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Clone Wars: The Five Most Important Cases Every Game Developer Should Know

February 27, 2013
 

"How courts treat developers copying ideas for video games, however, has quietly but dramatically evolved over the past year," writes attorney Stephen McArthur, who takes a look at how the legal precedent on cloning has changed over the years -- from Asteroids through Triple Town.

Nothing can be wholly original when every idea and expression is inspired by what came before it. In that sense, all of creativity is derivative. From the earliest days of the wave of Pong clones in 1976, copyright law has been rather ineffective for video game developers who have tried using it to protect their games from competition.

How courts treat developers copying ideas for video games, however, has quietly but dramatically evolved over the past year. Courts are suddenly more willing to aggressively apply the principles of copyright infringement to the age-old practice of borrowing the game mechanics from an already successful video game, changing the art and design, and presenting it as something new and different -- i.e., "cloning".

There has always been a fine line between innovation and shameless copying in the video game industry. On the one hand, a developer shouldn't retain a monopoly over an entire genre of games, since it can serve as a platform for third party creativity.

If the developers of Wolfenstein 3-D were able to monopolize the idea of the first person perspective of a protagonist winding through levels using guns and other weapons to destroy enemies, then we wouldn't have Halo or Call of Duty.

If too much copyright protection is awarded to a game developer, then it could end up owning an entire genre and shutting out creativity for decades. On the other hand, we want to award innovation at companies, big or small, that create new ideas rather than simply following the trend of cloning whatever game or idea is popular. Drawing the line is not an easy task.

Historically, the courts have been unavailing to video game developers bringing copyright infringement lawsuits against cloners. However, in May 2012, a federal court cracked down on a mobile game developer that created a game that had remarkably similar art to Tetris and identical gameplay.[1]

Going one step further, in August, a second federal court shut down 6Waves's attempt to ride off of Spryfox's Triple Town success with its own mobile game, Yeti Town.[2]

The Triple Town case is remarkable since the court used copyright law to protect Triple Town's hierarchical tile-matching gameplay, essentially granting copyright protection to the rules and functionality of a video game instead of strictly to its audiovisual display. Are these two recent cases simply an anomaly, or are they a reaction to a perceived trend of rampant copycatting in the gaming industry and do they portend a new era of courts protecting existing games with the copyright regime?

A Brief Overview of the Law

The raison d'être of copyright law is to encourage the production of new art by rewarding authors for their creative efforts. Copyright protects artistic and literary expression. A video game's underlying code is protectable as a literary work and its art, music, and sound effects are protectable as an audiovisual work.

Copyright law does not protect against the borrowing of the underlying idea in a creative work - only the specific expression of that idea.[3] The rules, game mechanics, and functionality of a video game are said to "merge" with the underlying idea.[4] This means that game mechanics and the rules are not entitled to protection. Only the "expressive elements" of the game are copyrightable.

In Defense of the Ancients, for example, the underlying idea might be described as a multiplayer online battle arena where players are on either of two teams. Each player controls one character for their team and uses teamwork to attempt to defeat other enemy player characters and ultimately destroy the opposing base. That underlying idea cannot be copyrighted and there are untold thousands of ways to express it. Any original expression of that underlying idea, such as Riot Games' League of Legends, is protected by copyright.

Once you have an understanding of what can and cannot be protected by copyright, the next step is to learn how a copyright might be "infringed." To establish copyright infringement, a plaintiff must prove that it owns a valid copyright and that the defendant copied its work. The plaintiff can prove the defendant copied by showing that the defendant had access to the copyrighted material, and that there is "substantial similarity" between the protectable elements of the two works. "Access" to the copyrighted work is usually uncontested, since video games are generally widely distributed. The key analysis to video game copyright infringement most often centers on substantial similarity.

All creativity is derivative, so copyright law cannot absolutely prohibit any copying from prior works. In fact, when Atari, the creator of Asteroids, sued Amusement World, the creator of Meteors, for copyright infringement, Amusement World admitted that it made its game because it was inspired to make a "better version" of Asteroids.[5] Nevertheless, Atari lost its copyright claim, since the two games were not considered substantially similar. Substantial similarity means that the degree of similarity between the works is so high that the similarities could only have been caused by copying.[6]

When comparing two video games for the substantial similarity analysis, the court will only consider the protectable elements of the copyrighted work, and will filter out all "unprotectable elements".[7] The most common unprotectable elements of a video game that cannot be used for a substantial similarity analysis are (1) elements that are not original to the copyrighted work, and (2) scènes à faire, French for "scenes that must be done." Scènes à faire are features that are necessary or common to a genre.

