Des Moines, IA asked in Copyright and Intellectual Property for Michigan

Q: I want to make a game that references a band as homage. Is that copyright infringement?

I am a fan of the band Supertramp, and very inspired by their music, I've been making a game that pays direct homage to them. Here are some of the examples of things I've inserted:

- reference to album art.

- some musical references in the soundtrack, such as a small riff to reference a recognizable segment.

- parody characters of members of the band/album art.

- references to lyrics as a joke.

I am NOT using any of the original content. The game has a completely unique setting and characters.

This game expects a commercial release. What are my options and am I in fair use?

1 Lawyer Answer
Will Blackton
Will Blackton
  • Intellectual Property Lawyer
  • Raleigh, NC

A: This question is probably too fact-specific for an attorney to be able to give you a clear answer without seeing the game. That being said, it is a dangerous strategy to rely on fair use in a questionable scenario. Fair use is a defense to a lawsuit, which means that you're already in court and paying an attorney to represent you. Of course, if your use of Supertramp's intellectual property assets clearly falls under fair use, you'd be less likely to be on the receiving end of a lawsuit.

It may be easier and less expensive to get permission from the owner of Supertramp's intellectual property assets. I recommend consulting with an attorney familiar with copyright and trademark law before releasing the game or contacting a representative of Supertramp to acquire any required licenses.

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