Advice on designing "Expy Fighters" for a spiritual Smash installment?

[Lord_Brand]

My brother and I are designing characters for a spiritual sequel to Smash that are all meant to be expies of existing game characters, but we're not sure as to how similar a character design or concept can be within the realm of copyright. We aren't trying to be lazy, we just want to be able to capture the essence of the original character while still having the rights to "our version" so to speak. For example, we have a pair of dwarf brothers whose default costumes are red and green respectively, and who have goblin rivals, one short and stout, the other tall and lanky, that wear yellow and purple respectively.

The main question of this topic is: How similar can we make a character expy before they become too similar? How different do they need to be?

We also know that the movesets can't be too similar, so we're looking at how we can make our "expy fighters" stand out with their own moves and mechanics while still keeping true to the spirit of their bases.

• The dwarf brothers, obviously expies of Mario and Luigi, use axes and/or hammers in their moveset. Their specials reference powerups from the Super Mario franchise, but with their own dwarfy twist, like a helmet with dragon wings or a piece of armor that allows the wearer to turn into a statue temporarily. Their primary specials use magic wands to shoot fireballs; in this case, the Mario expy's fireballs are the ones that shoot forward while the Luigi expy's fireballs are the ones that bounce. The Mario expy is generally the cooler, more serious of the two, while the Luigi expy is the sillier one. Their nature as the "Player 1" and "Player 2" characters is emphasized by their helmets and beards; the Mario expy's helmet has a single horn and his beard a single tip, while his brother's helmet has two horns and his beard is split into two tips.
• Our Wario expy, one of the aforementioned goblin rivals to the dwarf brothers, is greedy and focuses on gold in his moveset. He acquires gold by beating the stuffing out of his opponents, which fills up his moneysack. The more gold he has, the heavier the moneysack becomes, and the more damage it deals when he attacks with it. However, he'll also become slower while carrying it. You can spend gold on items like bombs or giant coins to lighten the load. And yes, he has a shoulder tackle move.
• Our Link expy has an Inventory of items he can access and assign to his Neutral Special, with the Bow being his default choice. His Side Special has him perform a Dash attack inspired by the Pegasus Boots from the Zelda series, while his Up Special has him leap upward and glide a short distance using a cape, a nod to the Roc's Cape from the same.
• Our Pikachu expy has an electric charge mechanic where it builds up electricity as it moves and attacks, which it can then discharge by using a Special (similar to the Plasma ability from the Kirby series). Whenever "Expykachu" uses a Special, it discharges all electricity it's stored up. This gives it a distinct feel from the actual Pikachu while still feeling like you're playing a speedy, electric rodent.

We also have plans for expies of characters who aren't currently playable fighters in Smash, many of them characters we'd personally like to play like Krystal and Shantae.

A few of our expies draw inspiration from outside of video gaming as well, like a Captain Falcon expy who draws inspiration from All Might, and is more of a straight-up superhero as opposed to a bounty hunter.

In case anyone's curious, this is the current list of characters we plan on making expies of (prone to update over time):

Spoiler

Veteran

• Mario
• Luigi
• Bowser
• Princess Peach
• Princess Daisy
• Rosalina
• Wario
• Yoshi
• Donkey Kong
• Diddy Kong
• King K. Rool
• Link
• Princess Zelda
• Ganondorf
• Sheik & Zelda
• Samus Aran
• Zero Suit Samus
• Ridley
• Pit
• Palutena
• Marth
• Ike
• Robin
• Kirby
• Fox McCloud
• Wolf O'Donnel
• Captain Falcon (with a dash of All Might)
• Pikachu
• Simon Belmont
• Mega Man
• Ryu
• Terry Bogard
• Sonic the Hedgehog
• Banjo & Kazooie

Newcomer

• Toad
• Wart
• Waluigi
• Dixie Kong
• Ruto/Mipha
• Darunia/Daruk
• Wolf Link & Midna
• Takamaru
• Medusa
• Caeda/Azura
• Lyn
• Krystal
• Sypha/Shanoa
• Alucard
• Cornell
• Roll
• Mega Man X
• Zero
• Axl + Green Biker Dude (yes, seriously)
• Sigma
• Dr. Eggman
• Shadow the Hedgehog
• Rouge the Bat
• Crash Bandicoot
• Spyro the Dragon
• Conker
• Berri
• Shantae
• Risky Boots

We probably won't have them all in the base game, in order to cut down on development time before release, but we'll start with a reasonable core roster (somewhere between 20 and 30 fighters, maybe?) and add more over time via DLC. We're thinking of making this a Kickstarter project and including some of the DLC as stretch goals, that or having subsequent Kickstarter funds for DLC we'd like to make for the game. We'll also probably have an open beta trial version, to help with playtesting.

[lenticular]

20 hours ago, Lord_Brand said:

The main question of this topic is: How similar can we make a character expy before they become too similar? How different do they need to be?

Honestly, if you're hoping to turn this into a commercial project or make money off it in any way (for instance, through Kickstarter) then you really need to go and see an actual real lawyer about it rather than just a bunch of random Fire Emblem fans on the Internet. Partly because laws and requirement can be different for commercial use compared to personal use, but also because once you start taking people's money then you have a burden of responsibility to them and you need to be able to say with complete confidence that you know you aren't going to have to take down the entire project due to legal issues.

