[casual_games] Copycats -- What Can Be Done?

Fri Apr 28 12:32:45 EDT 2006

Many thanks, Tom.  Definitely good food for thought.  As the casual gaming
industry continues to increase in visibility and viability, it sure would be
nice to get some legal procedures in place.  This cloning business will only
get worse before it gets better.

Thanks again.

Jim

  _____  

From: casual_games-bounces at igda.org [mailto:casual_games-bounces at igda.org]
On Behalf Of Thomas H. Buscaglia
Sent: Friday, April 28, 2006 5:55 AM
To: IGDA Casual Games SIG Mailing List
Subject: Re: [casual_games] Copycats -- What Can Be Done?

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 <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.

_______________________________________________

Casual_Games mailing list

Casual_Games at igda.org

http://seven.pairlist.net/mailman/listinfo/casual_games

-- 
--
Lee Crawford
yim: lee_crawford
m: (415) 608-9271
o: (408) 349-5191 
_______________________________________________
Casual_Games mailing list
Casual_Games at igda.org
http://seven.pairlist.net/mailman/listinfo/casual_games 

¤º°`°º¤,¸¸,¤º°`°º¤¤º°`°º¤,¸¸,¤º°`°º¤ 
Thomas H. Buscaglia, Esquire
The Game Attorney
T. H. Buscaglia and Associates
80 Southwest 8th Street
Suite 2100 - Brickell Bayview Center
Miami, FL  33130
Tel (305) 324-6000
Fax (305) 324-1111
Toll Free 888-848-GLAW
http://www.gameattorney.com <http://www.gameattorney.com/> 
¤º°`°º¤,¸¸,¤º°`°º¤¤º°`°º¤,¸¸,¤º°`°º¤ 

Confidential:  This email contains communications protected by the
attorney-client privilege.  If you do not expect such a communication from
Thomas H. Buscaglia, please delete this message without reading it or any
attachment, and then notify Mr. Buscaglia at thb at intelaw.com of this
inadvertent misdelivery.

-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://seven.pairlist.net/pipermail/casual_games/attachments/20060428/71af1829/attachment.html