Consider a video game based around vampires -- stakes through the heart, coffins, garlic, and an antagonist who sucks blood from his victims and avoids the sunlight are all standard to the vampire genre, and thus are scènes à faire, unprotectable elements of a video game.

When the unprotectable elements are "filtered" out, what's left is the author's particular expression of an idea, and that is what is compared to the accused copycat work through the eyes of a theoretical "ordinary reasonable observer."

The key to remember is that it is the plaintiff's burden to prove that a defendant's alleged copying is improper by demonstrating substantial similarity of the protected creative elements of each game. The underlying idea of the video game, including the rules and game mechanics, are not copyrightable. Only the original expressive aspects, including the code, artwork, and sound, are protected by copyrightable law.

A History of Courts Allowing Video Game Clones

Asteroids and Meteors

The predominant pattern in video game cloning cases has been for the court to rule definitively for the defendant. Illustrative of this long history is Atari's 1982 lawsuit against Amusement World, a decision that paved the way for developers to create games closely resembling established and successful games first created by other companies.[8]

Atari released the groundbreaking game, Asteroids, in 1979. In Asteroids, the player controls a triangle-shaped spaceship that must shoot and destroy opposing asteroids and enemy spaceships until it is hit and destroyed. Asteroids was an instant hit. Two years later, Stephen Holniker of Amusement World played Asteroids and said to himself, "I can do better". [9]

In 1981, Holniker released Meteors, what most would describe today as a "clone" of Asteroids. Atari sued the smaller company for copyright infringement.


Asteroids
.


Meteors.
(Gameplay footage begins around 2:00)

The court easily identified twenty-two similarities between the two games and acknowledged that Amusement World had intentionally based Meteors off of the idea of Asteroids. Both were 2D games involving a spaceship shooting its way through waves of larger and larger rocks that split into smaller ones when shot.

They shared seemingly arbitrary numerical qualities: there were exactly three sizes of space rocks in both games, the largest rocks always split into two medium rocks which would each always split into two small rocks. A player received an extra life in each game as soon as he scored 10,000 points. The player's spaceship was destroyed from only a single hit of any rock.

The rocks appeared in progressively larger waves and new waves would appear as soon as the final rock of the previous wave was destroyed. Large rocks moved slower than smaller ones. The controls for moving the spaceships were functionally identical. Both games even included a "thrust" function that moved the spaceship forward but then gradually slowed the spaceship down when the button was released.

Despite all of those similarities, the court held that there was no "substantial similarity." Most of the apparent similarities between the games were necessary if one was going to develop a game with the basic, unprotectable idea of shooting down space rocks with a spaceship. The similarities were thus scènes à faire and a necessity of the genre. The remaining similarities were functional game mechanics and rules, which are not copyrightable and thus could be copied by anyone. As the first case to apply these principles of copyright law to a video game, Atari's loss was a watershed event in the history of video game cloning.

Karate Champ and World Karate Championship

Six years after Atari's failed lawsuit, Data East sued Epyx for copying its successful karate fighting simulation game, Karate Champ.[10] The court wrote that Karate Champ and Epyx's World Karate Championship had 15 noteworthy features in common, many of which were martial-arts moves.


Left: Karate Champ. Right: World Karate Championship.

Nevertheless, the court held that each of those features were unprotectable, reasoning that certain karate moves, the presence of a referee, and the scoring system resulted from either constraints inherent in the sport of karate or from the existing technology. Once the court filtered all of the unprotectable elements (scenes à faire, unoriginal concepts, and functional gameplay rules) what was left of Karate World was not substantially similar to World Karate Championship.

Street Fighter and Fighter's History

Ironically, Data East found itself on the opposite side of a copyright lawsuit six years later. Data East developed and released a six-button fighting game called Fighter's History in 1993.[11] In Fighter's History, two players chose a fighter to square off in a side-view battle with punches, kicks, and special moves until they reduced their opponent's health bar to zero. Each fighter had three different punch buttons and three different kick buttons, one for each of light, medium, and heavy strength levels. If this sounds familiar to you, that may be because you have played Capcom's Street Fighter II, released two years earlier in 1991.

