Night of the Living Trademark Infringement
A Night of the Living Dead Game Boy Post Mortem
In February 2022, I posted the image above with the caption, “I’m thinking 10 levels, 2 bosses. What do you think?” It became my second most popular tweet ever. I’d been inspired to make a movie mockup and chose Night of the Living Dead. It seemed like a good fit—after all, zombies are the #1 cliché enemy in gaming. But what didn’t make sense to me was why this movie had never gotten a game adaptation, and still hasn’t (foreshadowing… maybe).
As a game developer, it’s hard for me to ignore that level of engagement—it really excited people. I made a prototype and set up a Kickstarter. I even reached out to a few publishers. But I stopped myself from launching the campaign because something didn’t feel right. To better explain why, let me talk about how Night of the Living Dead ended up in the public domain.
A Grave Mistake
“Night of the Living Dead being public domain is the fault of the film’s distributor, who didn’t put the required copyright notice on the theatrical prints.”
Originally, the film was called Night of the Flesh Eaters. When the filmmakers discovered another movie with that title, they changed it but forgot to add the copyright notice to the film. To recoup the lost revenue, George Romero rewrote and remade the film as 1990’s Night of the Living Dead.
You can learn more about that here:
Beating Down the Door
As a fellow creator, and out of respect, I decided to reach out to see about making a game. It seemed like nothing was happening with the IP outside of re-releases.
This part of the journey started with emailing GARF (the George A. Romero Foundation). To my surprise, Suzanne Romero replied and forwarded my message to Image Ten, the official “license” holder. This is where things got… a little icky.
After a week, I decided to reach out directly to Image Ten. Sometimes things get missed, and that’s okay. But it turns out they never intended to respond in the first place—they sent me a corporate template response.
(Maybe I’m wrong, but I don’t like being spoken to that way.) So, I pushed it a little further. Here was my response:
This led to a more personal reply, but it bothered me in a different way.
The 1960s movie is in the public domain. The elements tied to the film are public domain. The movie was “fair game” before I was even born. But am I reading this wrong? Am I a problem? Are the fans the problem? I guess the problem is, people would believe they were doing something cool, and they would have to tell them, “ No, we are not that cool”.
In Image Ten’s view, if they were the farmhouse, I’d be one of the zombies reaching in through the window.
Clearly, I failed to communicate effectively. They interpreted “making a game for the Game Boy” as infringing on the Game Boy IP, and the mention of finding a distributor (a concept outdated in the gaming world) suggests they might be a little behind the times. Bottom line: They want a ton of cash upfront, and they love their shareholders. I appreciate that they provided some kind of window, but maybe turn down that “I’m-offended-o-meter” a bit.
In reality, what Image Ten holds is an application to trademark the title” Night of the Living Dead”. When you file a trademark, you must specify a category or class. I checked the TESS and they got themselves covered. But…. the applications they have filed, in regards to games, have been pending since 2017. They currently have no rights to enforce.
I know talking like this goes against what I said earlier “…out of respect” and Suzanne was really nice, so I’m going to move on.
What’s Left?
I still want to do something with what I’ve created. Night of the Flesh Eaters would be appropriate. What about The Living Dead of Night or…
For now, I’ve put a download link to the prototype on my homepage so you can see where I was going with it. Maybe I’ll build more hype for the game and try reaching out to them again.