On the other hand, if it's just going to be a small hobbyist project that you're doing for fun then you can probably get away with doing whatever you want. Nintendo probably won't see your project and if they do then it will probably be too small for them to care about it and even if they do then they will probably just demand that you take it rather than trying to sue you for it (and if they do then you absolutely just take it down immediately and without question regardless of whether you think you are legally in the right because you absolutely do not want to be in a legal battle with a huge multinational corporation).

And if you aren't satisfied with all those probablies and want a more definitive answer, then you're back to the point where you need to get advice from a lawyer. Intellectual property law is incredibly complicated, and if you find someone randomly on the Internet who says they can give you a simple yet definitive answer then they're either lying to you or they're deluded.

[Lord_Brand]

Well, my intent was to make this a community project, but my brother thinks we should try to capitalize on it. So, I'm taking steps to ensure our creations are clearly identifiable as separate from the characters they're based on. The intention is that if you put our characters next to the characters they're expies of, it's clear they're separate characters, even if the inspiration is also obvious. For example, our Samus expy is a red-headed lady in a hi-tech suit of armor that looks different from Samus'. Viewed next to each other, you can tell they're not the same, but it's clear where our bounty hunter draws inspiration from. Of course, being a redhead means there's a chance she'll be compared to Joanna Dark from the Perfect Dark series as well, especially in her stealth suit. In some cases, the expies are a little less obvious, like my brother's suggestion of a bear for our DK expy. He's big, brown, furry, and packs a punch, but very clearly not the same guy.

Additionally, our game makes a point of lampshading the fact the fighters are all expies, with a tagline to the effect of "fighters who are totally 100% original and not based on certain other famous video game characters", and some of the backstories could even allude to the originals in some way, like our Samus expy being raised by a famous bounty hunter and having built her own suit using schematics left behind by said bounty hunter as a reference point. Basically, the game draws attention to the fact the characters are expies and makes jokes about it.

And the fact is, similar characters occur all the time across video games and other media. The current page image for TV Tropes' article on "Fountain of Expies" depicts five different blonde knight ladies who at a glance could be confused for one another but when viewed side-by-side are clearly just similar, not the same. Heck, when you think about it, a lot of the characters we're making expies of are themselves expies of other characters from literature and animation. Link? Basically King Arthur, Robin Hood, and Peter Pan rolled into one (maybe a bit of Legolas as well). Mario himself is comparable to Mickey Mouse, and his game started as a Popeye game of all things. Bowser and Ganon both are expies of the Ox Demon King from Journey to the West, and Ganon was also inspired by Hakkai, the Pig Man from the same. Mega Man is an expy of Astro Boy. Sonic the Hedgehog also draws a lot of inspiration from Mickey Mouse, even more so, and being a blue dude who fights an evil roboticist, you could argue he's an expy of Mega Man as well.

As detailed on the aforementioned "Fountain of Expies" page, there are a number of well-known expy archetypes that I've been using as a reference point for how to make an Expy myself, and there's also a TV Tropes page for writing expies. I just figure someone here might have advice derived from their own experiences.

[lenticular]

Well, there's a lot of a difference between drawing inspiration from multiple different characters as compared to just a single character. If a character is drawing inspiration from King Arthur, Robin Hood, Peter Pan and Legolas then they aren't really an expy of any of them. They become their own thing. Pretty much any creative work is going to be inspired by multiple other works. The greater the proportion of inspiration that comes from a single source, the more likely it is that the character is going to be creatively lazy and/or legally dubious.

There's also a big difference between copying a folk tale or work that's in the public domain (eg Robin Hood, Journey to the West) and copying a character whose IP is owned by a corporation that is notoriously protective of said IP. Artistically, there's little difference between ripping off Robin Hood and ripping off Mario; legally, there is. It's also worth noting that while a lot of characters that are straight rip-offs of other characters do exist, many of them have been created by companies who have legal teams who can advise them on exactly how close to the line they can get before reaching the point where they start infringing on trademarks or copyrights. And sometimes they end up going to court anyway, like the time Universal tried to sue Nintendo because of how similar Donkey Kong is to King Kong.

You seem to have some sort of a sense that what you're doing is somewhere close to the line of what is and isn't acceptable. I'm assuming that's why you were asking about copyright in the first place. And if you're anywhere in that vicinity, your only options are to get proper legal advice or to just risk it. Personal anecdotes and pages on TVTropes are fine for creative advise, but they're worthless when it comes to questions of exactly what is and is not copyright.

My advice, for whatever little it's worth, would be to give up on any idea of commercialising your project. Once money starts changing hands, that just opens up multiple different cans of worms that you almost certainly don't want to deal with. If you keep it as a hobby project then you can much more easily just focus on the creative and artistic side of things and not worry about the legal side. (Which isn't to say that you would be completely protected from legal consequences if it's a hobby project. You wouldn't be. IP infringement is still IP infringement. But it would decrease the risk of things going bad and make it a whole lot easier to extricate yourself from if they did.)

[Lord_Brand]

That's true, the TVT article on Expies even mentions that a character drawing inspiration from multiple sources doesn't count as an Expy anymore. Still, the kind of similarity Link has to those other four characters is an example of what we're shooting for here: enough similarities to make a connection, but not so many that you can't tell them apart. And I think that's the general rule for creating "lawyer-safe" expies.

I guess what I'm looking for here are specific suggestions of changes that could be made to a given character to create a workable expy. Like, if you wanted to create an expy, how would you go about it? Say you wanted to create an IP inspired by a game series you like. How would you design the characters differently from the source of inspiration? What kinds of names would you give your characters? Stuff like that.