The two games claimed the same genre and had similar functionality and gameplay. But we've learned from the earlier cases that what matters is the "expression" of those underlying ideas and whether the protectable elements of the games are substantially similar. In support of Capcom's case of copyright infringement, though, the games did look strikingly alike:


Left: Fighter's History. Right: Street Fighter II.


Top: Fighter's History. Bottom: Street Fighter II.

The court even acknowledged that Data East had deliberately imitated Street Fighter II in hopes of capturing its success. Once again though, none of this was good enough for the court to be convinced of copyright infringement. In fact, the court ruled that Capcom failed to demonstrate a likelihood of success on the merits and denied its request for a preliminary injunction.

The court found that Street Fighter II was itself based on stereotypical characters (scènes à faire) and hundreds of fighting techniques that were already part of the public domain before Capcom appropriated them for Street Fighter II and were thus not copyrightable.

In fact, Data East had been creating games in the fighting genre (like the aforementioned Karate Champ) years before Street Fighter II was released. The unrealistic fighting maneuvers, such as the ability in each game to shoot fireballs from a character's hands were not substantially similar, because expressive details such as color and iconography were different.

What the Street Fighter case demonstrates is that even if a defendant creates a game that is incredibly similar to another very popular, antecedent game, that defendant can help avoid copyright infringement if it has already established an earlier practice of creating games in that genre.

Two Recent Cases Suddenly Limit the Practice of Cloning

The Asteroids, Karate Champ, and Street Fighter II cases are simply a few representative examples of about a dozen cases resulting in favorable rulings for developers accused of "cloning," even where those developers had purposefully imitated the original work.

In 2012, however, two federal courts cracked down on accused video game clones, extending the principles of copyright law more aggressively than cases of the past thirty years.

Tetris v. Mino

In May 2009, Xio released Mino, a game wholly inspired by Tetris.[12] Apparently banking on the three-decade history of courts dismissing copyright lawsuits against accused cloners, Xio brazenly copied the rules and functionality of Tetris, and then swapped out Tetris's artwork and sound for its own originally created, yet strikingly similar, artwork. Below are side-by-side screenshots of Tetris and Mino. Can you tell which one is Tetris?


Left: Tetris. Right: Mino.

Xio relied on the fact that there was no patent or copyright covering the rules and gameplay functionality of Tetris. Since Xio had technically replaced Tetris's artwork with its own, it argued that its otherwise "wholesale copying" was perfectly legal.

The court disagreed and ruled against the cloner, Xio. The court found that Tetris and Mino looked virtually identical and that a player might not know which one of them was the real Tetris. It granted summary judgment in favor of Tetris.

The court was troubled by the fact that not only had Xio strictly copied the exact rules and functionality of the game, but its own version of the artwork and audiovisual display was so similar as to be easily confused with Tetris even by those familiar with both games.

The court wrote that it was "the wholesale copying of the Tetris look that the Court finds troubling more than the individual similarities each considered in isolation."

The Xio case demonstrates that a developer cannot avoid copyright liability with only trivial alterations to a game's artwork.[13] Xio could have made any number of puzzle games that were inspired by Tetris, had they not been carbon copies.

Triple Town v. Yeti Town

In 2012, Spry Fox accused 6Waves' game Yeti Town of copying its own successful game, Triple Town.[14]

Both Triple Town and Yeti Town are games in the general "tile matching" genre. The underlying idea of the two games is that the player matches three or more tiles of the same object. As the tiles are matched, they transform into a single tile of an object of greater hierarchy. Those new tiles can themselves be matched to create tiles of even greater hierarchy. Frustrating the player's efforts are antagonist objects. Spry Fox's copyright of Triple Town gave it no monopoly for this underlying idea.

In Triple Town, the matched objects progress from bushes to trees to houses to churches and beyond. The antagonist frustrating the player's efforts takes the shape of a bear, and the game includes a "bot" the player can use to destroy any tiles. Triple Town takes place in a woodland setting.

