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Copying Mechanics is Not Theft, Nor is it Infringement
by E Zachary Knight on 08/16/11 09:00:00 am   Featured Blogs

The following blog post, unless otherwise noted, was written by a member of Gamasutra’s community.
The thoughts and opinions expressed are those of the writer and not Gamasutra or its parent company.

 

I had never heard of Vlambeer or Gamenauts before yesterday. I had never heard of Radical Fishing or Ninja Fishing either. Yet in a single day, both companies and both games came crashing through my browser. Why?

To make a long story short, Vlambeer made a simple little flash game called Radical Fishing. They have a following of supportive and caring fans. They released this and made some money off of it.They decided they wanted to port the game to the iPhone but with improved graphics and gameplay. However they needed money now and made a couple more games browser.

While all this happened, Another game company, Gamenauts, saw a fun game that did not have an iPhone equivalent and decided to bring a game to that market that had those mechanics. This caused an uproar among fans of Vlambeer and their games.

That is the story in a nutshell.

What makes this story interesting is the reaction from gamers and game developers. First we have the reaction from Vlambeer themselves:

We don’t want to discuss cloning and patents, because we think the only thing that matters is that we feel that what Gamenauts did is morally wrong. The worst thing is reading positive reviews complimenting the super original design of the fishing gameplay – by people who have no clue that we even exist.

What we want to do is thank everyone for speaking up without us having to ask for it.

We also have a more in depth thought from one of their partners:

Specifically the “prematurely” part of this announcement. Basically we’re announcing this news before we’re ready to because a quasi-clone of Radical Fishing has been announced for iOS. It’s called Ninja Fishing and it’s a game that appears to play exactly like Radical Fishing but includes a ninja with a sword instead of a fisherman with a gun. When we saw the footage, our hearts sank because we knew we wouldn’t get it done in time to be first-to-market. Now I don’t want to get into the larger debate of patents and all that nonsense. Game design is game design and should influence others and be built upon. I understand that everything is a remix of everything that has come before it and there is no such thing as a purely original idea if you examine it deeply enough.

So my point is not that Gamenauts is doing something illegal or that original creators should be able to lock down design with patents or other nonsense, my point is about common decency and the little guy getting fucked over by a studio that is both creatively and morally bankrupt. This kind of thing is so common today that flash developers, essentially doing R&D for anyone that cares to watch, expect this kind of excrement to rain down on them if they wait too long, furthering the anxiety of making games on your own without a safety net.

So, while both blog posts express disdain for Gamenauts' move, neither are calling for anything bad to happen to them. Nor are they calling for increased protection from law. However, the internet community does not feel the same way.

Here on Gamasutra we have two blog posts specifically talking about this event.

In the first we have Evan Jones talking about how the move was completely unethical. This I can't understand. The entirety of game design's history has been chock full of wholesale copying of mechanics with more often than not only minor changes. To claim that Gamenauts acted unethically is to claim that Square, Blizzard, EA, Activision, Bungie, Sony and countless other big name and smaller name companies acted unethically when they copied game mechanics into their own games and found success.

What Gamenauts did was find a game they liked that was only available on the browser. They saw there was no similar game on the iPhone and no indication that that game was coming to the iPhone. So they used their considerable resources (as determined by a browse through their site) and made it happen. They saw an untapped market and tapped it. That is not unethical. That is good business.

The next article is by Andy Schatz and he calls for greater copyright protection of game mechanics.

I can't back this at all. Copyright is meant to protect the expression of ideas and not the idea itself. We cannot control the idea of "fishing by dragging as many fish as possible, throwing them in the air and shooting them." However, we can own a full game called Radical Fishing that uses that idea.

Can you imagine a world where JRR Tolkien controls the fantasy adventure or where animated animals were owned by Disney or Warner Brothers? I would not want to live in that world.

In a world where game mechanics could be copyrighted, the games industry would have completely stagnated shortly after it started. Our entire industry has thrived on the fact that game mechanics are not covered by copyright.

This is the state of the game industry. There is no reason why it should change. Did a company get beat to a market by a similar game? Yes, but that happens everyday in this industry.

We don't need added protection through copyright or patents. We just need to suck it up and do what we do best and make games.


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Comments


Alexei Andreev
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Imagine I wrote a short story and showed it to you. You really liked it, so you decided to submit it into a contest. And you won! Big! The thing is, you put your name on it, not mine. Is that moral/fair/right/legal? I want to say: neither of those.



I think the only disagreement I have with you is what constitutes "too much copying". You seem to think there is no such thing. Personally, I'm not sure when the line is, and wherever it is, it's probably pretty blurry, but I definitely think Ninja Fishing copied too much (or didn't change enough, however you want to look at it). If you add a touch of self-deprecating humor to that game, it would be easily classified as parody (everyone would recognize it as such). Except, the company still makes money off it.



Oh, and when it comes to creating stronger copyright protection, I am completely on the same side as you. That would just be shooting ourselves in the foot. I would rather have my game stolen, than have to worry if I can borrow/clone this or that mechanic.

E Zachary Knight
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In your story example, that is a wholesale copy. That is illegal under copyright law and definitely unethical.



However, there is nothing stopping me from taking the premise of your story and writing my own. That is not illegal and not unethical. It happens in every creative industry.

Sean Hayden
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It seems more analogous to taking a copy of the story, using a thesaurus to switch out words (graphics) and then rewriting a single chapter (slashing instead of shooting).

Cory Pendergraft
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That's a gray area. Remember when the owners of the Terminator and the Matrix franchises were sued for being conceptually similar to an older story called The Third Eye? That case is still working its way through the courts and has survived all attempts at dismissing it, so apparently the judges see some merit in it. Those two movies are extremely different, and yet they were both considered to be possibly infringing on this person's copyright.

Jeremy Hopkin
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That would be straight fraud. If you used someone else's wholly edited work and claimed it as your own you'd be committing fraud and there's plenty strong laws for that already...

E Zachary Knight
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Sean,



I don't think that fits at all.



These are two people writing a fishing tale. One decided to write about a pirate fishing and the other decided to write about a ninja fishing. The premise is similar, but the resulting stories are different enough.



Think of this in terms of old Western Movies vs old Samurai movies. In the 50's and 60's we saw a number of Japanese samurai films brought to the US in the form of westerns. The basic plot lines were the same but the resulting stories were different enough to be two different experiences.



