Fair use - including the several mentions in this thread, is not very well understood. People know the term and claim it all the time, but frequently don't seem to understand that there's an actual determination of fair use made -
Here, the homebrew in question is (currently) "non-commercial", which supports its fair use case. It ALSO, however, might be seen to undermine the potential market of Dragon's Lair pinball machines especially if multiple games were made, or intended to be made. Doesn't matter if they were sold or not. Even if the OP gave them away for free, if there were several, this could be seen as taking potential sales away from DL. This would eliminate the Fair Use claim.
It's all very unclear - and likely this sort of thing would have to be ultimately be determined by a judge *in a US court* for there to be any definitive position, as the law leaves a lot of room for interpretation.
So the Kickstarter: this could point to an intention to build more than one machine and undermine the potential market for DL pinballs. Maybe if the OP was dragged into court and a judge had to make a ruling, they would feel it's undermining potential DL sales. Maybe the judge wouldn't think that. It's super subjective. The C&D has almost no teeth - it's a scare tactic, however DL could certainly decide to spend money to drag the OP to court if they felt like it. That would suck, and be very expensive, even if the judge ruled AGAINST DL.
I'm not sure of the international implications since he is in Europe - I would think this very very very likely that they wouldn't bother. But at the same time, they have an obligation to protect their Copyrighted art and Trademarked name. That letter achieved that. Some companies decide to let fangames go; some don't. But this is definitely different since it would cost real money to make the physical games, and there's only one way to make that back.