6Waves expressed the underlying idea in its game, Yeti Town, a little differently. Instead of a woodland setting, it was an Arctic setting. The antagonist was a yeti instead of a bear. It used a campfire instead of a robot to destroy tiles. The object hierarchy progressed from saplings to trees to tents to cabins and so on.


Left: Triple Town. Right: Yeti Town.

However, the rules and functionality of the games, especially the object of matching tiles to create the greatest hierarchy, were nearly identical. The court seemed to be troubled by the fact that Yeti Town copied the exact gameplay and rules of the successful Triple Town. Even though Yeti Town's artwork, sound, and underlying code were readily distinguishable from Triple Town's, the court ruled that Spry Fox had in fact stated a plausible case for copyright infringement against 6Waves.

To determine whether the two games were substantially similar, the court performed an "extrinsic test", objectively comparing Triple Town's protectable elements to Yeti Town. Then, it performed an "intrinsic test", a subjective comparison of the protected elements of Triple Town, but through the eyes of a theoretical "ordinary observer" instead of the judge, focusing on the "total concept and feel" of the two works. Relying on the reactions of video game bloggers that called Yeti Town a clone of Triple Town, the court decided that an ordinary observer would plausibly have found that Triple Town and Yeti Town are substantially similar in total concept and feel.

As a result, 6Waves quickly settled and granted all of Yeti Town's intellectual property to Spry Fox. Thus, Triple Town is a momentous case -- since, for the first time, a court has looked far beyond the superficial artwork and audiovisual display, and appears to grant copyright protection to the actual rules and gameplay itself.

In each of the cases we had previously discussed, the video game accused of copyright infringement shared many artwork and other audiovisual similarities with the earlier game it was accused of copying. Yet the courts were still reluctant to find substantial similarity or copyright infringement. Only in the Tetris case did the court find substantial similarity, and in that case the clone was so artistically identical that even an avid Tetris fan would be momentarily confused. But Yeti Town does not share the same striking visual similarities that we saw in the Tetris case.

So, where did 6Waves go wrong in its development of Yeti Town? Why wasn't it able to avoid copyright infringement for its clone when so many others had? If we dig a little deeper in to the facts, we can identify several things that may have turned the tide against it:

  • Yeti Town mimicked Triple Town's name. The court did not like the fact that 6Waves used the word "town" in its game's title. Even though the game's names aren't technically copyrighted, the court still said it was relevant to the question of substantial similarity.

  • 6Waves may have been involved in some corporate skullduggery. Prior to the public launch of Triple Town, 6Waves and Spry Fox allegedly signed a non-disclosure agreement granting 6Waves confidential access to the Triple Town beta so that it might publish it on social networking sites like Facebook.[15] Negotiations eventually broke down and Spry Fox decided to self-publish Triple Town in October 2011. Two months later, in December 2011, 6Waves released Yeti Town. 6Waves denied copying Triple Town and claimed that Yeti Town had been independently developed by a third party.

  • Bloggers can make a difference. The court relied heavily on video game bloggers' reactions to Yeti Town, many of whom called the games similar and pointed out that it was obviously inspired by Triple Town. The court anointed bloggers to be quintessential "ordinary observers" and wrote that they had found the two games "substantially similar."

  • The judge never actually played either game. The judge even complained that "it is difficult to compare two video games by looking at a few screen shots and reading written descriptions of game play".[16] Without actually playing either game, it might be difficult for someone to understand more nuanced differences between the two, especially for most judges who probably did not grow up playing video games and aren't as familiar with them. It is possible that the judge's conclusions derived from a lack of familiarity rather than a misappropriation of the protected expression.

  • The court did not consider what was different about the two games. It may come as a surprise to learn that whether a developer has added features or even made the game better in his "clone" is not relevant to copyright infringement.[17] For example, it was not relevant to the court that Yeti Town had added a "3D tilt" feature to its game. You cannot shield yourself from misappropriation liability by adding features and improving the game.

The recent Tetris and Triple Town cases have nudged copyright closer to protecting game mechanics and may demonstrate a shift in the attitude of courts to cloned games. But are they enough to counteract a three-decade long pattern of victories in favor of alleged cloners? Ultimately, it's up to the courts to strike an equilibrium between shutting down the most egregious of clones without extending copyright protection to rules and game mechanics, which could create monopolies in entire genres of games.

