Steal like a game developer

Cloning in games is nothing new. It’s as old as the industry itself. In fast-growing markets, cloning incidences, or accusations thereof, are at their highest. We saw it in Japan and North America with arcade games in the eighties, and we’re seeing it now with the explosion of mobile games. This is now especially true throughout mobile-mad Asia. Despite the huge influx of games, I’d argue that instances of full-on cloning are rarer than many think. This doesn’t mean the borrowing of ideas from others isn’t rampant. It is. Rather, human nature, laws, and I’d argue the greater good all demand we steal each other’s ideas – just not their work.

Full disclosure: I’m not a lawyer, but I did play one of the Phoenix Wright games. Most of the issues raised will fall somewhere in the gray area where “common sense” ends and “time to call a lawyer” begins.

The arts have a different way of protecting original ideas – or not protecting them, as it turns out – than technology. It all becomes a mess with something like video games, a field that straddles both tech and the traditional arts. The result is a complicated web that catches few copycats. Be forewarned, that doesn’t mean that all is fair game.

Stealing like a game developer

In his excellent book, Steal Like an Artist, Austin Kleon presents an honest way of looking at art. He goes to great length to explain just how much any aspiring artist should borrow from as many sources as possible. This is different from the almost-sacred way we tend to talk about matters of artistic creation, as if some muse had spoken to us, never admitting that we just really wanted to put League of Legends on a tablet, for example. Kleon’s work applies best to art and writing, but could apply to anything, from business to coding to synchronized swimming. This isn’t to say anyone’s calling for outright hackery or passing off another’s work as one’s own. Fortunately, laws don’t permit this sort of thing, either.

The games industry, from the large publisher to the small studio, is quick to adopt technical advancements. It’s also eager to pay homage to the works of others, from fan-made mods, to the allusion of other works. For better or worse, developers rarely have any qualms about borrowing from other devs. It’s nearly as common to see them appropriate something from movies, film, or comics. Still, having a sense of where the lines are is essential, even if a complete understanding is impossible and, unless you’re a lawyer, impractical.

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The case of Idea v. Expression

A nineteenth century Supreme Court ruling in the United States captured the essence of copyright law. While there is some variation all over the world, what is perhaps the field’s core principle was settled. It’s called the Idea-Expression Dichotomy:

Unlike a patent, a copyright gives no exclusive right to the art disclosed; protection is given only to the expression of the idea – not the idea itself.

An American lawyer posted an interesting rundown which included several games industry cases that took place over a few decades. These typically involved Japanese companies’ North American branches battling it out in US courts. One quickly sees that you can’t copyright something as abstract as a fighting game. The same holds true for seemingly less obvious concepts like that of a multiplayer online battle arena (MOBA). Still, many creative aspects are protectable, including names, story, art, and other design elements.

What’s the story?

There is good evidence that all those “different” stories you’ve digested over the years, whether they be in book, film, or game, conform to one of seven basic templates. Hell, it’s probably all just the same single story and we are just being pedants about it. So if you were to say Game X copied Game Y which had already copied Final Fantasy VI, I encourage you not to go too far down that rabbit hole. You’ll soon see many of the same themes pre-dating even the first novel, Japan’s Genji Monogatori, and probably going as far back as the cave walls in Indonesia if you know what you’re looking at. We might find this “meta-narrative” fundamental to our very psychology if we only knew how to look.

Realizing this, you’ll have some sympathy for the people who copied the overall plot of another story in their game – if we’re being honest, that’s all anyone ever does. However, the expression, in the form of the setting, specific events, and characters, from their names to their dialogue and appearance are protected, not to mention the source code.

It takes a while before these things make their way into the public domain as well. In most countries it’s the creator’s life plus 50 or 70 years. That’s clearly going to get awkward when people start living to well over a hundred, or if we see Ghost in the Shell-like advances in technology, which might not be long off.

