Why are fan games illegal and no one should make them but literally every other form of fan content creation from art to cosplay to music to fic to AMV to Let's Plays to film gets by fine, is even reposted by the content creators? Why aren't nonprofit fangames protected by fair use like other stuff is, or is none of it protected? What makes FREE fangames specifically less legal and discouraged when there's who knows how much money being made on shirts, music, prints, etc. of the same material?
Ok, let me try to unpack this. First and foremost, I am not a lawyer. These are the sorts of questions you should be asking a lawyer who specializes in intellectual property. You could try [Ryan Morrison] or [David Graham] who are both practicing attorneys who specialize in IP and contracts. That said, this is how I understand it.
Why are other forms of fan content creation ok but not video games?
They aren’t. You won’t hear about the ones whose lives are ruined, because they ease up on the judgement in a settlement. One of the inevitable elements of the settlement (and the defendant always takes the settlement, because it only mostly ruins their lives instead of completely ruining their lives) is a signed non-disclosure agreement, swearing the signer to secrecy about the matter. There have been copyright claims on etsy shops, patreon artists, and so on. Let’s play videos usually either get taken down, or have their monetization switched completely over to the rights holders. Anime music videos are often taken down via copyright claims. Twitch streams actually have limited licenses (i.e. permission) to broadcast.
Sure, some people have managed to put some fan content out and managed to avoid the gaze of Sauron. That isn’t a legal defense that will stand up in court should you get sued, though. If you say “But they are doing it too!”, all it means is that they’ll probably be put next on the list.
Why aren’t nonprofit fangames protected by fair use like other stuff is?
That other stuff isn’t protected either. There have been plenty of cases where fan artists, fan writers, streamers, etc. get shut down because they receive cease and desist orders. Also, the worst part of it is… even if they are protected by fair use, the legal fees are usually enough to bankrupt whoever tries to mount the legal defense. A lawyer defending you from a lawsuit will cost tens of thousands of dollars, and that money is likely gone even if you win.
What makes FREE fangames specifically less legal and discouraged when there’s who knows how much money being made on shirts, music, prints, etc. of the same material?
It isn’t any less legal, it just tends to be more visible. Part of the issue is what sort of media the offending artworks are. Fan art, cosplay, and fan fiction are generally unlikely to compete with things like official art books or licensed novelizations/comics. Fan games, however, can negatively affect the brand - especially if they are not very good. They can draw attention away from the brand itself. They can do things to the brand that the owners don’t want. They can fool people into thinking that the game is from the publisher. All of this can affect the value of the property more than somebody selling prints.
As you have said, there have been some that have received the blessings from the publisher and/or developer. Sometimes the publisher will even solicit it - they will ask for submissions of fan art or fan fiction. In such cases, there is always, always a legal document prepared beforehand that states exactly what the rights in these situations is - anything submitted to the publisher becomes the property of the publisher, there is a limited license granted to the participants, etc. That’s the real difference here - the much of the “officially ok” stuff has obtained permission and is granted a legal license to use the property in a limited capacity.
Ultimately, it’s a question of what you’re willing to risk. You can say that it shouldn’t be this way until you’re blue in the face, but just saying so will not stop a lawsuit. Pointing out that others have been getting away with it will not stop a lawsuit. My post isn’t making a judgement on the fans who wish to make fan games; it’s a warning that proceeding down that path could result in a life-ruining lawsuit. That’s the long and the short of it. If you don’t like the laws, then you should write your senators and representatives in congress and tell them that you think the current copyright laws don’t work and should be amended. Or you could move to a country with more lax intellectual property laws, like Japan or China. But you can’t just ignore the law because you don’t like it. Nobody can.
Got a burning question you want answered?