See Seven Samurai vs Magnificent Seven

Sean Hayden
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True, but if we are making "plot" analogous to "game mechanics", then this pirate fishing to ninja fishing conversion would have an almost identical plot.



It seems to boil down to exactly how much it is okay to 'borrow'. Some would argue that Ninja Fishing did nothing more than replace to words "pirate" with "ninja", which would certainly not amount to enough difference to be a legitimately new story.



To use the movie analogy, it would be less like Seven Samurai vs. Magnificent Seven and more like Seven Samurai exactly as written, but with all the actors wearing cowboy outfits.



That said, since I've never played either one, I'm only relying on what I've heard. Suffice to say that, if you borrow enough game mechanics, or enough plot, it's ripping someone off. How much is 'enough' is up for debate though.

E Zachary Knight
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Have you ever watched Seven Samurai and the Magnificent Seven? It is almost exactly as you described. Yet they are two wholly different experiences.



As for how much of a game's mechanics is okay to "borrow" I would say whatever is necessary to make the gaming experience you desire to make.

Sean Hayden
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Well, Seven Samurai is 200 minutes long, and Magnificent Seven is 120 minutes long, so clearly they're not identical. And being rewritten from a Western perspective makes a rather big difference.



That doesn't seem like a very good place to draw a line. Particularly if my desire was to make a game experience that is identical to a pre-existing game. Even moreso if the game is mostly defined by its mechanics (like most flash games) rather than plot or aesthetics.



It might be okay if I create a game with mechanics identical to a game like, say, R-Type, which is well-tread ground at this point, and is partly defined by spectacle. But it would border on criminal if I took all the mechanical elements from a game such as Fantastic Contraption.

E Zachary Knight
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It is the copying of mechanics that makes a genre. It is only acceptable to you to copy the mechanics of R-Type because those mechanics have been copied enough times to become a genre. That is how genres are born.



To claim this is unacceptable is to say that the creation of a new genre is unacceptable and unethical.

Sean Hayden
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I disagree that directly copying mechanics is how genres are created. Even R-Type clones often had their own innovative elements. If the only sidescrolling shootemups were exact R-Type clones, I'd hesitate to call it a genre at all.



You can copy the basic idea behind a game and develop a genre without taking all the mechanics as-is. Compare Fantastic Contraption to Incredible Machine. Same general idea, same genre, different mechanics.



And again, R-Type is about much more than game mechanics. As with many shootemups, impressive graphics and audio is a big deal. If you make a game using R-Type's mechanics but new aesthetics, you're copying less than if you made a game with Tetris' mechanics but new aesthetics.

Kepa Auwae
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I'm really curious if you think companies like Domi Games also "make genres".



http://www.diygamer.com/2011/08/super-puzzle-platformer-copycat-d
ecide/



Is there a limit of how much of a carbon copy a game can be before it's no longer "giving birth to a genre"? In the rules of this discussion, would 100% copies of other games count as a genre?



Also you guys do know that some of those "Japanese Samurai films that were brought to the US in the form of westerns" sued the westerns, right? See Yojimbo versus For a Fistful of Dollars. The former sued the latter and won, yet they were "wholly different in feel". You should also probably look up whether or not Magnificent Seven had to secure rights from the director of Seven Samurai, especially since he was the guy that sued successfully in my previous example.

Gerald Belman
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"Cloning" is not new to game developement. If you are going to make your game extremely simple, you better be ready for it. If you don't release your extremely simple game on multiple platforms within a reasonable amount of time from each other, you are just asking for it.



It's pretty hard to make your game original when you are making games this simple. It's kind of like the three chord riff in music. Nobody has any claim to the G-D-C chord progression.



The more complex you make your games and game art. The more you will be protected by copyright/patent law. So don't make shallow games if your worried about being copied.

E Zachary Knight
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That is a good point. The simpler you make your game, the more likely you are treading on already trodden ground and the more likely someone else will tread that path in the future. That really adds to my thoughts on why this situation is ethical and expected.

raigan burns
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I think you're confusing "legal" and "ethical". How is copying someone else's work ethical? I don't dispute that it's legal, but it's at the very least in poor taste and morally questionable.



Vlambeer sunk R&D time into developing a game concept. Someone else has stolen that R&D effort and used it to bootstrap their own game. That's completely legal, but also completely lame. Just because there wasn't a product in a certain market doesn't make it right to copy someone else's product.



I agree that this sort of thing happens all the time, but MUCH less directly -- i.e Killzone and Resistance vs. Halo.



Imagine if someone released a PS3 game called Ring that completely copied the aesthetics, gameplay, character types and setting of Halo. Do you really believe Microsoft would take no legal action? The only reason that's not happening here is that the target is too small and defenseless to pose a threat.



What's happened is more analogous to a cover version of a song -- they haven't lifted just a chord progression, they've lifted the song structure and melodies (mechanics) as well as the lyrics (setting) and recorded their own version of that.



Sadly this is perfectly legal because *unlike* music, there are no IP laws concerning such "covering" of a game. But that doesn't make it any less despicable or socially acceptable.



Being driven solely by profit is an inherently anti-social and inhuman -- perhaps sub-human -- mode of behaviour. It's insectile and disgusting.

E Zachary Knight
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Alright. Here are some facts for you:



http://dictionary.reference.com/browse/ethical



1.

pertaining to or dealing with morals or the principles of morality; pertaining to right and wrong in conduct.

2.

being in accordance with the rules or standards for right conduct or practice, especially the standards of a profession:



Seeing as definition 1 of the word ethical is merely a descriptive definition, definition 2 applies directly here. In this case, the game industry is based on the concept of copying mechanics into new games. Since the behavior of Gamenauts is not outside the normal business practices of game designers, I fail to see how their behavior is unethical.



As for your examples:



Your Ring vs Halo example is nothing like this situation. In your example the developer of Ring "completely copied the aesthetics, gameplay, character types and setting of Halo." In the Radical vs Ninja fishing, only the game play mechanics were copied. Very different.



In the cover version example, a person who covers a song plays the song exactly (or almost exactly) as it was written, both music and lyrics. In this case, only the mechanics were copied. This would be more akin to the Grunge movement. Where multiple bands copied the Grunge style of music, but were not copying lyrics or music.