Stephen McArthur is an attorney that focuses on intellectual property and privacy law and litigation at The McArthur Law Practice. You can read more about his practice at www.thevideogamelawyer.com. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

---

[1] Tetris Holding, LLC v. XIO Interactive, LLC, 2012 U.S. Dist. LEXIS 74463 (D. N.J., May 30, 2012).

[2] Spry Fox LLC v. Lolapps, Inc., 2:12-cv-00147-RAJ (W.D. Wash. Sept. 18, 2012).

[3] § 102(b) of the Copyright Act codifies this rule, known as the "idea/expression" dichotomy.

[4] Allen v. Academic Games League of America, Inc., 89 F.3d 614, 617-618 (9th Cir. 1996).

[5] Atari v. Amusement World Inc., 547 F.Supp. 222 (D. Md. Nov. 27, 1981).

[6] Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70 (2nd Cir., 1997).

[7] Cavalier v. Random House, Inc., 297 F.3d 815, 822 (9th Cir. 2002).

[8] Atari v. Amusement World Inc., 547 F.Supp. 222 (D. Md. Nov. 27, 1981)

[9] http://www.substance-tv.com/return-of-meteors/

[10] Data East USA, Inc. v. Epyx, Inc., 862 F.2d 204, 209 (9th Cir. 1988).

[11] Capcom U.S.A. Inc. v. Data East Corp., 1994 WL 1751482 (N.D. Cal. 1994).

[12] Tetris Holding, LLC v. XIO Interactive, LLC, at 3 (D. N.J., May 30, 2012).

[13] Tetris Holding is not the first case where a court has found copyright infringement in a video game, but it is a recent and representative example of the reasoning courts use when they do crack down on alleged cloners.

[14] Spry Fox LLC v. Lolapps, Inc., 2:12-cv-00147-RAJ (W.D. Wash. Sept. 18, 2012).

[15] Spryfox Complaint, p. 2.

[16] Spry Fox LLC v. Lolapps, Inc., 2:12-cv-00147-RAJ, at 11 (W.D. Wash. Sept. 18, 2012).

[17] "There are apparent differences between games (for example, yetis are not bears and 'bots' are not campfires), but a court must focus on what is similar, not what is different, when comparing two works." Spry Fox v. 6Waves, at 11.


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Comments


Michael Pianta
profile image
I have mixed feelings about the practice of cloning. Obviously, taken to an extreme, it is wrong. We've all seen games that were just flagrant copies and which added nothing to the experience, and those games are shameful. But if you play a game and this game has a clever idea that is, say, implemented poorly and you feel inspired to improve upon this - in my opinion that is not wrong. While it would be nice if every idea was completely original, things just don't work that way. I would argue that the entire history of Western art is basically a long procession of artists looking at what other artists had done before them and deciding which bits they were going to copy and which bits they were going to change. If we go too far in allowing companies to copyright the abstract ideas of the game then we will wind up limiting the growth of the medium.

Paul Laroquod
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Precisely so. I also find it unseemly the way this article appears to gleefully anticipate the stomping of clones without acknowledging that it's likely part of an overall trend toward copyright maximalism in the courts that is highly worrying and will likely not bode well for indie game designers who cannot afford the lawyers to win at the copyright game which is a game of intimidation, as we have seen here.


Just because you don't like a particular defendant or clone, doesn't mean that the loopholes in copyright aren't there to protect YOUR game from overzealous enforcement. We are all poorer for cases like this, period.

Vinicius Capiotti
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Yes, creativity comes from observing your surroundings, but to develop a creative product you need a creative process. I think it is clear when you borrow solutions from other games to make yours better, instead of setting "cloning" as a goal that actually limits it, so you can have a shorter and cheaper development process.

If you honestly think you can take someone's game and make it better, do it. Just don't make money with it, or talk to the original developer. If you want to sell a game, it's design should come from a lot of research, brainstorming, testing, and everything we call "creative process". Outright cloning as a shortcut in development is not respectable at all, imho.

Lewis Wakeford
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@Vinicius

I think we are all against out-right cloning. But there is a risk that closing the loop holes around clones also catches a lot of legitimate games in the crossfire. Especially when the rules about what is a clone and what isn't aren't really easy to define on paper, it's really just common sense and judgement (which can occasionally fail).

