[casual_games] Copycats -- What Can Be Done?
Adam Johnston
adam at bamtang.com
Fri Apr 28 15:56:00 EDT 2006
The Da Vinci Code case was interesting in this respect.
The authors of Holy Blood, Holy Grail sued Dan Brown for copyright
infringement on a non-fiction work and lost. They never really had a leg to
stand on, but just the same Brown had clearly done a copy cat on them.
I'm very worried that the casual games market is going the way of the porn
industry. Huge revenues divided between thousands of low budget titles,
none of which warrant merit. People discuss budgets of over $150k for
titles such as Diner Dash. The 2% conversion rate number is thrown around a
lot. On a good day a publishing site gives the developer 25% of the
revenue, several months after they receive it.
So now we are talking about $150,000/($20/game x 25%) = 30,000 sales or
30,000/0.02 = 1,500,000 downloads.
I don’t mean to do any harm by using PopCap as an example. They are a great
company and clearly have made some great products. Never the less, they
occasionally give out numbers, so it puts them in the firing line for
analysis.
PopCap has said that their games have had 175 million downloads in 4.5
years. 175 m downloads / 4.5 years / 15 games = 2.6 m downloads per game
per year. So if our assumptions ("conventional casual game market wisdom")
is correct, then PopCap has more than enough revenue to create 15 new titles
per year. Since 2001 they have had 9 games in the Real Arcade top 10 and no
new ones appeared in 2005. Reviewing PopCap's own site, I dont see any new
games at all. So what are they spending their money on? They say that they
have 66 developers working away.
175 m downloads/4.5 years x 2% conversion x $20/title = $15 million/year
revenue.
$15m/66 employees = $227,000/ employee, which looks about right. So where
are the games? If the conventional wisdom works, then we should be seeing
new games that cost over $150,000 to produce at least once per month. Where
are they?
I'd suggest that they have left the spiraling casual game market to focus on
cell phone, airplane and other distribution networks.
Based in Peru, Bamtang has a tremendous team of developers and we can easily
put together top quality casual games with better art and engaging game play
for as little as $40,000 all inclusive due to the lower costs here, but I
have not been able to find anyone willing to pay more than $15,000 for such
a title. That's to say that the publishers are willing to pay just 10% of
what the developers say it takes to develop a good casual game. We're
capable of doing it at a 70% discount and still have trouble finding funding
for new projects.
Therefore, people are copying (badly) other games that were successful.
If the casual gaming market is really approaching $1 bn/y, then there should
be at least 2000 developers employed, or the equivalent of 33 companies
PopCap size. Out side of advergaming I really don’t see any budget for
original high quality casual games in the future.
Adam
_____
De: casual_games-bounces at igda.org [mailto:casual_games-bounces at igda.org] En
nombre de Thomas H. Buscaglia
Enviado el: Viernes, 28 de Abril de 2006 07:55 a.m.
Para: IGDA Casual Games SIG Mailing List
Asunto: 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.
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