"Being driven solely by profit is an inherently anti-social and inhuman -- perhaps sub-human -- mode of behaviour. It's insectile and disgusting. "



Wrong. Profit is the primary driver of any capitalistic organization. If you are a commercial game developer you are seeking profit from your games. That is neither anti-social or inhuman.

Gerald Belman
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My point is really that sometimes people think they own certain ideas and concepts, when in reality they've been around for quite some time; or they are so simple and natural that they don't deserve our protection from copying.



Copying Halo's "aesthetics, gameplay, character types and setting" is kind of an outlandish analogy you are trying to make. Those are all much more complicated and specific things than the game play of these two fishing games.



No doubt the copying of Radical Fishing was lazy (which is why I would be against it) but it is not really illegal or even unethical(in my opinion) given the simplicity of both games. We should encourage copying of simple games as long as it reduces the price or availability of simple games as a whole to the consumer.



And just so you don't think I am a sith ("only a sith speaks in absolutes"). One example of copying I do not agree with was Limbo of the Lost. The continued sale of that game would have had a detrimental effect on the industry and (through that) the consumers as a whole.



As for Profit being the SOLE motivator. Do not profit on other people's pain and suffering. If into the security monitor you look, Only pain you will find (insert bizarre yoda affirmative grunt here).

Giordano Ferreira
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Previously, I didn't play any of the games.



In my opinion, the ego is the biggest problem in these cases. The people think that they own the ideas they had, but as soon as the ideas leave the mind and are spoken or written somewhere, they belong to everyone.

What's wrong if another person liked one game and had an idea to improve the concept of that game, Or want to leave the game to another audience?

If the clone is better than the original, players will thank!



Nothing and no one prevents the developers of the original concept to improve their idea and launch on the same market of the clone.

Andy Schatz
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I agree that game mechanics should not be patented. But I don't see why you feel that game mechanics are any less of a creative expression than art or sound or music. I believe they are, and as such should be protected in a similar way to art, sound and music.



That said, my article doesn't call for copying to be impossible at all, I'm just calling for SOME protection being offered in the form of royalties to the original creators if someone wants to rip off an entire game, wholesale. I'm also calling for some protection so that the creator is allowed to be the first to commercially profit from the game. In the case of NF/RF, Radical Fishing was already paid for and publicly available, so their game design was, and should be, fair game for cloners.

E Zachary Knight
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I still don't see how you can add any sort of protection for that without causing the same kind of legal headaches found in music licensing and patent disputes. Both situations cause an obscene amount of time and money being wasted in legal circuits when that time and money could be better spent making games.



Additionally, there are already protections from wholesale rip offs in copyright. However what happened here was not a wholesale rip off.



Finally, based on what you describe, only gameplay mechanics that have not been revealed publicly would qualify for protection. So who determines who was the first to create the mechanics? Unless I am just misinterpreting your comment.

raigan burns
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>In the Radical vs Ninja fishing, only the game play mechanics were copied. Very different.



I completely disagree.



More than just the gameplay was copied: the SETTING (in Japan it's called "scenario") of the game was also directly copied, for no reason other than laziness or ineptitude. Seriously: you could use that same gameplay in so many different ways: maybe you're attracting mice with a piece of cheese on a string? Maybe you're a surgeon in the future trying to clean bad bacteria out of a wound? etc.



But because Gamenauts lacked the imagination, intelligence, self-respect, or just plain decency to make their own setting to go with the borrowed gameplay, they just borrowed the setting along with the gameplay. So in effect they added nothing, contributed nothing to the "genre". They just cloned an existing game.



It demonstrates a total lack of integrity or pride, or maybe just a sociopathic obsession with cost effectiveness -- after all, developing a new setting would cost more (time and effort) than directly transcribing the setting provided by Vlambeer, which cost nothing for Gamenauts to conceive of and which is known to work with the gameplay.



This was the point of my Halo example: they haven't simply copied the gameplay mechanics (FPS), but they've also copied the enemy types, weapon types, setting, etc.



I don't understand how you can dispute this. As per my cover-song analogy, they absolutely did not JUST copy the mechanics. The entire concept of the game is duplicated -- they redrew the art, re-recorded the audio and added a stolen bit from another game (fruit ninja). This is entirely analogous to a cover song -- adding nothing to the original, just being a different version of the same thing.



(also, copying the Fruit Ninja mechanic cannot reasonably be seen as deviating from a "cover song" mentality -- if I record a song that's half a cover of song A followed by half a cover of song B, this hardly makes it my original creation)





There is a *huge* difference between riffing off of something and mechanically duplicating it. It's "Everything is a Remix" vs "Everything is a Carbon Copy".



In normal human society, if I appropriate your ideas without due attribution, that's considered at the very least rude, if not fraudulent.



Just because this sort of wholesale theft is common doesn't make it any less revolting or stupid or harmful in the long run to games and gamers. I'm all for inspiration and riffing off of tropes, but there is a night and day difference between being inspired or influenced by something and directly reproducing the original word-for-word in your own handwriting.



The implied point of my "inhuman" comment is this: all humans have values and beliefs which become the metrics with which they make decisions. These value systems are complex and nuanced and are most importantly socially conditioned to ensure that individuals within society tend to behave in a way that's not detrimental to the society.



The point is that there are a plethora of behaviours that are considered rude or vile which are still perfectly legal.



Businesses in contrast have but a single sensory organ: the balance of their bank account(s). Similarly they have but a few basic behaviours used to try to increase their wealth -- most of the time this is more or less hill-climbing. This gives them the attributes that one would ascribe to an insect or perhaps reptile, because they behave in ways no human would for fear of shame or humiliation. That's just what happens when you're free to do anything that's not explicitly illegal -- you end up behaving in ways which are disgusting but allowed.



Gamenauts have demonstrated this remarkably well: there was money to be made, and they made it. No matter how shameful or abhorrent their behaviour might be to their community -- as long as it generated a net profit, it was worthwhile.

E Zachary Knight
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In regards to settings: We are talking about a fishing mechanic being used in two different games. It is not that hard to imagine both taking place while the character is fishing.



Could they have used a different setting while still using the same mechanics? Yes. However, Gamenauts was not out to make a Doctor game. They were out to make a fishing game.



