Opinion: Attack of the Clones - Two Perspectives

[Gamasutra recently published a feature article by John Andersen about the difficulty of defending games from 'cloning'. Several readers followed up by asking questions on whether and how game concepts are legally protected, so we asked game IP lawyer Gregory Boyd to comment from a legal perspective. In addition, PopCap's James Gwertzman has contributed a Letter To The Editor discussing cloning from PopCap's perspective, particularly given the fact that a recent technical article featured screenshots of a Chinese Zuma 'clone', after PopCap was singled out in the original piece.] A Lawyer's Perspective: Gregory Boyd On October 24, 2006, Gamasutra published a feature article by John Andersen about the difficulty of defending games, particularly foreign games, from cloning. This short follow-up article is meant to expand on some of the legal concepts Mr. Andersen mentioned. It is true that defending games from cloning can be a difficult task, but knowing the basic tools that publishers and developers have in the toolbox is a big step toward protecting your games from cloning. Games are made of ideas and the protection of ideas lies squarely in the realm of intellectual property law, usually abbreviated IP. Under the larger heading of IP, game companies have access to trade secrets, trademarks, patents, and copyright law. All of these forms of IP are useful in game development, but they vary in cost, complexity of registration, and coverage. This short article will focus primarily on copyright after a brief summary of the other forms of protection. Types Of Game Protection Trade secrets are inexpensive to implement and have broad coverage, but once the secret gets out the IP protection may be doomed. Trademarks can protect company names and the titles or slogans attached to successful games. The registration is relatively easy and inexpensive, the protection is long, but the coverage is for fairly narrow subject matter. Patents can protect certain software implementations, gameplay mechanics, and hardware. However, patents are expensive and complicated to register, but a detailed description of these IP types is beyond the scope of this article. The most powerful tool in the box to protect games from cloning is probably copyright. Copyright is easy to conjure, long lasting, broad covering, and has very sharp teeth. Copyright is easy to invoke because it attaches to a work as soon as it is fixed in a tangible medium. Translated from legal-speak into English, that means that copyright attaches as soon as a work is “made.” In the U.S., registration is necessary for litigation purposes, but the protection attaches to the work even without the registration. Registration is still a good idea for potential litigation purposes and because it places others on notice that your game company owns the copyright. The registration is cheap (about $45) and involves completing a very simple form that can be downloaded from the Copyright Office at http://www.copyright.gov/. In addition there are pages of helpful information about copyright contained on this site including phone numbers to call for assistance. Copyright is long. Copyright protection currently expires 95 years after publication of the work or 125 years after creation of the work. This is a very long time by any standard. It is so long that it is effectively forever. By that, I mean two things. First, copyright lasts longer than any game developer has ever lived after making a game. Second, copyright lasts longer than any game company has been in existence. Even Pac-Man will not fall outside of copyright and into the public domain until about 2060. What Does Copyright Cover? Copyright is also so broad that it covers almost every aspect of modern games. Copyright can cover code, music, storylines, manuals, box art, characters, and the game product as a whole. To be clear, copyright covers the fixed expression of ideas in a tangible medium. This does not mean that copyright protects the ideas themselves, but copyright does protect the form those ideas take when expressed. Merely cloning the concept behind a game is not enough to violate copyright protection, but when a clone copies how a game actually looks on the screen or how the code is written, then the line is crossed into copyright violation. However, this is often a fine distinction because in practice the closer one comes to copying a concept, the closer one moves toward the copyrighted expression. Copying a concept perfectly almost inevitably results in copying the expression. Copyright also has teeth. Copyright has tough enforcement provisions that can include money damages, stopping infringing activity, and destroying the pirated material. Even prison time is a possible punishment. The penalties depends on whether civil, criminal, or both types of copyright remedies are pursued. In one recent infamous instance, Yonatan Cohen was convicted of producing a Nintendo knock-off console that included pirated games. Mr. Cohen was sentenced to 5 years in prison, lost hundreds of thousands of dollars in property, and is scheduled to be deported to Israel after serving his sentence. In addition, his funds paid for advertisements in national game magazines that read “Piracy is a Crime” along with a description of his case and his picture. The advertisement also had a line across the bottom that read, “This ad was paid for by Yonatan Cohen as part of his restitution to warn others about the dangers and penalties associated with violating the copyright laws.” In the last few years, forums have buzzed with talk that Nintendo patents are expiring and it is now “legal” to make Nintendo consoles and games. I do not believe that this is the case, because games and consoles are protected by other IP types that last much longer than patents [Boyd has written on this subject for Gamasutra before]. Conclusion In summary, IP is capable of protecting games from cloning. When working against a cloned game, it is critical that game companies know which IP tools to use and when to use them. To echo the excellent point in Mr. Anderson’s article, it is critical that game companies keep good records of IP ownership and registration to make the chain of title clear. A clear chain of title makes enforcement much easier. If caught in the act, most companies tend to comply with simple cease and desist letters. The potential negative consequences associated with IP infringement, particularly copyright infringement, is usually enough to motivate them to remove the offending game clone. [DISCLAIMER: This article is written for educational purposes. Nothing herein should be considered as legal advice or as forming an attorney client relationship. The author’s views are his own and do not represent those of CMP, Gamasutra, Kenyon & Kenyon or his clients. Every situation is different and the author strongly urges you to seek competent specialized advice for legal issues.] --- A Game Creator's Perspective: James Gwertzman, PopCap As the company that was accused of ripping off IP from the hapless Japanese developer Mitchell Corporation in the recent Soapbox feature "Ripping off Japan," we thought it was quite ironic to find the artwork from our game Zuma used in the screenshots accompanying the feature "A 2D Render Base Using Policy Based Design" by Zhaolin Feng. The game featured by Zhaolin Feng is clearly one of the hundreds of Zuma-clones that proliferate in China, where the cloning of Western (and Japanese) games is far more prolific and far more more egregious than anything seen in the US. Are we upset? Not really - we realize that IP protection in China is still in its infancy, but things are gradually improving, and we choose to fight not by filing lawsuits but by bringing our own games to China directly ourselves and competing in the marketplace. Ultimately we believe our high quality bar and original designs will triumph over low-budget and uninspired "clones". That is perhaps what is frustrating about the comparisons of Zuma and Puzzloop. Go play both games (Puzzloop is widely available on the DS as Magnetica, developed and published by Mitchell) and then ask whether Zuma is a clone of Puzzloop (in the same way that many of our games have been directly cloned, or the Flash-based Space Invaders clone cited in the article), or a game inspired by a mechanic that adds significant innovations and results in ultimately a new game. Was Half-Life a clone of Doom? [Do you have an opinion that some game clones can actually be a positive thing if they provide enough of a twist on the genre? What do you think of both the original article and Boyd/Gwertzman's follow-up? Please submit a Letter To The Editor if you'd like to express your opinion. Also please note that more discussion of the article has taken place at Gamasutra's sister weblog GameSetWatch.]