For example that Street Fighter vs Fighter's History case was based mostly on visual similarities, but if you treated it like the two Towns case and focused on mechanics you could make the argument that most fighting games are similar enough to be clones of each other. The major mechanics are all identical, most of the differences could be painted as attempts to disguise cloning or implementation quirks rather than thoughtful design changes.

Obviously, that isn't the case. But I don't find it hard to believe that older franchises might at some point try to exploit the precedent set by cases like this to attack newcomers they see as threats.

Michael Pianta
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Exactly. Like this here: http://www.youtube.com/watch?v=8cchlIyO_IU
That YouTube video analyzes the hud of fighting games, which are basically uniform across all fighting games. You've got the lifebars at the top of the screen, on the left and right, and the timer in the middle. The vidoe goes into detail on why this form should dominate but in summary it's because that's the best way to do it. All the different fighting games use original assets for this thing, but structurally they basically all ripped off Street Fighter II which was the first to use this format. If Capcom was allowed to copyright that there would be no fighting game that would be as functional as Street Fighter. Bad for the artform, I'd argue.

Or take an example like this, from my own life. I've been teaching myself to program for several years now (I'm really an artist). When I first started it was suggested to me that I clone classic arcade games. So I cloned Galaga, but being an artist I redrew all the assets and I wound up changing the theme from space to under the sea. Once I did this a couple of new mechanics suggested themselves to me, so I added those two. The result was clearly in the spirit of Galaga, but was different enough to qualify as an original game (in my opinion, anyway). I never distributed this title (the world has quite enough Galaga clones already!), but as a hypothetical it is suitable. Is my Galaga clone copyright infringing?

It's not to dissimilar from the YetiTown example above. I changed the assets and the theme - but the core game is basically similar. I did add some new stuff, but check the last bullet point - it doesn't matter that I added stuff, even though that substantially altered the feel of the game. But if new assets, new themes and new mechanics still equals infringement what has Namco copyrighted exactly? Enemies that come in waves?

Companies should not be allowed copyrights of something so abstract - it could seriously restrict development of other genuinely original titles.

Kenneth Blaney
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Doom was made by id, so we would still have Doom. That said the rest of the point still stands.

Christian Nutt
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Fixed! It somehow escaped my grasp earlier.

Ian Fisch
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I think it's important to note that the judge merely decided that Yeti Town could not have the case dismissed outright. In other words, he decided that Triple Town deserved to have a trial.

It's not as if a judge or jury got to the point of actually finding Yeti Town liable.

E Zachary Knight
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Correct. The Judge ruled that Triple Town presented a convincing enough case that the lawsuit should go forward. That was it. For all we know, the Judge and/or Jury could have ruled in favor of Yeti Town.

I feel the settlement came from the fact that 6Waves was facing a pretty damning case against it and was really fearing a loss though.

Stephen McArthur
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Ian, that’s correct. In fact, I’m not aware of any video game clone cases that have been decided by a jury at trial. They have all been decided by way of dismissal, summary judgment, or settlement. In the Asteroids case, for example, the court entered judgment for the defendant at the preliminary injunction stage even where the court acknowledged that “[i]t seems clear that defendants based their game on plaintiff's copyrighted game; to put it bluntly, defendants took plaintiff's idea.” Atari Inc., at 230.

What makes the Triple Town case so special is that if the court had strictly followed the earlier line of cases, then it probably would not have let the plaintiff’s claims survived the motion to dismiss. The Triple Town court also appeared to base its reasoning on the fact that the two games had nearly identical rules and gameplay functionality, which earlier courts would have described as the “underlying idea” and not given any copyright protection at all. So, the fact that the judge even allowed the action to proceed may demonstrate a shift in the way courts are beginning to apply copyright law to video game cloning.

Tom Buscaglia
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Although I was not litigation counsel, as General Counsel to Spry Fox, I was instrumental in the Triple Town/Yeti Town case. Mark Lorbiecki, the IP litigator we selected and I were very positive about our chances of securing a positive result and even for making some good law in the process. But, settlement is always a good option under the right terms (which I cannot discuss beyond the fact that we got all rights to Yeti Town in the deal).

That said, I think there are some insights I can provide that may clarify what happened...