Again for your Halo example, Gamenauts did not copy the "enemy types, weapon types, setting, etc." outside of standard features of fishing game (rod and reel, bait and fish.) Can you honestly conceive of a fishing game that did not use those objects? I can't without completely changing it from a fishing game to something else. So again, Gamenauts wanted to make a fishing game, not some other game.



Again for you cover song analogy, if you really want to tie this to music, this would be more like parody or satire, but closer to my style analogy. They took a "sound" and made their own "music" using that "sound" They did not take "song A" and record their own "song B" using the "music" and "lyrics" from "song A"



"if I record a song that's half a cover of song A followed by half a cover of song B, this hardly makes it my original creation)"



You are referring to the practice of creating a "mash-up" which while in the music world has some legal barriers, it is still a valid form of creation and many musicians and DJs get their start and make a living doing so. While groups like the RIAA may vilify them, their fans love it.



Also, there is no place in my arguments where I state "wholesale theft" is common or ethical. What Gamenauts did was not "wholesale theft" in any way.



You also cannot rely on human values to determine what is ethical and immoral. Humans are a highly subjective group of individuals. What one person considers ethical another may consider unethical. Hence the discussion we are having now.



I know of plenty of businesses that are interested in more than just profiting. Many game designers are in the business of making games to entertain their fans, profiting off that is secondary to their primary goal. These people are not soulless individuals or heartless monoliths. They seek a profit because it allows them to do what they truly want to do, entertain others.



Gamenauts may well be one of those heartless monoliths, but that is not may place to say. For all I know, they could be a group of people who actually care about bringing fun experiences to as many people as possible. After all, they saw a great gaming experience and brought it to a platform on which it did not exist.

Rich Boss
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"Could they have used a different setting while still using the same mechanics? Yes. However, Gamenauts was not out to make a Doctor game. They were out to make a fishing game."



"Wrong. Profit is the primary driver of any capitalistic organization."



Gamenauts was out to make a profit not a fishing game. Your argument style is rather flawed. I have some theories on how to correct it but I don't want to tell you what they are because you might steal it and take it to market before I do.

E Zachary Knight
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No. They were out to make a profit by making a fishing game. Big difference.



Here is a question, would you feel the same way if Ninja Fishing came out on the browser or after Radical Fishing came out on the iPhone?

Rich Boss
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If the game industry were not so bankrupt of creativity right now, I wouldn't care at all. It is flush with production though and correcting that imbalance prevents catastrophe. I prefer balance but crashes are super fun too.

JB Vorderkunz
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Ephraim,



Given your stance here, what is your take on the classic case of Harlan Ellison vs. James Cameron?



By your rubric i'd assume that you see it as a gross miscarriage of justice (after all, I Have No Mouth and I Must Scream is *wildly* different on many levels than The Terminator). But I will say that your argument contains a technical fallacy: just because a practice has historical precedence has no bearing on the ethical nature of that practice.

E Zachary Knight
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After doing a little research on Ellison and the story "I Have No Mouth and I Must Scream" as well as the Outer Limits episodes "Soldier" and "Demon with a Glass Hand", I would say my opinion is unchanged. I see no significant similarities between any of those stories with that of the Terminator franchises that I would consider copyright infringement. The only similarities are with plot devices (time travel, robots, super computer taking over the world) Plot devices are not, at least should not, be covered by copyright.



I also see that the case was settled out of court, so there was no actual ruling stating whether Ellison or Cameron were in the right. I also know that these types of lawsuits are common in film and books. Which is why almost all films and television shows have a disclaimer stating that the film was fiction and any similarities to real people are coincidental. It is a stupid practice, but a litigious society has made those practices a necessity.



As for this "just because a practice has historical precedence has no bearing on the ethical nature of that practice." That is not a fallacy. That is how norms, mores and laws come about. When humanity acts in a way long enough it becomes the norm. It becomes ethical. However, mores and norms change over time. Often it is to become more lenient that before, such as the practice of homesteading or removing prohibitions.



Of course that does not stop people from complaining about the new norms. "Hey, why should those people get free land from the government when I had to work hard to by my land?" Or "Hey, I don't drink or do drugs, why should those people be allowed to?"



In the end, I see no problem copying plot devices or game mechanics for use in your own creative works. If that were not possible, then creativity would stagnate as all the plot devices and mechanics would be locked up under copyright and it would be cost prohibitive for all but the most powerful to create new work.

Luke Shorts
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The more I read about this case, the more I find it interesting, because the reaction the community shows is opposite to what it would have had if instead of Vlambeer, the owner of the original game had been - all other items remaining the same - a big name studio.



First of all, I' d like to say that I agree (to the spirit, if not to the letter) with the closing sentence of the article ("We don't need added protection through copyright or patents. We just need to suck it up and do what we do best and make games"), and also with the positions expressed in the two reaction cited.



However, while this is a legitimate opinion (and it would be even if I did not agree with it :P), the assessment that game mechanics can and should be copied because that's what the industry assumes you to do ("The entirety of game design's history has been chock full of wholesale copying of mechanics with more often than not only minor changes.[...] Square, Blizzard, EA, Activision, Bungie, Sony and countless other big name and smaller name companies [...] copied game mechanics into their own games and found success") is a generalization of the RF/NF case that ends up being misleading.



"Copying mechanics is not theft", yes, it's likely it wouldn't be considered as such - at least in the US - even if they copied the whole game and sold the copies (see USSC decision "Dowling vs United States"), "nor it is infringement", so no reason to worry, right? Wrong. You can get sued for that, if the game mechanics has been patented... famous example: US6200138 ("A game display method for displaying a game in which a movable object is moved in a virtual space, comprising the steps of: setting a dangerous area around the movable object; and when a character enters the dangerous area, moving the character in a direction in which the character is moved away from the movable object"). Before anyone tells me that "infringement" above means actually "copyright infringement", let me answer that I don't believe any company in its right state of mind would make a business decision on a product on the grounds: "Oh yes, no problems with copyright... we end up infringing a couple of patents, but who cares!" In the example above, some points are worth noting:

1. The patent was filed in 1998, so if they paid the fees until 2018 there's no way of using that mechanics in the US for free

2. Patents are not about copying: even if you innovate a product (i.e, add new and inventive stuff), as long as the features of the claim can be found in your product, you are still infringing

3. There has been an actual lawsuit (settled out of court) based on this patent. I could check if there's more on it, but I'm lazy... in any case, even if it had been invalidated in further proceedings, it wouldn't really matter. Take a tour of US patent classes 463 (such as 463/3, 463/23) and have fun.