As long as we’re made of flesh, however, our creative expressions, and even appearances remain protected for the time being – so long as you can afford a lawyer. Japanese game publisher Capcom was quick to swap the name of character M. Bison when Street Fighter II hit the United States, fearing legal reprisal by boxer turned pigeon trainer Mike Tyson. Anyone who played Fire Pro Wrestling or Virtual Pro Wrestling will realize that slight changes to a name and appearance can be enough in Japan, but the more litigious West has seen Lindsey Lohan dragging Scotland-based game powerhouse Rockstar through the courts over a selfie.

The alternative is to stick to the safety of the public domain, which is exactly what every game based on the Romance of Three Kingdoms does. We may think that East Asian developers lean hard on these traditions for their familiarity and to mine them for ideas, but it may be to give their legal teams a break. Nobody owns those characters, stories, or settings. They then only need to worry about protecting the particular depictions produced by their artists.

Games as art

Earlier this year, Korean developer NeoWiz came under heavy scrutiny when it released screenshots of its then-upcoming game Soul Hearts which looked eerily reminiscent of the Wii game Muramasa: The Demon Blade, developed by Japanese studio Vanillaware.

Had that case gone to court, one could expect that NeoWiz would have argued, as it sort of did in its defense in the court of public opinion, that the games were fundamentally different. Moreover, the East-Asian-themed aspects that were coming under scrutiny could be a coincidence, no matter how hard that is to believe. To play it safe, NeoWiz changed the offending parts before release. With the artistic “coincidences” eliminated, the different controls and gameplay would leave little room for accusations of cloning. If history is any indication, these battles would be fought by their respective American subsidiaries anyway.

Losing controls

Experience tells us that game controls and mechanics aren’t exactly being copyrighted either. Once an advancement is made in one game, similarly themed successors will adopt them. Imagine if GoldenEye had received a patent for reloading in a shooter, or Halo for regenerating shields. But why didn’t they? In the number of cases cited by Adler Vermillion above, it’s clear that any mechanic that imitates real life physics or actions, like falling or reloading, is going to remain free to use, barring extensive liberties taken with the real world physics by the creator.

Given the limited number of possible control schemes at a developer’s disposal, similar controls are likely going to be chalked up to coincidence rather than be considered infringing. This explains the flood of Street Fighter clones resemblers out there, and the virtually unheard of situation of a touchscreen game being called out for mechanics. Would anyone want to live in a world where one company could own the concept of swiping a screen with a finger, anyway?

Sorting the goats from the cloned sheep

All this said, one cannot deny that cases of obvious cloning have arisen. Assuming that by now, everyone understands that stealing actual assets or plagiarizing wholesale is going to be frowned upon, let’s look at the few cases that ended up going to court. A common thread in the few commonly cited cases is the apparent understanding of the accused, that they had actually changed enough of the games not to be liable for infringement. In both Spry Fox LLC v. Lolapps, Inc. and Tetris Holding, LLC v. XIO Interactive, LLC, the defense pointed to the use of different artistic assets, from sprites to sounds. It truly seems eerie how cognizant these two defendants were in their wholesale ripping off of the the plaintiffs. Their defenses respectively translated to lay speak as “we made sure to re-skin everything, so we good, right?” These cases echo the 1980s’ Crazy Kong which was found to infringe on Nintendo’s Donkey Kong.

The simplicity of Flappy Bird made it a favorite of cloners.

More recently, the deluge of Flappy Bird clones is another example. Many of these games would eventually be pulled, as the Vietnamese developer eventually decided to protect his IP. Though, it would be hard to defend the resemblance of the game’s pipes to those from Super Mario Bros. in court, had Nintendo chosen to press the issue.

Cases of cut-and-dry cloning will likely continue to be rare, as it demands an almost outstanding lack of originality and an unwillingness to add any expression of one’s own to a game. Often, simple parody is enough. While, there will likely remain a lot of projects that tread in murky water, to be a true clone you’ve got to take it quite far. While this might make things seem bleak when it comes to protecting your original ideas, please consider that true originality is probably overstated, if not overrated, as we’ve seen. You can also take solace in that if you do make the next Flappy Bird, no one will remember the next Flappy Planes.

Steal like a game developer