First, the access that 6Waves had to the beta version of the game under an NDA established prima facia access. And the termination of negotiations, with an apology for the release from the 6Waves Biz Dev point person at the time of their launch of Yeti Town supported the claim.

But more importantly, it was not merely the rules and gameplay that were the lynchpin of the decision. We pointed out numerous instances of actual copying. Not just the gameplay, but copying of the unique expression of significant elements of the game. A few examples are:

The grid was identical as was the placement and function of the storage tile in the upper left corner.

The functionality of each successive item was identical.

Element combos were listed in the same location on the screen, and the same result.

The result of the combination of those functional elements, right down to the awarding of the same bonus point values for multiple combos was the same.

Elements available in the store had limited quantities available (unique to Triple Town at the time). Those were also identical for each identically functional element.

The number of coins, and even the discounts were identical for certain items available were all identical.

There were more that I don't recall at the moment. But the list was substantial. Their M2Dismiss took the position that since games are at their core merely a set of rules not subject to Copyright protection, the case should be dismissed. So, the rejection of that proposition by the Federal Court was quite a relief.

My favorite quote from our Response to their motion pretty much sums up what I believe formed the basis for the denial of their motion...

"The alteration of a few individual elements from these games does not diffuse their status as infringing works. Quite simply, “No plagiarist can excuse the wrong by showing how much of his work he did not pirate.” Shaw v. Lindheim, 919 F.2d 1353, 1362 (9th Cir. 1990) (quoting 4 Nimmer on Copyright ¡ì 13.03[B][1][a]))."

Tom B

Stephen McArthur
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Tom, thanks for your insight into the nuances of the case.

Jeremy Reaban
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OTOH, there's also the K.C. Munchkin case, where Atari sued Philips and won (on appeal), even though the game wasn't that close to Pac-Man (IMHO), though obviously inspired by it.

http://en.wikipedia.org/wiki/K.C._Munchkin

Arthur De Martino
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In the "Fighter's History" and "Street Fighter II" debacle I fail to see what was so wrong that had capcom sueing.

None of the characters play alike their Capcom counter parts with the possible exception of that punk rocker that had a flash kick and sonic boom on the same commands as Guile.
All the others had a unique look, different inputs, different powers, different moves all together.
Not even that some of them where completely unique character concepts.

Both games were important, SFII was the original, Fighter's History was someone trying to make a fighting game using the concepts presented in SFII but on their own manner.
Only because of games like that did we manage to expand the genre.

Joseph Anthony B. A. Tanimowo-Reyes
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When I saw this, I was immediately reminded of the Donkey Kong/King Kong case, where Nintendo counter-sued and won royalties.

http://en.wikipedia.org/wiki/Universal_City_Studios,_Inc._v._Nint
endo_Co.,_Ltd.

"Donkey Kong's particular expression of a gorilla villain and a carpenter hero (with or without a fire hat) who must dodge various obstacles (whether bombs or fireballs) while climbing up ladders (whether complete or broken) and picking up prizes (umbrellas or purses) to rescue a fair-haired (whether knotted or pigtailed) hostage from the gorilla is protractible against Universal and its licensees."

Steven Christian
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Did the 3D-tilt feature significantly improve the gameplay?
If so, it's simply the case of taking an idea and improving upon it.

If it was only a minor improvement, or something that was just tacked-on to differentiate the products, then I guess it's very grey.

Roberta Davies
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That's what I was thinking. The addition of a 3D tilt on its own is unlikely to make a substantive change to gameplay, or even to the game's feel.

Relative complexity also occurred to me. For the early arcade games, there are only so many ways to set up a scenario of "shoot down waves of alien attackers" or "break up drifting rocks". This doesn't leave much room for incontestably original work -- as discussed in the Asteroids case. In contrast, Triple Town is a much more complex creation. Beginning with a basic concept of "match tiles to create better tiles", there are a myriad different directions for game design to explore, and therefore a vanishingly small probability that two such games would turn out to be so very similar just by chance.

Lex Allen
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They key point is like Tom said above. There was an NDA, then negotiations broke off, and then there were so many instances of exact copying, that it couldn't be ignored.

I don't think this is going to change things for most of us, but people may think twice. After all, almost any game, book, or creative work could be considered a clone.