Focusing on copyright infringement, it may happen with far less than wholesale copying. It's true that copying of game mechanics as such won't get you in trouble (if nothing else because it's supposed to be protected by another IP right), and it's also true that in the RF/NF case the game is so simple that there's not much left on which an argument can be built. Still, copyright protects also against partial copies and derivative work, so I wouldn't be surprised if at some point the argument "same mechanics" popped up to support a copyright violation claim, since the way game assets are used contributes to the overall "artistic impression" generated by a game.



TL; DR: RF/NF arose from a lack of entrepreneurial vision and/or resources on part of the original game dev. Since in this story Vlambeer plays the part of the underdog, the outcome doesn't sit well with some people, who have the gut feeling that a "wrong" has been committed and they'd like a legal remedy for it. The irony in all this is that such remedy exists, but it is used mostly by big companies, who are accused (sometimes even by the same people) of "killing innovation" when they use it. I believe, pretty much like Ephriam Knight, that the outcome of this story shouldn't generate a call to arms for more protection of game mechanics; I don't think however that such an outcome is a natural consequence of the way the gaming industry operates or that the specifics of it can be used to draw conclusions about IP rights and the gaming industry at large.

E Zachary Knight
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I also don't think that game mechanics should be protected by patents. Software patents, where game mechanics would fall under, are one of the worst offenders of our already messed up patent system. There have been numerous studies showing that software patents and patents in general do more to harm innovation than they do to protect it. A lot of money and time is spent fighting patent lawsuits that could be spent making products people want to buy. Just look at the Apple vs Samsung patent dispute. All over aesthetics.

Luke Shorts
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I also don't think so. Bad news is, they are there anyway.



In many case they are valid in the US only, but have an impact also on non-US companies, due to the size of US market.



I introduced patents into the discussion because I thought that it was a big omission. I also used it to show why I don't consider the RF/NF case as an example valid for the gaming industry in general. Big companies have the money also to try and secure a patent portfolio, which could have led to a very different outcome in the case. I find it also useful because given the reputation patents have among programmers, it might lead the proponents of a legal remedy to pause and reflect on what exactly they are campaigning for.



Side note: as for the Apple vs Samsung, a big part of the dispute - at least the one that made headlines in EU recently - is not about a patent, but what is called a Community Design (No. 000181607-0001, to be precise), which is a kind of IP right covering, essentially, aesthetic aspects of a product (a patent is supposed to protect technical ones). The difference is crucial for many reasons, including the fact that for patent infringement Apple wouldn't have been able to obtain a EU-wide injunction just by applying in a German court. Anyway, the merits of the case aside, the purpose of design rights is different, so imho they are not relevant in a discussion on the topic of "game mechanics & IP".

Lars Doucet
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Answer me this:



At what point is it "okay" to clone a game? Nobody would accuse someone of being "immoral" or "unethical" for cloning Mario or Final Fantasy at this point, now that those games have turned into established genres.



Is it only immoral when you borrow a novel idea from a small indie developer?

Damian Connolly
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Lets take two stories posted on Edge a few days apart. The first is from the Gamenaut/Radical Fishing story: "Another indie curio finds itself cloned before it can get itself to market" (http://www.next-gen.biz/features/friday-game-radical-fishing), the second a story about Fortress Craft: "The Minecraft homage, the work of Projector Games, has grossed a million dollars in six months, the developer has announced." (http://www.next-gen.biz/news/xbox-indie-game-fortresscraft-grosse
s-1-million)



From what I can see, Fortress Craft is pretty much a carbon copy of the building aspect of Minecraft, just with better graphics, yet it's seen as a "homage", not a "rip-off". Are you only morally bankrupt if you're richer than the person you're cloning? If you bring it to a new console/device (there was also an Android Minecraft clone if I remember right) before them?



Hands up if you thought about making a Canabalt clone. An Angry Birds clone (which took it's mechanics from other flash games btw). A Tiny Wings clone (which possibly took it's mechanics from a one week game demo - http://nmccoy.net/2011/02/24/on-the-whole-wavespark-tiny-wings-th
ing/). A pacman clone. Should I keep going?



As raigan mentioned, they added in a dash of Fruit Ninja for good measure. But isn't that how we start with ideas? "It's like X but with Y". If you're trying to make an iOS game, you look at what works (Fruit Ninja, Angry Birds) and you try and see how to differentiate yourself ("Hey, I played this great flash game a while back..."). Is it just because it's a bigger company. If it was just another guy, on his tod, that released this, would there be the same outcry? Would there be the same problem if this was the fifth type of game like this, or is it just because Vlambeer managed to get something addictive and original?



Gamenauts copied mechanics. Just like every single one of us.

Sean Hayden
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To be fair, there are plenty of people who see FortressCraft as a ripoff. Myself included.



Also, I imagine that the outcry is magnified because of how much this affects Vlambeer. The reason people have less sympathy for a large company isn't necessarily because we're okay with "cloning" in that instance. It's because the amount of money they lose is small compared to the amount of money they have. With Vlambeer, it's implied to be the opposite, so that makes the circumstances seem much harsher.



But, in the end, it all does often seem to come down to this:

http://penny-arcade.com/comic/2010/01/08

E Zachary Knight
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Honestly, I think that gives Vlambeer a reason to be a little more risky and innovative. They have an opportunity to bring their game to a new platform with a already existing fan base. They have the opportunity to make a game they think is far better than Ninja Fishing. They have a chance to prove they are the better game designer.



Why complain when you can fight?

Lars Doucet
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And Jesus turned to them and said, "Let he who hath never copied a game mechanic throw the first stone."

Luke Shorts
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The more I read about this case, the more I find it interesting, because the reaction the community shows is opposite to what it would have had if instead of Vlambeer, the owner of the original game had been - all other items remaining the same - a big name studio.



First of all, I' d like to say that I agree (to the spirit, if not to the letter) with the closing sentence of the article ("We don't need added protection through copyright or patents. We just need to suck it up and do what we do best and make games"), and also with the positions expressed in the two reaction cited.



