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I have a question about donations to an open source project that is based on an old strategy game from 90 years (they have own developers and own big publishers and even sells in Steam now).

So we are doing this open source project, it's basically a port to a new engine, with some new features and ability to add mods, where the new engine will use (import) graphics and sounds from the original game.

Can developers accept donations for own work on such project completely legally not violating any laws of intellectual property (in particular, making a profit from someone else's intellectual property)?

Or what can be done so that developers can accept donations completely legitimately in this situation (maybe choose some license type etc.)?

(Donation of course will be not mandatory, not binding and can not impose obligations on anyone.)

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Two important initial considerations that would make the rest of the answer unnecessary:

  • If the game is 90 years old are you sure any copyright still applies? Copyright expires after a set amount of time (though the timelines are complicated, based on what the laws were at the time the work was published, and whether the copyright holder renewed the work's copyright, if that option existed) so the work, or some previous version of it, may be in the public domain.

  • A general rule about copyright is that it pertains to creative works, and not to rules and systems. If you only copy the mechanics of the game and manage not to replicate copyrighted written and visual aspects of the original, then your work might not infringe on the copyright of the original. (But I'm not a lawyer, nor have I reviewed the specifics of your particular case.)

If neither of those apply, read on:

In general, a work's status as an open source work and/or its author's decision to make money from it typically have no application to a finding (or not) of copyright infringement. Either work is too similar and it is infringement, or the work is not similar to the original, and there is no infringement. Whether your project makes money from the work or not does not change its infringing status. Analogously, if you trespass on someone's private property, whether or not you do so in an attempt to make money, you're still trespassing.

Some jurisdictions, such as the United States, have a mechanism to defend what would otherwise be prima facie infringement by claiming that your typically-infringing use is somehow "fair". The factors of how you used the work and whether you collected money would then come into play if your lawyer decides to formulate such a defense. Some jurisdictions limit these types of exceptions exclusively to particular domains, such as news reporting of academics, while the United States has a set of four factors, and it can be extremely difficult to predict in advance how a court will weigh your case in light of those factors.

Assmuing that your project is prima facie infringement, it is very far from clear that your project would be defensible even if you gave your work away, unconditionally, for free. If you then solicited donations, your project would become slightly more difficult to defend than before.

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