copyright derivative-work
How much of this image do I need to modify in order to avoid copyright violation?
<p>There is a browser game that I want to port the Android. The problem is I do not want to use the same image assets because of copyright violations. </p>

<p>Would this example be enough to prevent a copyright violation?</p>

<p>Original Image:</p>

<p><a href="https://i.stack.imgur.com/J8eZU.png" rel="noreferrer"><img src="https://i.stack.imgur.com/J8eZU.png" alt="enter image description here"></a></p>

<p><a href="https://i.stack.imgur.com/OTONs.jpg" rel="noreferrer">This is my version</a>. It's on imgur so that it does not blend with the white background of this site.</p>

<p>Also this person has not seemed to put any copyright on their game.</p>

<p>Copyright is for original pieces of work. What you have made, is essentially a <em>derivative work</em>. Copyright is automatic for all things, unless the author has explicitly waived their rights, normally through a license.</p>

<p>What this means, is that you have created a piece of art, that has been derived from that of the original author. You made modifications to the original artwork to produce a new one. Your creation could not, and would not have effectively existed without the original. Your image has the same shape, and the same colour tones as the original, and would likely be considered a derivative work.</p>

<p>Since the right to derivative works is an exclusive right to the copyright holder, you would be infringing their copyright.</p>

<p>Avoiding copyright infringement is a question of "How is it modified?" rather than "How much of it is modified?".  What you've created is a <a href="https://en.wikipedia.org/wiki/Derivative_work">derivative work</a> of the original; to decide if your derivative is a copyright infringement, you need to see if your use falls under <a href="https://en.wikipedia.org/wiki/Fair_use">fair use</a> or your country's equivalent.</p>

<p>In the United States, fair use is determined by a four-factor test: the purpose of the use, the nature of the copyrighted work, the amount used, and the effect of the use on the market for the original.</p>

<ol>
<li>The purpose of use.  You're porting a game to another platform.  This use is not <a href="https://en.wikipedia.org/wiki/Transformation_(law)">transformative</a> as copyright law sees it -- it's essentially just a re-creation of the original work, which is a major strike against a claim of fair use.</li>
<li>The nature of the copyrighted work.  It's a small fragment of a computer game.  None of the usual defenses for this factor (such as "facts cannot be copyrighted" or "copying is in the public interest") can be applied.</li>
<li>The amount used. This is your biggest defense: you're only using a small fragment of the original game.  Thing is, it sounds like you plan to use <em>many</em> small fragments, which adds up to a big problem.</li>
<li>Effect of use on the market for the original. This is what kills any claim of fair use: you're creating a competitor for the original, with the potential effect of supplanting it in the market.</li>
</ol>

<p>Considering factor (4), you'd better work on creating art assets for your game from scratch.  Anything less is just asking for trouble.</p>

<p>The problem is not with just the image.</p>

<p>As you have stated, you are <strong>porting</strong> a game to a different operating system.  You are, basically, replicating a game without the original author's permission.</p>

<p>This is outright illegal.  You will get a cease and desist right away when the original author founds out, and the finished product will be instantly removed by Google if the original author contacts them.</p>

<p>Most legal way:
Contact the original developer for permission to port his game (including his images). Everything else is probably illegal, because it sound like you are "copying " his work.</p>

<p>If you port it by recycling <strong>any</strong> code or otherwise copyrightable material created by someone else you should check the licence it is released under before publishing it in any form as if you modify an all-rights-reserved work you will have made a <strong>derivative work</strong>. The right to restrict or prohibit derivative works is included in the <strong>all rights reserved</strong>.</p>

<p>However if you are re-writing everyhing on your own you should be fine copyright-wise. The open sources movement has grown. You can probably find plenty of free-to-use art with maybe a small sidenote requirement that you mention the author in a "credits" or "thanks to" section. Why bother and take the risk with potentially restricted and closed works if you are a small guy when there's an ocean of open sources?</p>