However, while this is a legitimate opinion (and it would be even if I did not agree with it :P), the assessment that game mechanics can and should be copied because that's what the industry assumes you to do ("The entirety of game design's history has been chock full of wholesale copying of mechanics with more often than not only minor changes.[...] Square, Blizzard, EA, Activision, Bungie, Sony and countless other big name and smaller name companies [...] copied game mechanics into their own games and found success") is a generalization of the RF/NF case that ends up being misleading.



"Copying mechanics is not theft", yes, it's likely it wouldn't be considered as such - at least in the US - even if they copied the whole game and sold the copies (see USSC decision "Dowling vs United States"), "nor it is infringement", so no reason to worry, right? Wrong. You can get sued for that, if the game mechanics has been patented... famous example: US6200138 ("A game display method for displaying a game in which a movable object is moved in a virtual space, comprising the steps of: setting a dangerous area around the movable object; and when a character enters the dangerous area, moving the character in a direction in which the character is moved away from the movable object"). Before anyone tells me that "infringement" above means actually "copyright infringement", let me answer that I don't believe any company in its right state of mind would make a business decision on a product on the grounds: "Oh yes, no problems with copyright... we end up infringing a couple of patents, but who cares!" In the example above, some points are worth noting:

1. The patent was filed in 1998, so if they paid the fees until 2018 there's no way of using that mechanics in

Jake Birkett
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Why does everyone assume Gamenauts is a big company? It's not, it's one guy (an indie who has been in casual games for quite a few years) who outsources various elements of making the games - like many of us.

E Zachary Knight
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That adds some new light to this. So we don't really have "big dog" vs "little dog" situation. We have a little dog vs little dog with connections situation.



That doesn't really change my opinion, but it is interesting.

Adam Sullivan
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In light of this thread, I'm curious about people's thoughts on DOTA, League of Legends, Heroes of Newerth, Rise of Immortals and DOTA2.

E Zachary Knight
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What are your thoughts on Halo, Gears of War, Battle Field, Call of Duty etc?

Eric Spain
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You say that many game companies have copied mechanics with minor changes. Gamenauts did it with zero changes. It's exactly the same gameplay. If they had improved it in some way, change the concept slightly, or added to it, then while it would still be contentious, at least they could say it's not exact. This isn't the case here, the gameplay in both is exactly the same, without even minor changes.



Often gameplay is interesting and complex enough that time was taken to develop it. Vlambeer spent time and energy getting the gameplay *just* right and it's this effort that should be protected. In the same way that it takes time to create art, or scribe literature, gameplay takes time and effort to develop.



I don't think individually gameplay elements deserve to get protection, nor individual mechanics. That would cause a huge mess, like with the current patents situations. Nor do I think clones that change/improve on the original count, as the gameplay should be altered enough that a reasonable person would say "Yes, there's a difference between the games."



The entirety of the gameplay should be subject to copyright, in the same way as other creative works. You shouldn't be able to copyright a jumping or collecting mechanic or even something like the first person aspect of an FPS, for example, because it would be like trying to copyright a music phrase or a sentence. But if you take the gameplay as a whole, just like a book or a song, there's a certain amount of change required. Clones that are close, but not quite the same, fall into this category.



Where songs have lyrics, melody and harmonic progression, and books have plot, characters and setting, just copying one of those completely would set you up for copyright infringement. You don't even have to copy the whole book/song if the part you took was a direct copy. In this fashion, games are made of art, audio and gameplay. If you took the lyrics from a song and set it to a new beat, you'd be in trouble. If you took the characters and entered them in a new story to be published, that would be infringement as well. Yes, this does make fan-fic infringing. The same should apply to gameplay.



That said, what Gamenauts did is a 'dick move', which is what makes it unethical. If everyone copied gameplay exactly without improving it, all the games would be the same, just with different skins. Even the variety of modern day combat shooters differ in how they play in regards to health reaction, cover mechanics and gun use. The games industry is already suffering from a lack of creative exploration, so the less encouragement given to copiers like Gamenauts, the better.

E Zachary Knight
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Gaining a copyright on gameplay mechanics would be like getting a copyright on the Hero's Journey. On its own it is not enough to warrant copyright protection.



Even still in this case the gameplay has been altered. Instead of a point and shoot mechanic when the fish are thrown in the air, you use a swipe mechanics. Does it accomplish the same objective? Sure. But so does every story that uses the Hero's journey plot arc.

Jonathan Jou
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Good article, Ephriam! This is definitely one of those topics that can and should be debated until consensus is found. On the other hand, while it's one thing to point out that game mechanics are a dime a dozen and one good mechanic doesn't define the makings of a good game designer, it's kind of important to take into account how and why this happened; there are lessons to be learned, some kind and some less comforting.



From what I've read, Gamenauts contacted Vlambeer to ask if it could give credit for being "inspired" by Vlambeer's flash game, and Vlambeer asked for enough time to get its own game to market. This means that Gamenauts was faced with what was pretty clearly an ethical decision: release an eerily similar version of a game and benefit by beating its originators to market, or let Vlambeer get the fame and fortune it would earn if, instead of a simple flash game, it was porting an IP which was much harder to clone.



Has this happened before? It's the definition of why copyright and patents exist. Whether or not applying it to game design would help or devastate the industry is certainly important to think about, but in this case it's a little too obvious that Gamenauts wasn't releasing a better version, a later version, or even at least some sort of homage to the original. In the decision to respect Vlambeer's wishes, or to choose to profit at Vlambeer's expense, Gamenauts has chosen, and the results are clear. So the lesson here is that game mechanics are like business proposals: "if someone can steal it from you, they will, so make sure they don't find out they can until it's too late." Vlambeer's wish to develop in secrecy in many ways cost it its game, and had they announced it once the flash game took off this probably would have played out differently. In games, calling dibs is sometimes all you can hope to do.



Of course, this isn't the end for Vlambeer. One of the most important things I've noticed is that people who come up with good ideas are the best ones to improve upon their designs, or even come up with new ones entirely. Blizzard has made a living by simply being the best in any genre it deigns to step into, and that's certainly got to do with its honest release schedules, but also speaks to the amazing culture of quality and talent it possesses. I'm pretty sure that Vlambeer's Ridiculous Fishing could and should beat its imitators if he accepts that the novelty value is lost, but also recognizes that Gamenauts is never going to be able to improve upon the original game vision any better than Neversoft could make a true Guitar Hero game.