Think about how many books would not exist if you couldn't clone something like Romeo and Juliet.

Kevin Reese
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Not sure if I concur about that. If you wrote a book that copies (in entirety) the plot of another, even that takes a great deal of creativity and hard work. You can not copy a book word for word -- that's infringement.

TC Weidner
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Its a fine line, I dont like the idea of someone just reskinning someone elses game and calling it their own, but I also wouldnt like a world in which a few game companies own all the right to the genres.

Bob Satori
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What would you consider "reskinning" someone else's game, though?

Decompiling the original binaries and recompiling with new/altered assets (or equivalent use of supplied tools to do the same)? Or would you consider recreating the mechanics from scratch to be "reskinning" as well?

Personally, I don't see the problem with the latter, especially given the complexity of most game mechanics now making a perfect duplication near impossible.

Consider Street Fighter and Fighter's History up there. Aside from being completely original work, it is an obvious attempt to recreate the original mechanics, as well as a similar "look and feel." But fighting game fans in '93 didn't simply abandon Capcom for any of the umpteen clones; they just played and bought every fighting game that came along. Those customers would not have appreciated having Capcom preventing any of those clones, and without them all keeping the players from becoming bored the fighting game genre may have quickly dried up rather than dominating the arcade and console markets for all those years.

So while the law may allow companies to shut out competition, it seems to me that smart publishers should avoid doing that in the interest of keeping the market "primed" in the year or two between their own releases. Consumers still have brand loyalty to the originals, after all.

Steve Cawood
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Hmm what if this happened in Hollywood? There'd be no more "A group of sex & drugs crazed teenagers head to a log cabin/wood/beach/abandoned house for a weekend of fun and get slaughtered by a crazed psychopath/evil demon/fish/crocodile/spider" movies.

As mentioned, reskinning someone else's game isn't good but how can a game be totally original anymore? It's impossible.

Jimmy Marcus Larsen
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I hope this is not looked upon as a bad move, but I recently designed a game using the same basic matching/merging mechanic as in Triple Town. I added a whole lot of new elements, and I really don't think it can be considered a clone like Yeti Town. It's more like an evolution towards the tower defense genre. It's called Puzzle Beach, and you can play it on playtopia.com if you want to judge for yourself.

Lex Allen
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I'm sure you'll be fine. As long as you didn't map out the exact dimensions and locations of the objects, I don't think they'll care. You didn't have a previous relationship with them, nor have access to any of their trade secrets. Plus, you don't have Town in your name. I don't think anyone will confuse your game with Triple Town.

Henry Martin
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I'm am so thankful there is an article like this comparing games side by side. with recent updates too. Since we base our entire system, culture, whatever you can call it, around money, this argument will never go away. at what point are games too similar? and what point are they different. Artists work hard to get the sounds, the models and everything in place, they are distinctively different enough that you can call it a different game. Tetris and mino is one of the hardest cases, mino just looks like an updated version of tetris, and is it so wrong to add features to an already solid game? You could argue the fact that almost all movies only ever have 1 of 7 plots overall. All told in a different way, different art, sound, characters. Money is the problem here. This argument goes into anything creative, ever. I dont think there will ever be a way to avoid this from happening.

Kevin Reese
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I don't agree. Using the same plot of another movie (as in my book example above) is an exercise far removed from recreating a movie shot-for-shot, with the same script.

Damien Djaouti
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Thanks for the very interesting article.

Regardless of the era, don't you think it also depends of who are the judges involved in the cases ?
For example, in the Pac-Man / K.C. Munchkin case mentioned earlier, it's an "old" case where the "original creator" won while the two games are not that close (similar mechanics but different aesthetics). K.C. Munchkin even offers some unique features like a level editor. So do you really think that the Tetris and Triple Town cases are showing a general "shift in the attitude of courts to cloned game", or is it just a matter of luck in which court judges a "cloned game" case ?

Josh Neff
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I wish Patents had been discussed. While game mechanics cannot be protected by copyright, game mechanics can indeed be patented.

Jop Vernooij
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Good thing clones are now being taken down! Cloning is the most disgusting thing in the gaming industry, it's good that it is now being punished. Everyone who thinks it is bad that clones are being taken down shouldn't work in the game industry IMO.


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