Attack of the Clones: Battling Copyright Infringement in the Courts

Several recent court cases, including the EA vs. Zynga lawsuit and the proliferation of “cloned” games, have opened up the debate on how taking too much inspiration from existing games influences innovation in the industry—to the point that an industry body like TIGA even sent out a questionnaire on the subject to its members. The issue is now on everyone’s agenda, as cloning (or “fast follow”) is on the rise again with shorter development cycles on new platforms such as social and mobile. And while many creators of original concepts are unhappy, few actually take action.

In this article, we would like to focus on the legal aspects of cloning. In addition to copyright, we will point out a few alternative (supporting) strategies to protecting the investment in your game if you are in a highly competitive market that has a high risk of cloning.

Legal Theory

The discussion on whether or not the “clone” of an “original” game is a copyright infringement usually starts with shared characteristics of the games. Depending on the games, those could be similar skin colors with the same RGB value, isometric views, weapon names, or characteristic items (such as a yoga mat).

However, the legal theory is somewhat more complex. Copyright protects works (such as the Harry Potter books) but not ideas (a book about a young wizard’s adventures). If a game developer has taken over works from another game without permission, it infringes the original creator’s copyright. If, for example, code, graphics or music is copied, we have a clear-cut infringement. It would be permissible though to use the ideas of a game, taking inspiration from it.

Applying this basic principle of copyright law to clones of computer games is more difficult, because most gamers are aware that the graphics and setting of a game are only part of the game experience. Quite often, two games share certain elements that have strong similarities, including personality types, character classes, weapon types, menu color-schemes, number of skin types, and clothing types. Even so, none of those elements is likely to qualify as a “work” under copyright law in and by itself. Plus, when concentrating on specific elements, one should also be aware of the defense that protection is often not awarded to those elements of a work that are dictated by the technical requirements for a type of product. (In a shooter, you need to have weapons, and you are bound to have machine guns. In life sims, you need to be able to pick a character, but there are only so many traditional types in a story, etc.)

The most important aspect, though, is subject to controversial discussions: whether and to which extent a game itself (the rules, unique mechanics, new genres) qualifies for protection. That is where it gets real tricky, really fast. If the games as such (their basic functioning, their settings) were to be protected, nobody would be able to make first-person shooters (for example) in which you are killing monsters in a labyrinth after Doom, a hack-‘n-‘slash RPG after The Bard’s Tale, a side-scrolling shooter after Defender, or farming games after FarmVille—a restriction most of us wouldn’t want as a matter of policy. (And we do not even know whether the evolution of racing games would have ended with Pole Position or with Out Run.)

In Search of Legal Protection

But we also have many instances in which the gameplay and setting have been clearly copied—copying that many in the industry see as poor style. Assuming that “the game” is protected, what is the essence of the game, keeping in mind that the “idea” is certainly not protected? A very technical approach would be to say that the “game” materializes in its balancing, not its setting (unless the latter is extraordinarily developed and closely copied), and that the names of items cannot be decisive, as long as they do not function in the same way.

This approach would lead to a very narrow protection. Each broader definition, however, faces the difficulty of defining what the essence of the game might be. Another problem is that the test for copyright infringement is to look at the similarities of two works, not the differences between them. (In the U.S., this is the “substantial similarities” test.)

While the theory is difficult to begin with, published case-law does not help a lot either. Interestingly though, the cases that we do have date from the 1980s—with the first wave of clones.

For example, back then the higher regional court of Frankfurt on the Main (Germany) held that computer games usually do not qualify for copyright protection as their economic interest would only last for a short time. Ironically, this was a case about Donkey Kong, and while in hindsight it is a funny case because it shows how wrong the court was, it does not help a great deal for guidance. In the Netherlands, in 1984 the higher regional court of Amsterdam ruled that Pac-Man was worthy of copyright protection due to infringement by Mr. Munchkin, a clone from Philips with slight tweaks (variable mazes, moving dots). (There are other Pac-Man cases in various countries with very diverging criteria and

And although the same principles still apply, we haven’t seen that many cases since the 1980s—in part because some of the more interesting cases have been settled under non-disclosure agreements (such as the infamous Super Mario Bros. vs. Great Giana Sisters case). Rumor has it that the latter was found to be an infringement on Nintendo’s rights, but no official confirmation is available. Still, it should be possible to get more precedents against rip-offs.

What we have found out in practice, though, is that some cases hinge on somewhat banal elements, like the number of items required to upgrade in a particular menu, the fantasy name of in-game soft currency or an animal. It remains an open question: If and when will the courts start to look more closely at game-play or at specific elements of the game? Until then the outcome of such cases is relatively open—apart from cases in which graphics, music, databases or computer programs have been copied—as long as they are based on copyright.

Unfair Competition

Luckily for first makers, however, there is a residual tort (in Germany and The Netherlands at least) for unfair competition. If the original product is very distinctive, then the law offers some protection against misappropriation. The rule of thumb would be that the more famous and the more “distinctive” the “original” is, and the closer the “copy,” the more likely there is an infringement. While this seems vague as well, the elements “famous” and “distinctive” do help.

All in all, and according to our personal experience, all theory is gray, and most judges’ knowledge of computer games is limited. This means that they often do not have a finer understanding of what the essence of the game might be, and they tend to decide according to rather superficial similarities (or the lack of them). Thus, we have even experienced a case in which the claimant’s lawyer argued that his client’s “original” and the defendant’s alleged copy both had horizontal navigation with a link to the home screen on the top left. We even won a case mainly because the vehicles on the cover of the game box were the same color and in the same position.

The Wider Angle

Despite these uncertainties, creators of original games should be aware that they have a whole range of options. Since with online services the party that sues can freely choose the country in which to litigate the case, it makes sense to start a lawsuit in a place where you think you can win—especially since you can quickly get temporary injunctions (in a matter of days), including in countries like Germany and the Netherlands. For games offered over a platform such as an App Store or Facebook, you may even have a competitors’ App pulled without any court decision (even though it helps a lot to have one). So if you want better leverage against infringers, you should think beyond copyright, and beyond borders.

You may also register a design right or a trademark (maybe even your games’ characters, server names, or characteristic spells) in various countries. It might make sense to register a copyright in the U.S., for example, for game screens (not possible in Europe), or a patent if there is a technical invention (again, this is easier in the U.S. than in Europe). And while you can register more rights in the U.S., Europe often is a safer, quicker and cheaper place to litigate. No wonder the first chapter of the Apple vs. Samsung saga was litigated in Germany. Plus, the concept of unfair competition seems to be stronger in Europe, and with pretty substantial caselaw to guide you.

So if you think your rights are being infringed upon, look abroad if in your country costs are too high or chances too low.

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.

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