Ideally, I'd like the world to be one in which an original game mechanic gets its creator the credit it deserves. I'd like it if Rovio had credited Box2D for its physics engine at the outset. Whether or not law and licenses get involved takes a matter of being a decent human being and tangles it in the web of patent trolls and suchlike. In this case, it's pretty obvious that Gamenauts gave Vlambeer a rather big and brazen screw you instead of doing unto others as he would have them do unto him.



Of course, I could be wrong about that. Maybe we should go give all of his games freemium(er) face lifts because we can.

E Zachary Knight
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I don't think Gamenauts had any obligation to credit Vlambeer, just as no company has any obligation to credit another. We don't credit our competitors when we compete. We prove we are better than them.



I also think that Vlambeer was right in not allowing or refusing the "inspiration" credit. Such a move would have severely limited their ability to compete in the iPhone market or any other. It would have also led to a massively restricting design environment for many small developers.



But yes, you have the right idea that we all have choices when it comes to design. We have to make the choices that we feel are best for our companies and especially our fans.

Jonathan Jou
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Why does it sound like you'd be okay with my going through the top 20 best-selling games, writing a "bestseller bundle" which lifts everything but the art and names wholesale, and then release it for $1.99? When R&D is the most costly part of a product, it makes so very little sense to me that anyone could believe that R&D shouldn't be protected. That would be akin to someone who'd gotten access to the iPhone's design releasing a GenericTouchPhone(TM) before the iPhone with a few cosmetic changes, or Mark Zuckerberg releasing Facebook after seeing what ConnectU was about and "beating it to market."



So yes, it's clear that Vlambeer is unlikely to ever make the mistake of not announcing an iPhone game before they work on one. But cutthroat business practices shouldn't be simply called "the status quo" without recognizing that "dog eat dog" is really a euphemism for unbridled exploitation. In many industries that's how companies get ahead of their opponents, but in game development where creativity plays such a great part it's disappointing to have to accept that you can stake a plot of land, strike gold, and then have it dug out from underneath you.



I really do see your point, and I recognize that it's quite good business to do what Gamenauts did--they found a great game, and ported it quickly and efficiently, while marketing it into the top five spot. But good business very rarely translates into friendly competition, and I certainly don't believe Vlambeer and Gamenauts are ever likely to be on cordial terms. Maybe burning bridges is the status quo, but that doesn't translate into it bring morally righteous, only justifiably gray.

E Zachary Knight
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Well, based on the top ten apps on the iPhone, that wouldn't be an issue as they are all derivative of other existing games.



http://www.gamasutra.com/view/news/36648/TopGrossing_iOS_Games_Ta
p_Pet_Hotel_Leads_iPhone_Revenue_Charts.php

Michael Joseph
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From Wikipedia: http://en.wikipedia.org/wiki/Tower_defense

-----------------------------------------------------------

Gameplay



Before tower defense games existed, ASCII released a game in 1983 that is today described as a "reverse tower defense" game, Bokosuka Wars, wherein the player must storm an enemy castle, avoiding towers built to shoot at them as they pass, rather than defend it.[6] Tower defense games properly began in 1990 when Atari Games released Rampart.[7] Another early example of a tower defense game was Final Fantasy VII's Fort Condor minigame in 1997.[8] By 2000, maps for StarCraft, Age of Empires II, and Warcraft III were following suit.[9]



The first standalone tower defense game for PC was Master of Defense, released on November 7th of 2005.



Eventually, independent game developers began using Adobe Flash to make stand-alone tower defense browser games,[10] which led to the release of Flash Element Tower Defense in January 2007[11] and then Desktop Tower Defense in March of the same year.[12][13][14] Desktop Tower Defense became immensely popular and earned an Independent Games Festival award,[15] and its success led to a version created for the mobile phone by a different developer.[16] Several other tower defense computer games achieved a level of fame, including Protector,[14] Immortal Defense,[17] GemCraft,[18] and Plants vs. Zombies.[19]



By 2008, the genre's success led to tower defense games on video game consoles such as Defense Grid: The Awakening on the PC and Xbox 360,[20] and PixelJunk Monsters and Savage Moon for the PlayStation 3.[9] Tower defense games have also appeared on handheld game consoles such as Lock's Quest and Ninjatown on the Nintendo DS,[21] and there are dozens of games for the iPhone/iPod Touch and Android.



In November 2010, the genre was first brought to the blind gaming community with the release of Aprone's Towers of War.[22]



USPTO - Trademark



On June 3, 2008 - COM2US Corporation was awarded the trademark for the term "Tower Defense", filed on June 13, 2007 - serial number 3442002. The corporation has been reported to start enforcing the trademark;[23] specifically on the iPhone/iPod Touch platform as a number of small or independent developers are now receiving messages from Apple citing trademark violation:





Additionally, your application appears to contain features, namely a trademark name, that appears to infringe on rights owned by Com2us corporations, specifically TowerDefense. Please remember that pursuant to your agreement with Apple, you represent and warrant that your application does not infringe the rights of another party, and that you are responsible for any liability to Apple because of a claim that your application infringes another party's rights. Moreover, we may reject or remove your application for any reason, in our sole discretion. Upon resubmission of your application, please provide documentary evidence that you have the rights to use this content to ensure compliance with the iPhone Developer Program License Agreement at the time you resubmit your new binary to iTunes Connect.

------------



"This is the state of the game industry. There is no reason why it should change. Did a company get beat to a market by a similar game? Yes, but that happens everyday in this industry."



Indeed.

Rich Boss
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I see several arguments in the comments arguing WHY this is unethical, but I only see arguments about HOW this behavior is ethical.



http://www.youtube.com/watch?v=u4ZoJKF_VuA

E Zachary Knight
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Rich, You've lost me there.

Rich Boss
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Where did I lose you?

E Zachary Knight
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I don't really understand the point you are making. I thought I quite clearly explained why I think this behavior is ethical.

Rich Boss
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I know you think you clearly explained why this behavior is ethical. That is the problem. The opposition's argument is clearer and is a more efficient manipulation, primarily because they describe WHY this behavior is unethical. Your argument would be much stronger if you explained WHY the behavior is ethical along with your description of HOW it is ethical.

E Zachary Knight
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The extent of the arguments of why this is unethical has come down to emotion, poor analogies and grand standing.



I have explained why this is ethical based on the history of game design and creativity itself.

