Attack of the Clones: Cloning Games and Battling Copyright Infringement in the Courts

Is cloning games copyright infringement? Several recent court cases, for example, EA vs. Zynga litigation and the proliferation of “cloned” games, have opened up the discussion on how taking too much inspiration from present games affects initiation in the business—to the stage that an industry body like TIGA even sent out a survey on the issue to its members. The problem is currently on everyone’s program, as cloning (or “fast follow”) is rising again with shorter development cycles on new platforms including social and cellular. And while many originators of theories that are initial are not happy, few really take actions.

In this post, we’d like to concentrate on the legal aspects of games that are cloning. Along with copyright, we will point out a couple alternate (supporting) strategies to protecting the investment in your game if you’re in an extremely competitive marketplace that’s a high risk of cloning.

Legal Theory

The conversation on whether the “clone” of a “ ” game that is initial is a copyright infringement generally begins with common features of the games. Determined by the games, those could be similar skin colors with exactly the same RGB value, isometric perspectives, weapon names, or feature things (including a yoga mat).

On the other hand, the legal theory is more complicated. Copyright protects works (like the Harry Potter novels) but not thoughts (a novel about a youthful magician’s experiences). If a game developer has taken over works from another game without permission, the first originator’s copyright is infringed by it. If, for instance, music, images or code is duplicated, we’ve got a clear cut infringement. Though to use the notions of a game it’d be permissible.

Using this basic principle of copyright law to clones of computer games is more challenging, because most gamers are not unaware that setting and the images of a game are just part of the game encounter. Fairly frequently, two games share specific components that have strong similarities, including style types, character classes, weapon types, menu color schemes, amount of skin types, and clothes kinds. Nevertheless, none of those components will probably qualify as a “work” under copyright law in and by itself. Plus, when concentrating on particular components, one should additionally know about the shield that protection is frequently not given to those components of a work that are ordered by the technical requirements for a kind of merchandise. (In a shot, you have to have weapons, and you’re bound to have machine guns. In life sims, you have to have the ability to decide a character, but there are just so many conventional kinds in a narrative, etc.)

The most significant feature, however, is subject to contentious discussions: whether and to which extent a game itself (the rules, exceptional mechanisms, new genres) qualifies for protection. That’s where it gets catchy, extremely quickly. If the games as such (their fundamental function, their settings) were to be shielded, nobody would have the capacity to make first-person shooters (for example) in which you’re killing creatures in a maze after Doom, a hack-’n-’slash RPG after The Bard’s Tale, a side-scrolling shooter after Defender, or farming games after FarmVille—a limitation most folks would’t need as a matter of policy. (And we don’t even understand whether the development of racing games would have finished with Pole Position or with Out Run.)

In Search of Legal Protection

But we also have many cases in which setting and the gameplay have been definitely reproduced— replicating that is that many in the business view as inferior fashion.
Assuming that “the game” is shielded, what’s the essence of the game, remembering the idea” that is “ is definitely not shielded?

An extremely technical strategy would be to say the “game” materializes in its reconciliation, not its setting (unless the latter is extremely developed and strongly duplicated), and that the names of things cannot be critical, provided that they don’t work in precisely the same manner.

This strategy would result in a quite narrow protection. Each definition that is more comprehensive, however, faces the problem of defining what the essence of the game might be. Another issue is that the test for copyright infringement is to take a look at the likenesses not the differences between them, of two works. (In the U.S., this is the “large likenesses” evaluation.)

While the theory is not easy in the first place, released case law will not help a lot. Interestingly however, the cases that we do have date from the 1980s—with the first wave of clones.

As an example, back then the higher regional court of Frankfurt on the Main (Germany) maintained that computer games generally are not eligible for copyright protection as their economic interest would just continue for a brief time. Paradoxically, this was a case about Donkey Kong, and it doesn’t help an excellent deal for guidance, because it demonstrates how erroneous the court was while in hindsight it’s a humorous case. In the Netherlands, in 1984 the higher regional court of Amsterdam ruled that Pacman was worthy of copyright protection on account of infringement by Mr. Munchkin, a clone from Philips with minor tweaks (varying labyrinths, moving dots). (There are other Pacman cases in various states with quite diverging standards and

And although the same principles still apply, we’ve’t seen that many cases since the 1980s—in part because some of the more fascinating cases are settled under non-disclosure agreements (like the ill-famed Super Mario Bros. vs. Great Giana Sisters case).
No official evidence is accessible, although gossip has it that Great Giana Sisters was found to be an infringement on Nintendo’s rights.

However, it should be possible to get more precedents against ripoffs.

What we’ve found out in practice, however, is that some instances hinge on components that are banal, like the amount of things needed to update in a special menu, the fantasy name of in- an animal or game gentle money. It remains an open question: If and when will the courts begin to look more carefully at gameplay with or at particular components of the game? Until then the results of such cases is comparatively open—apart from cases in which computer programs or images, music, databases are reproduced— as they can be based on copyright.

Unfair Competition

Fortunately for first manufacturers, nevertheless, there’s a remaining tort (in Germany and The Netherlands at least) for unfair competition. Then the law offers some protection against misappropriation if the first merchandise is quite distinctive. The rule of thumb would be that the identifying” the “original” and the well-known is, and the closer the copy that is “,” the more likely there’s an infringement. While this appears obscure as well, the components “ “identifying” and famed” do help.

Overall, and according to our personal experience, all theory is gray, and most judges’ knowledge of computer games is restricted. This implies that they frequently would not have a finer understanding of what the essence of the game might be, and they have a tendency to determine according to fairly superficial similarities (or the lack of them). So, we’ve experienced a case where the claimant’s attorney claimed that his client’s “ the defendant’s alleged copy and initial” both had flat navigation with a link to the home display on the top left. We won a case primarily because the vehicles on the cover of the game box were the same colour and in exactly the same place.

The Wider Angle

Despite these uncertainties, originators of games that are first should not be unaware they have an entire variety of choices. Since with online services the party that sues can freely select the state in which to litigate the case, it makes sense to begin a suit in an area where you think that can win—notably since you can immediately get temporary injunctions (in a matter of days), including in states like Germany and the Netherlands. For games offered over a platform like an App Store or Facebook, you may even have a competitions’ Program pulled with no court judgement (even though it helps a lot to have one). So if you need better influence against infringers, you should believe beyond edges, and beyond copyright.

It’s also possible to file a design right or a brand (perhaps even your games’ characters, server names, or feature charms) in various states. It might make sense to file a copyright in the U.S., for example, for game displays (not potential in Europe), or a patent if there’s a technical innovation (again, this is simpler in the U.S. than in Europe). And while you are able to file more rights in the U.S., Europe regularly is a safer, faster and more affordable area to litigate. No wonder the first chapter of the Apple vs. Samsung saga was litigated in Germany. The theory of unfair competition, plus appears to be more powerful in Europe, and with caselaw that is quite large to direct you.

So if you believe your rights are being infringed upon, search abroad if in your state prices opportunities too low or are too high.
Dr. Andreas Lober is a lawyer and partner with the German firm Schulte Riesenkampff in Frankfurt am Main, Germany. He has worked in the gaming industry since 1991 and ran one of the first commercial online magazines for computer games in the 1990’s. He studied in Germany and France and write his thesis about youth protection in computer games. He is also the founder of bgf – browser-games forum.

Originally published by Casual Connect Magazine.

Read more: copyright, legal issues

Attack of the Clones: Battling Copyright Infringement in the Courts – Gamezebo