Can I write a story revolving around a video game (Without it taking place in game and making many changes)?

Question

Okay, so this is odd, but hear me out. We've all heard the story, Person A finds a cursed video game cartridge, plays it, every character dies, Person B gets involved and dies, Person A gets rid of game forever. It's the classic creepypasta format.

But if I were to get serious about writing a novel based on this particular formula, should I be worried about copyright? For example, The main character finds a copy of a game he played as a child in a place like a flea market or yard sale. He takes it home and starts playing, only to notice as time goes on things are very wrong. Wrong dialogue, strange noises, etc. By the end of the story, it's not even the same game anymore, it's practically a new setting for the conflict for main character and evil entity. Would I be okay using the real name of the game and certain gameplay within it, or would I have to do the classic trope of changing names slightly?

The reason I ask is because I feel the horror aspects that come in would hit harder with people who have played the same game, and would take note of slighter inconsistencies like certain spells being available too early. Note that the story would not be completely about the game and would be in no way criticizing it, but would revolve around it and the main character's struggle with whatever is wrong with this certain copy.

Answer 1

In this case your issue is Trademark, not Copyright. The contents of the game are used in a way that is thoroughly transformative, and in ways sufficiently different from the original this is deeply into fair use territory regarding the copyright. But if you use the title of the game in prominent ways, you're essentially riding on the fame of this game to promote your own product - diluting the brand. There are fair use exceptions to trademark too - but in this case, you wouldn't be meeting any. A cease-and-desist letter will quickly put an end to your project - unless you publish this non-commercially, as fan-fiction (which is a grey area, illegal from law standpoint, beneficial from commercial standpoint, so commonly tolerated by the trademark holders.)

There is an obvious "out" here - alter the names so that they are obviously and clearly different than the trademarked ones. You're in the clear considering copyright (note: you're safe from losing the lawsuit, not from the lawsuit itself) by being sufficiently transformative, and you don't create any confusion regarding the brands. Or - possibly better - make up the entire game, and everything surrounding it - all by yourself.

Answer 2

Let's suppose, for the sake of argument,* that there are no legal issues and you can just do whatever you want. It's still not a good idea.

If you use a real video game, there will inevitably be fans of this game. Probably a lot of fans, unless you pick an obscure game (at which point, I have to ask, why bother?). Those fans are not going to be happy if any aspect of the game is misrepresented, simplified, or taken out of context. At a minimum, it will take them out of the story. This may be effective, in the context of the horror you are trying to write, but it has to be obvious that you're doing it deliberately, and so as a consequence, you will need to do a lot of research to get all the original details right (so that you can get them believably wrong, and have your protagonist notice it at the appropriate juncture). Some of those details may be inconvenient for the story you want to write, and the research itself will occupy time that you could otherwise spend on writing.

On the other hand, there will also be non-fans, people who've never played the original. Unless we're talking about one of the most popular franchises in the world (e.g. Mario), you will need to introduce those people to the game, and then you'll have to convince them that "something is wrong." The latter entails explaining how the game is "supposed to" play in the first place, so that the reader can recognize the discrepancies. You would have to do that with an original game, too, but the point is that using a real game doesn't make this task any easier, and in fact may make it harder, because as discussed above, the fans won't like it if you simplify things.

Instead, I believe you're probably better off making up a video game, perhaps making it superficially resemble a real game, but with a clearly fictitious title. This will give you several advantages:

• Legal clarity that you're not infringing anyone's rights.
• You can alter the game to exactly fit your intended plot, symbolism, etc.
• A fictitious game will most likely be simpler and easier for readers to understand. This is to your advantage, as some of your readers may have never played the original.
• You can freely make use of the characters and story setting of the game without having to worry about getting permission. This lets you go into much greater detail about the contents of the game, if doing so is helpful to your plot.
• If your book is a wild success, you can write a spinoff e.g. novelizing the events of the game, or even license the game rights out to a developer and have someone make it for real.

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* There is a colorable legal argument that what you describe is nominative use, and not covered by trademark law at all. A "this is a work of fiction, not affiliated with brand X" disclaimer would probably help, but that is getting into the realm of legal advice. Talk to your agent/publisher and see what they think, if you have one. You can also try writing to the developer of the game, who may or may not be willing to give you permission depending on who they are and how you plan to represent their product.