Rich Boss
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Well if you aren't open to modifying your argument FOR YOUR OWN BENEFIT, I can not help you.

E Zachary Knight
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In what way would my argument need modification? That is what I don't seem to understand. You claim there is some overall flaw with my point of view, offer no feedback and expect me to see it and respond to it.



How can I be helped if I do not understand WHY I need help?

Michael Joseph
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Somewhat related, but This American Life recently aired a show where they talked briefly about these Vietnamese restaurants in Brooklyn copying each other's menus... like... litterally copying the menu down to the same font. Thought it was funny



can listen to it here... that part is right at the beginning and only a few minutes long

http://www.thisamericanlife.org/radio-archives/episode/412/millio
n-dollar-idea

E Zachary Knight
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This American Life is great. They recently had a whole episode on the perils of Patents.



http://www.thisamericanlife.org/radio-archives/episode/441/when-p
atents-attack

Kepa Auwae
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The support that Vlambeer is mostly because they're well-liked, to be honest. That and possibly their entire gameplay loop being copied (down to most of their upgrade store), rather than just elements. With how the App Store works (first popular game wins), I'd be extremely surprised if their upcoming Ridiculous Fishing game made much money, at this point.



I'm curious, though, is there any limit at which you consider a clone too close to the original? For example, Domi Games doing nothing but taking existing games, their mechanics, levels, and art, but changing the art style just slightly. Is this ok?



If it is ok, is there any reason to NOT do that? We could all belt out a huge number of game releases if we'd just take flash games, swap some art around, and release them as iOS games. Seems like there's only upsides to this, no downsides.



Even if the original flash game in this hypothetical was a 40% clone of another game, making a 98% similar clone of a clone is much faster and easier. All the guesswork is removed. With how the iOS store works, being first to market is a huge boon, and being the first *popular* game of a type on iOS is basically an unassailable position. The only disadvantage to this process would just be some public disapproval, which you're apparently saying shouldn't be done, either.



So I guess my question is, to anyone that cares to answer it, is why bother making games at all if you can just copy others note for note? If there's no reason to, then I will personally just start making Domi Games style clones.



Also, I wish there were different words for different degrees of cloning. It seems kind of ridiculous to call "any FPS after Doom" a clone, yet call the Domi Games version "Tiny Hawk" a clone. Calling two wildly disparate examples by the same word makes any discussion about cloning difficult, but maybe it's just me.

Berend Gorkom
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(never read the last post, but I agree, same point)



Here is an interesting thought:



If I would start my own company and focus on making money, is that unethical?

If my company business model would be to copy games from others, is that unethical?



Appearantly it's not, based on the reactions here. So if I WERE to start purely cloning games for massive profit, reaching the top sale lists, would you guys praise my fortune and ask me to keep doing this? Because to me it kinda looks like this IS a good business strategy. So please, my dear indie developers, keep making new games, you get my thanks and I get your profit.

Sven Bergstrom
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I find this post sad, that is my opinion.



Oh, but congratulations on getting those extra thousands of views and comments you were looking for, it worked! You can now feel better about your day.



Figured I would link some more clone articles for the readers sake :

http://northwaygames.com/?p=459

http://www.andymoore.ca/2011/08/the-third-cloning-of-steambirds/

Kyle Nau
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The Steam Birds developer crying about cloners is interesting considering it's been alleged that he "stole" the entire game mechanic from Sean O'Conner's "Firefight" (although Andy insists he came up with it on his own). It shows that anyone can be accused of cloning, even if they haven't.



I'm reminded of the post that went around after the last E3 showing screenshots from 4 different mainstream FPSes that all looked *exactly identical* to one another. As Gerald Belman mentioned earlier it comes down to the simplicity of your design. Games that rely on a single mechanic are easily clone-able.



It's like piracy, you have to suck it up, ignore it and keep working or else you'll waste all your time, energy and creativity worrying about it.

Tom F
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"Mechanic" is such an unspecific word and concept. The problem is that more than a mechanic has been stolen. Both the premise (not just fishing, but unconventional fishing) and the mechanic (I have not played the game, but it seems like it was copied) were taken.

I would not be upset with a developer who decided to make an unconventional fishing game. But that fishing game needs a unique mechanic. By the same token, as was said before, the same mechanic can be used in different premises (eg. doctor). Using both the same mechanic and the same premise is not illegal, but I cannot see how anyone can try to defend that lazy game development.

It's not copying to make a tower defense game, but if all the towers are exactly like another game's towers, then you have a problem. And in this case, that is what I see.

Adam Summerville
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So, I posted my thoughts at my blog (here: http://www.circlecatgames.com/2011/08/25/cloning-mk2/), but the TL; DR is this:

1. Copying mechanics isn't unethical, but cloning a game is.

2. The line between copying mechanics and cloning a game is whether there are any substantive differences in the game play. Dune 2 and Warcraft are in the same genre, but play out differently.

3. I don't think that Ninja Fishing is a clone of Radical Fishing. The addition of Fruit Ninja-esque mechanics is the type of riffing on a genre (admittedly, a young and unformed genre) that should be encouraged.

4. Don't release your game until you are happy with your monetization/marketing. Getting in the market first is important in this day and age. Don't do someone else's homework for them and make your own job harder at the same time.

5. Cloning of simple to grok games is always going to happen. Try to make the underlying structures of your game harder to guess, and therefore your game will be harder to clone.

Greg Wohlwend
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Slippery Slope is slippery.

Erik R
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In my opinion, while this is and should remain legal. Mostly, because the problem is one of thoughts and intentions, which you cannot make laws about.



If the intentions of the copying company were to make a new game based upon another game, only better/more in their vision, that's fine.

If their intentions were to rip off an existing game to make quick money, that would be a bad thing.



But since we can't know for sure, we should give them the benefit of the doubt. Otherwise things would get REALLY bad.

E Zachary Knight
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If their intentions are to just make a quick buck, wouldn't the market recognize that intent and eventually kill the company?

Erik R
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While it would maybe sorta kinda work in a hardcore enviroment, with casual games it doesn't. Casual gamers don't CARE about that kind of thing. They'll play what is marketed to them, and they won't be bothered by who made it and who they ripped it from at all.



Otherwise, we'd be seeing that kind of thing already. Yet, how many casual players do you know that even know the name of the company running their casual games, let alone that they ripped them?


none
 
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