Alien Hominid is NOT a fangame. It is an original game utilizing original graphics and coding and such. The creators own all copyrights to the product. Macromedia merely developed the platform it runs on. It's like the Unreal engine. Game makers liscense the Unreal Engine (3.0 for the next gen) and have the right to use it. Unreal gets the money from the liscense, not the game sales of the game that runs on it. Similarly, Macromedia does not own rights to Alien Hominid - rather, the platform it originally ran on. That's like saying Maya (3D modeling software) owns rights to Shrek.
And yes, fan games are copyrighted that don't use ripped graphics. Any original work by an author that is "fixed in a tangible medium of expression" is instantly copyrighted. You just can't make a lawsuit out of it unless you register with the copyright office.
If it is a parody or criticism, it falls under the category of "fair use." Fair use exists so existing copyrighted material can be used in comment, criticism, parody, etc. It would be hard to review a book without quoting it, right?
And disclaimers are not legally effective either. I quote from Stanford Copyright & Fair Use:
"A disclaimer is a statement that "disassociates" your work from the work that you have borrowed. For example, if you write an unauthorized biography of Mickey Mouse, you may include a disclaimer such as "This book is not associated with or endorsed by the Walt Disney Company. " Will it help your position if you use a disclaimer? In close cases where the court is having a difficult time making a fair use determination, a prominently placed disclaimer may have a positive effect on the way the court perceives your use. However, a disclaimer by itself generally will not help. That is, if the fair use factors weigh against you, the disclaimer won't make any difference. For example, in a case involving a "Seinfeld" trivia book (see Section C), the publisher included a disclaimer that the book "has not been approved or licensed by any entity involved in creating or producing Seinfeld. " Despite the disclaimer, the court held that the use of the "Seinfeld" materials was an infringement, not a fair use."
If your game does not fit the definition of Fair Use, there is one more thing to consider: Derivitive Work.
A ?derivative work? is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a ?derivative work?.
On another note, I'm not sure if the hardware companies get money from third party releases, such as Alien Hominid. It seems unlikely publishers have to pay Microsoft, Nintendo, and Sony to put games on their systems. If the game was developed and published by one of the above mentioned companies, they would definately get the profit. IDK about third party though.
OK, there goes my whole day. My rant is over.