All Your Base Are Belong To Who? Indie Games And Intellectual Property

The abuse of intellectual property among handheld and social gaming titles has festered into a major point of contention as indie games are hitting the commercial and critical big time. The emerging gold rush of iOS app games and the shaky legality of intellectual property for the game medium have led to rampant poaching of core game mechanics and aesthetics by competing indie developers. Even the universally-loved Angry Birds (released December 2009 by Rovio) is considered red-handed of pilfering flash title Crush the Castle (released April 2009 by Armor Games) for its basic concept of petrary physics. The thefts that most often make headlines are wholesale rip-offs of original game ideas, often with confusingly similar titles and near-indistinguishable art assets.

Here’s a look at some more shady intellectual property dealings in the indie game world:

Ridiculous Fishing vs. Ninja Fishing
Gamenauts' Ninja Fishing recently broke into the Top 10 on the Apple app store, peaking at #5 for paid apps. The blogosphere took note that, with one small exception, the title was a clone of Vlambeer's flash game Radical Fishing, and their planned iOS sequel Ridiculous Fishing. Read here to see Brandon Boyer's initial breaking of the story, and a heartbreaking open letter to Gamenauts from one of Vlambeer's developers on how personally affecting this theft was.

Minecraft vs. Fortress Craft
Fortress Craft, an unauthorized Xbox port of architectural sandbox PC game Minecraft, was recently announced to have been the first Xbox Live Indie title to reach $1 million in sales. Developer ProjectorGames defends themselves by offering that Fortress Craft is “an amalgamation of Dwarf Fortress and Minecraft”.

Dwarf Fortress vs. Minecraft
In a recent New York Times Magazine profile on Dwarf Fortress, the cult city-building ASCII freeware game, project leader Tarn Adams admitted feeling uneasy about Mojang's Minecraft. The reporter writes, “Meanwhile, the smash success of the world-building game Minecraft, which is in many ways a more user-friendly version of Dwarf Fortress (and which has earned its Dwarf Fortress-loving creator millions of dollars), has only been good for Tarn, driving curious new players his way. Still, in the only moment I heard him speak with anything like bitterness, Tarn called Minecraft a ‘depressing distillation of our own stuff.’ He paused, adding more magnanimously that the game ‘has its own things going for it.’ The problem, he concluded, ’isn’t with Minecraft so much as it’s with society.’”

Zynga vs. The World
Farmville developer Zynga has cemented their status as industry posterboy for both the crushing dominance of social gaming and the viability of game plagiarism for independent titles. Past infringements have been upon Mob Wars by Psycho Monkey, Playfish’s Restaurant City, and FarmTown by Slashkey.

Team Fortress 2 vs. Final Combat
Regrafting Team Fortress 2 by Valve Software right down to the marketing videos and free-to-play option, company Xunlei produced clone Final Combat for the Chinese market.

Mirror's Edge vs. The Amazing Spider-Man trailer
Finally, the climax of the recent theatrical trailer for Hollywood reboot The Amazing Spider-Man bears more than a passing resemblance to the first-person free-running gameplay action of 2010's Mirror's Edge from DICE.

Shameful, Yes. But Is It Legal?

With idea plagiarism rampant, we were curious about the legal implications of all these rip-offs. Why wasn’t anyone doing anything about it? We reached out to Mark Methenitis, Dallas attorney and writer of Law of the Game for Joystiq, to help answer some of our questions regarding independent games and intellectual property.

Mark Methenitis: I think a lot of what’s unclear to many people, and a lot of what I’ve tried to address in Law of the Game and LGJ, is confusion between what is protected by copyright, trademark, and patent. In the most abbreviated manner, copyrights protect expressions; trademarks protect brands/reputations; patents protect ideas. So, in a way, yes, Miyamoto could have patented jumping or id could have patented 3D First Person Shooters. But those patents would have both already expired.

The idea that copyright prevents copying is a half-truth. Copyright protects the expression. The actual words in a book put together as a whole. The complete composition that is a piece of music or a movie. In the case of software, the source code and the final product as a whole. But you can’t protect the idea. I’ve explained this in much greater detail in a number of articles (for example). It’s the core concept that Zynga has capitalized on. They didn’t create the farm game, and no one had a patent to a farm simulation casual game, so Farmville was born.

Most “idea thefts” aren’t pursued because they can’t be. The Crazy Taxi vs Simpsons Road Rage case was a rare example where there was a patent and therefore ideas could be pursued. I can understand how it can be frustrating to developers to create something and have someone create something similar and then profit from it, but such is our intellectual property system. Obviously, where there are legitimate claims (copyright or otherwise), most companies won’t hesitate to pursue them. Litigation strategy can be a complex analysis and does vary a lot on a case by case basis.

The biggest thing a small developer can do to protect their IP is register it. It’s exponentially easier to protect a registered copyright or trademark than an unregistered one, and it’s worth every penny of the cost. Beyond that, much of success is a mix of luck and marketing for small developers. That, and persistence; not everyone hits a home run on their first at bat.

Game cloning (fishing or otherwise) is legal, and has become pervasive (especially in the social/mobile game space). There’s nothing legal to discuss, really. It’s an ethical point you either believe in (it’s legal and I should be able to make money) or don’t (in a creative industry, you should be more creative and succeed on your own ideas). I tend to fall somewhere in the middle. I’ve seen clones that take a decent idea and turn it into a great one; and I’ve seen clones that are pretty shameless and don’t really serve much of a purpose. From a legal perspective, if we start trying to expand copyright to ideas, then we would have no new movies or music or books or games. Everything draws inspiration from somewhere. There’s little, if anything, that’s 100% original these days. Even the most original stories likely draw from archetypes that date back centuries.

There are still ways I think IP in the games industry could be improved (I have a law review article on this due out this fall), but by and large, this isn’t a question of maturity, it’s more a question of IP laws being tweaked to better align with the digital today. Most of them still trace back to the days of the printing press, so there’s certainly room for improvement.