[casual_games] Copycats -- What Can Be Done?

Fri Apr 28 08:54:49 EDT 2006

Lee got is all pretty much right.  Though there 
is a  possibility of using a US design patent to 
cover some unique element of gameplay.  Then use 
that to attempt to fend off all infringers.  But 
even if you had a method of enforcement, it could 
end up being an expensive proposition.

Of course, whether it is a Trademark, Copyright 
or Patent claim, you could hit the distributors 
selling the offending game.  But that might be a 
little too much like biting the hand that feeds you.

Unfortunately, I have never had the opportunity 
to fully research all of the issues 
involved.  But you could, if inclined, sue 
someone who put out a copycat game (assuming you 
have already registered the copyright)  claiming 
that it is a derivative work and therefore 
infringes your copyright.  Even applying Lee's 
10% rules, these cases are decided on a case by 
case basis.   So, even if the game looked only 
80% derivative - 20% origininal - you would have 
a basis for a law suit because it's just a matter 
of degrees.   You can also have legal counsel 
send out a Cease and Desist Demand claiming 
infringement, though that might be a little or no 
effect, it might deter some of the copying.

Finally there is the Digital Millennium Copyright 
Act (DMCA).  This might be the most effective way 
deal with this.  The DMCA makes anyone who hosts 
infringing materials liable for infringement once 
they are pout \on notice of the infringing nature 
of the content.  All sites and ISP's should have 
a DMCA notification entity in the legal mumbo 
jumbo on their site somewhere.  Once put on 
notice most ISPs (and I suspect that 
distri\bution portals might well  do the same 
thing) will pull down the offending material on 
notice to avoid any possible liability and only 
put it back when they have a high level of 
comfort that there will be not possibility of a law suit.

I used this method to pull down the Phantom and 
Infinium labs web sites when they used my 
client's content and did not pay him.  Of course, 
in that case we had proof my client actually 
created the "works" being displayed on their web 
site and it was not a derivative work 
situation.  But it should work with derivative works just the same.

Finally, if the name of their game is only a 
slight variation of yours, there is a solid 
trademark claim due to the potential for 
"confusion as to the origin of the product" in 
the relevant marketplace.  "Dyner Dash" being a perfect example.

I think the main problem with casuals games is 
that most developers are so thinly funded that 
even the thought of using their limited resources 
to protect their IP is not considered.  I mean it 
costs what...$40 to copyright your game.  How 
many bother?  So the idea of spending $500 - 
$1000 to have a lawyer review and evaluate a 
copyright infringement claim and send out a C&D 
or DMCA Notice is not something they even 
consider.  Let alone the $1000s it would take to institute a law suit.

Hmmm...that ended up being longer than I expected...hope it helps.

Tom B

>There are several axes to consider here, the 
>legal, the moral and the capitalistic side of 
>the equation. I don't think there's a 'fix' for what your talking about.
>
>On the legal side the copyright protects the 
>expression of an idea but not the core idea. A 
>complete rip-off ( e.g., Dyner Dash) you could 
>pursue in court but with a few variations in 
>theme, nouns, etc. and you've got a separate 
>expression of what might simply be shown to be a 
>similar idea. Conventional wisdom holds that a 
>10% difference is 'safe ground'.
>
>On the moral side I tend to agree with you; i'd 
>personally like to see more new, novel game 
>designs instead of some much consistency. With a 
>low innovation threshold you run the risk of 
>over-dosing your customers and losing you 
>audience. But, on the other hand, people who 
>like a given game model appear to appreciate the 
>variety (with spending as an indicator).
>
>I can't imagine any sort of coercive force the 
>would lead customers to not buy similar games, 
>distributors to not distribute those games, 
>publishers to not fund and market those games, 
>etc. How would you even make a clear 
>determination; it's all lines in the sand.
>    * was Cake Mania a clone of Wild West Wendy or Diner Dash or ...
>    * what if Wild West Wendy seemed like a 
> Diner Dash clone because it came out after but 
> they really started development first
>    * could the two simply be coincidence?
>    * Diner Dash clearly spawned a new flurry of 
> games but didn't it borrow from Betty's Beer 
> Bar or the arcade classic (Root Beer) Tapper.
>    * etc.
>Finally, the biggest problem is capitalistic. 
>These games sell; all of them. People who bought 
>Diner Dash are obviously also buying Cake Mania 
>and they're enjoying them both. Customers are 
>buying, distributors/publishers/developers are all making money, etc.
>
>--lee
>
>On 4/27/06, Jim Stern <<mailto:jstern at iwin.com>jstern at iwin.com> wrote:
>
>I know there have been quite a few discussions 
>in the past about developers and publishers 
>being frustrated with all the cloning that is 
>being done in games.  In some cases, the new 
>games are clearly an improvement from their 
>predecessors, and they can help to push the bar 
>toward higher quality games.  In other cases, 
>they literally are mimicking the same UI, 
>layouts, game play, and art style.  I would like 
>to know if anyone has information on:
>
>
>
>1)       Legal steps that can be done to thwart 
>this kind of activity (whether certain parts of 
>the game are copyrightable or if there is legal 
>precedence to get the offending party to cease and desist), and
>
>2)       Whether people are taking a stand 
>against working with developers who are clearly 
>violating the rights of those who developed the original idea
>
>
>
>Thanks.
>
>
>
>Jim Stern
>
>iWin, Inc.
>
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>
>--
>--
>Lee Crawford
>yim: lee_crawford
>m: (415) 608-9271
>o: (408) 349-5191
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