SPAM-LOW: RE: [casual_games] Copycats -- What Can Be Done?

Fri Apr 28 17:06:39 EDT 2006

The point about Eidos still isn't fully complete:

Lucas made the same mistake with Jones.  The first movie, originally 
entitled _Raiders of the Lost Ark_, was followed by movies with the 
hero's name in the title.  Eventually, with the latest DVD versions, 
_Raiders_ has become _Indiana Jones and the Raiders of the Lost Ark_.

At least Lucas understood the concept after the first one.  He also 
understood that, like Sherlock Holmes, each of Indy's adventures must 
stand on its own feet.  It took a long time for Eidos to get this idea 
(not the only game company with the problem) and stop calling their 
games Tomb Raider II, III, etc. unto terminal boredom.

Tim Turner wrote:
> Hal- I agree with you.  This is intended as a "yes and" sort of post but
> sometimes when I try to be subtle I fail.
> 
> All,
> 
> Actually, this point about Eidos isn't fully complete.  I just read an
> interesting article (not sure where) that talked about how Eidos made a
> mistake with Tomb Raider by naming it Tomb Raider instead of Laura Croft:
> Tomb Raider or some such.  The article talks about how they are in recovery
> mode now trying to rebrand the franchise to reflect the character.
> 
> Diner Dash is sort of the same way in that its strong character isn't the
> core of the branding.  In DD-2 we still have Flo but now there are many
> restaurants.  By DD-X Flo might need to... like... uh... disarm traps in an
> ancient Mayan pyramid and Diner Dash X: This Time the Adventure is Real
> won't sell the story as well as Flo X: This Time the Adventure is Real.
> 
> Oh yeah, and copying is BAD!  Shame!
> 
> Thanks,
> T
> 
> 
> -----Original Message-----
> From: casual_games-bounces at igda.org [mailto:casual_games-bounces at igda.org]
> On Behalf Of Hal Barwood
> Sent: Friday, April 28, 2006 10:43 AM
> To: IGDA Casual Games SIG Mailing List
> Subject: Re: [casual_games] Copycats -- What Can Be Done?
> 
> Morning, all:
> 
> I don't think we should worry about copycat games.
> 
> Legal fights are expensive on purpose, and in entertainment few of these 
> get resolved in favor of the presumably abused parties who came up with 
> original concepts.  Copycat movies, TV shows, novels, coffee mugs, 
> automobiles, you name it, are as common as dirt.  The accepted term of 
> art for this practice, signifying it as a familiar and well-established 
> business concept for everyone, whether we love or loathe it, is "knock-off."
> 
> Does the iPod deter Creative, et al., from going after the MP3 market? 
> Not at all.  Our only practical hope is to get out there in front, 
> establish IP, get some branding consciousness, and move on.
> 
> If Diner Dash has a weakness, it's that the main character, Flo, doesn't 
> have franchise presence on her own, the way Indiana Jones has, for 
> example.  It's instructive that the designers at Eidos, who wanted to do 
> a Jonesy game, worked hard to establish an alternative to the intrepid 
> archaeologist with her own strong individuality.
> 
> 
> 
> Jim Stern wrote:
>> 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 <mailto: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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