I'd love to have a thread specifically devoted to legal discussion on fanworks. Benefits could accrue because budding artists need to be aware of the risks associated with the various fanarts, as recent C&Ds have made clear.
I think the questions about game modding would have to be tested in court before we get a solid legal answer one way or another. I tend to organize the basic lines of reasoning on each side as follows:
My guess is the reasoning on emulationzone's site might draw from
Galoob v. Nintendo. Basically a "the end user can do what he or she wants with his or her copy of a product" sorta thing. The patch can be analogous to a Game Genie code in the way it makes the game do something not intended by the producer, but intended by the player. The technical difference is that the Game Genie code writes something into a RAM address (dynamic memory) whereas the patch writes something into a ROM address (static data). I doubt the difference between ROM and RAM is worth quibbling over in a legal sense, so I do see a solid legal argument here. The risk in defying a C&D is that if the IP holder is serious about litigation, someone's going to have to pay a lawyer to prove that the link to
Galoob v. Nintendo applies.
Weighing against this is a general belief in the right of IP holders to protect the quality of their property (I've sometimes heard this referred to as "goodwill", or at least I think I have). By this rationale, Square Enix has a general right to order stopped not only game modifications and from-scratch derivative games, but also every fanfic and piece of fanart ever conceived based on its characters. If someone draws a pic of Crono in his skivvies (or even less) and posts it on the net, people could associate that with the IP from which the idea derived, thus eroding the quality of the IP -- from a more conservative point of view I suppose. This "goodwill' or "IP value degredation" angle is what a lawyer for Square Enix might argue if one of these cases were ever taken to court. When you input a Game Genie code you aren't changing or adding anything to the IP as a whole, just making a technical change in the gameplay mechanics specifically. The insertion of a timelessly classic character like KZ, on the other hand, is a qualitative change to the greater IP (or so a lawyer might argue to distance CE from the
Galoob precedent). In essence, instead of being pissed at SE for canning CE and Prophet's Guile, we should thank our lucky stars that they've allowed us to get away with all we have otherwise. Not that I agree with this logic, but it's out there, and strong enough even amongst the fanbases to give me pause.
There are also other variables at play -- namely that the arm of US law extends to, well, the US. Much could hang on whether a server or individual is stored in the United States or another country. This is only my guess, but I tend to think the Metroid II Remake Project and Card Sagas Wars have less to worry about on account of this supposition.
What's
really interesting to me is the treatment of IP in the form of music (and I think audio transmission in general) under US law. If you want to make a derivative piece of music, just head over to easysonglicensing.com and license it! Can't find the IP holder? Do your remix and the US government will hold your dues in escrow in case the IP holder wants to make a claim! Simple as that. Can you believe it? Imagine how flabbergasted I was when Mustin answered this question in the Chronotorious interview! Here I was, thinking he had to have developed a network of huge connections, and navigated that secret network like a mad ninja to be able to release an album based on Chrono Trigger's music. He was like, "eh, I just hopped on the Internet and bought a license, dude." And I was like:
If I remember correctly (which I may not), this aspect of US copyright law developed at a time when audio transmission was the great source of entertainment; phonograph records and radio shows. If I'm right on that, I wonder if US copyright law is simply behind the times with regard to other forms of entertainment transmission, or if there's something so qualitatively different about a musical idea that should make it easier to license than a written or depicted idea.