors, it's still IP infringement. If he had written Xbox LIVE Community Games all in the white text, we wouldn't be having this discussion.

J Force Games:

If they cared, why didn't they pull it?

Because they hadn't seen it? MS employees can't look at games while they're in review and I doubt they go through each one after they pass. That would sort of defeat the purpose of peer review if MS went through all of them anyway.

J Force Games:

And really, why would they care? It's the logo of the freakin portal that the game is on.

Because it's a trademark. I'm sure Apple didn't want to shut down iPod Mondays at that one bar in California but if you don't protect your copyrights and trademarks, you will lose protection on them.

Nick Gravelyn:

Edit: I take that back. The developer responded very quickly and seemed completely willing to update the game to fix the issue. So apparently they care as well. I'm glad to see developers who care about the integrity of their reputation and games and I'm glad to see this developer voluntarily fixing the issue.

As the developers of the game that seems to have sparked quite the firestorm here, let me say something.  We did use a something similar to the "nog" in our game, it was just a background graphic that we used as a way to represent that it was a community game and we also used a font similar to the Community Game logo and made it look similar.  It was not our intention to infringe on Microsoft's IP, we actually meant it as tribute and we didn't think anything of it at the time. However, Nick pointed it out that it was our mistake to have done that, we have appologized in the initial post that said that and we have since removed all of the content that was deemed as infringement.  The game is currently sitting in playtest until it can be reuploaded to go through review again this weekend to make the update live.  We here at Thunder Hammer Studios applogize again to everyone in the community for our mistake and hope that our steps to rectify this will make it up everyone.  We thank everyone for their support and hope that everyone can move on and continue to do what is right for the community as well as themselves. 

Thunder Hammer Studios
-Thor

Thunder Hammer Studios:

It was not our intention to infringe on Microsoft's IP, we actually meant it as tribute and we didn't think anything of it at the time.

I totally understand and definitely never meant to imply that you maliciously were infringing on the IP. I was just reminding people to remember it. :)

Thunder Hammer Studios:

We here at Thunder Hammer Studios applogize again to everyone in the community for our mistake and hope that our steps to rectify this will make it up everyone.

I hope nobody is holding anything against you for it. Everyone makes mistakes and you are taking steps to fix it. That's all anyone can really ask for.

Nick Gravelyn:

J Force Games:

yeah he used the same text and color for the community games logo

If I remake Mario using the same pixel layout and colors, it's still IP infringement. If he had written Xbox LIVE Community Games all in the white text, we wouldn't be having this discussion.

J Force Games:

If they cared, why didn't they pull it?

Because they hadn't seen it? MS employees can't look at games while they're in review and I doubt they go through each one after they pass. That would sort of defeat the purpose of peer review if MS went through all of them anyway.

J Force Games:

And really, why would they care? It's the logo of the freakin portal that the game is on.

Because it's a trademark. I'm sure Apple didn't want to shut down iPod Mondays at that one bar in California but if you don't protect your copyrights and trademarks, you will lose protection on them.

Man, both those situations aren't really comparable. And I know that MS hasn't given us explicit permission to use the logos, but I really don't think they would care. If the developer of this game leaves it on there, I'd bet MS wouldn't do anything about it. And hasn't it been up for 3 days? I would think that somebody at MS is at least looking at the games released every day or so, at least seeing the cover art. It's just...this is just sooo minor, it just irks me. Sorry.

J Force Games:

Man, both those situations aren't really comparable.

Why not? The Mario example is exactly the same thing as saying they "used the same text and color for the community games logo". The Apple example is an example of why companies have to protect their trademarks even if the infringement is technically in their benefit by promoting their brand.

J Force Games:

And I know that MS hasn't given us explicit permission to use the logos, but I really don't think they would care.

Unfortunately that's not how it works. If you don't have explicit permission to use trademarked and copyrighted materials, you don't get to just assume they don't care and use them.

Nick Gravelyn:

J Force Games:

Man, both those situations aren't really comparable.

Why not? The Mario example is exactly the same thing as saying they "used the same text and color for the community games logo". The Apple example is an example of why companies have to protect their trademarks even if the infringement is technically in their benefit by promoting their brand.

J Force Games:

And I know that MS hasn't given us explicit permission to use the logos, but I really don't think they would care.

Unfortunately that's not how it works. If you don't have explicit permission to use trademarked and copyrighted materials, you don't get to just assume they don't care and use them.

Those situations aren't comparable because we're like, doing business with Microsoft, signing contracts and splitting profits, releasing games on their service. I just don't get why in the world they wouldn't let us use that logo.

J Force Games:

I just don't get why in the world they wouldn't let us use that logo.

I don't either, but if they wanted us to they would have given a license that allowed it like they did with the logo pack for websites. Since they didn't give us permission, we then have to enforce the fact that their trademarks and copyrights are off limits for games.

Nick Gravelyn:

Why not? The Mario example is exactly the same thing as saying they "used the same text and color for the community games logo".

i didn't know that looking at similar text and using a register trademarked charater that is known world wide to a much larger population of the world is the same.....there are a lot of open source and pay sites for text anyone could get the xbox text from one of these sites and use it not only for saying that something is on xbox live but for normal use too....Mario is a copywritten registered trademark character that has been around for like 20 years or more and the xbox live "logo" (if you want to call it that) has been around for.......4 i think so CLEARLY not the same

and, as suspected, we now have archair lawyers handing out advice..... I'll give you one guess what happens there

(for your benefit SaraTheCat - see the Legal FAQ http://forums.xna.com/forums/t/17830.aspx on why you can't give this advice)