Hasbro has finally responded to my pleas for clarification on what parts of Shards of Equestria they object to. I was holding hope for a miracle, but I got the answer we all pretty much expected: they have a problem with all of it.
The full letter from the lawyers will be posted after the jump but obviously it’s time to make the announcement I was fearing I’d have to make for the last month. Due to legal requests from Hasbro that I have neither the right nor resources to fight, Shards of Equestria is finished.
The link to the Download page has already been removed. I was assuming that offering printable images was the main concern but clearly Hasbro (and mainly Wizards of the Coast) thinks using the actual game mechanics and their card images is the bigger issue. I remain adamant that these cards fell under parody. Hasbro disagrees. I have no ability to fight them on this.
Some people have asked if the project can proceed with wholly original assets. I believe a project like that can, but that wasn’t the project I wanted to do. I don’t have a personal interest in making a set of Pony Magic cards that I have been told can have neither Ponies or Magic in them. There are a host of other fan-made games that are getting off the ground, and I wish them all the best of luck.
I don’t know how much longer the site will stay up but while it stays up I just want to say one more time, thank you, everyone. Thank you for your feedback, your thoughts and your enjoyment of the game, albeit for the very short period it was available. Regardless of the project being shut down, I still started this with the mindset of of making a custom set that I could play with my friends, and that still exists. There’s a printed-out set of five decks that my friends will still be able to take out and play whenever we want a little break from our normal Magic sessions, and that’s something no lawyer can take from me. Friendship remains Magic.
Dear Mr. [redacted]:
Thank you again for your quick response and patience in awaiting a reply. We have now discussed the matter with both Hasbro and Wizards of the Coast, and regret that, as stated in our original correspondence, although both companies appreciate your enthusiasm for their properties, they must protect their intellectual property rights and therefore deny your request. The fact that you copy, display and distribute the MY LITTLE PONY® and MAGIC: THE GATHERING® trademarks, pony characters, character names, MTG trade dress, Mana symbols and other elements of the two properties is sufficient to violate copyright, trademark and other intellectual property laws. The fact that your cards are available in downloadable format increases the potential danger and impact of that infringement.
Under U.S. copyright law, the copyright holder has the exclusive right to reproduce, distribute, and display the copyrighted work and to create derivative works from it: http://www.copyright.gov/title17/92chap1.html#106. While these exclusive rights are somewhat limited by the fair use doctrine (codified in 17 U.S.C. § 107 – http://www.copyright.gov/title17/92chap1.html#107), your use of Hasbro’s MY LITTLE PONY® and MAGIC: THE GATHERING® elements is not fair use.
“Fan fiction” does not constitute any of the potentially protected fair use purposes, such as criticism, comment, news reporting, teaching, scholarship, or research. That you call your work “parody” does not make it so, nor does it mean that it does not infringe Hasbro and Wizards’ copyrights and trademarks. In fact, your use of the MY LITTLE PONY® and MAGIC: THE GATHERING® elements is not parody at all. Under well-settled law, a parody comments in some way on the copyrighted or trademarked work that it is copying. Your game, on the other hand, does nothing of the sort. Rather you simply use Hasbro’s and Wizards’ intellectual property to create a game from these characters and elements in order to “avoid the drudgery in working up something fresh.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 580 (1994).
In addition to defining the “permitted purposes” under the fair use doctrine, Section 107 of the U.S. copyright law also sets out four factors to be considered in determining whether or not a particular permitted use is fair:
(1) The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
(2) The nature of the copyrighted work
(3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole
(4) The effect of the use upon the potential market for, or value of, the copyrighted work
Even if your use of the MY LITTLE PONY® and MAGIC: THE GATHERING® elements fell within one of the permitted uses, which we do not believe it does, it still infringes Hasbro’s copyrights under an analysis of the four factors: (1) the nature of the copyrighted work is creative and of the type afforded the highest protection under copyright law; (2) you incorporate virtually the entire copyrighted works, not small or insignificant portions of them; and (3) there is an effect on the potential market for the copyrighted work as both properties are licensed and/or sold in trading card or collectible card form, so your work is a direct substitute for the original works.
We therefore must reiterate our request that you remove the MY LITTLE PONY® and MAGIC: THE GATHERING® elements from the Shards of Equestria game and from your website.
Counsel for Hasbro, Inc. and Hasbro Studios LLC