I'm in the process remaking an abandonware game that I used to play when I was young on my family's DOS computer. It was published by a private company in the 1980s that folded a few years later amidst a legal battle. As a business in the United States, the company had registered materials for its products with copyrights. Today, the game's creator no longer has legal rights to the name, however, he continued to work on the franchise for a while, even hiring a programmer to create a GUI sequel that never quite finished.
I had decided before a single line of code had been written, that at launch, I would establish an open source project with an appropriate license. My intent is to duplicate the original game behavior, logic and art as closely as possible for authenticity's sake. Because I am rewriting 100% of the code, I feel my efforts would be best preserved for other retro game programmers to build on, even if the remake itself does not become popular. My existing code already emulates a console graphics system similar to curses on an HTML5 canvas, so even that code alone could be used by another programmer to create an entirely new game.
Because I want such a faithful port, I started researching the game and discovered that the copyrights to the name and other source materials (that I would like to make available to users of my remake) belong to a person wholly unassociated with the original development team and creator.
The original title is available for an emulator, and made free for download on the creator's webpage, as well as third-party abandonware sites. So are the printed source material (which were needed to pass the password screen built into some games back then). This indicates to me that the copyright holder is either ignorant of these violations, or choosing not to enforce the copyrights.
In addition, I have no desire to profit from this project in any way. For me, it is a project of self-education, and I would hope a meaningful contribution to gaming/programming communities.
I contacted an IP lawyer and asked the boilerplate questions about the contractual steps that would normally be used (licensing / transferring copyrights) to publish a remake, but I never brought up the legal background of the copyrights nor the idea that I would be effectively "giving away" the game, not selling it.
This has lead me to ask a pragmatic question:
Should I approach the copyright holder and purchase a license, or attempt to buy the rights outright and transfer them to the open source project/myself/the original creator?
On one hand, if I want to cover my legal bases and avoid having to later remove my project due to threat of a lawsuit, the answer is "yes," in one way or another. That is, assuming the copyright holder says yes. If not, do I willfully disobey, or begin changing things to make a clone of my own design?
Alternatively, there seems to be no evidence that in the past 18 years the copyright holder has ever done anything with the IP.
Finally, as I noted earlier, either he has an agreement with the original game creator to distribute copies of the game, or he honestly doesn't care.