Copy or not: Games, Avatars, & Machinima- Are courts cracking down on copycats?

     Many people have Facebook pages and smart phones and they’ve probably played games on both. If you are one of those people, then you’re probably familiar with games like Words with Friends, Scramble with Friends, and Candy Crush Saga. These games are widely popular and totally addicting. Whenever a game proves to be popular among the masses, ten more pop up, just like it. For example, the first popular game I remember on Facebook was Bejeweled Blitz by PopCap. It is a puzzle game, where you compete with Facebook friends to match and detonate as many gems as you can in 60 “action-packed seconds”. In Bejeweled Blitz, you match three or more jewels and create flame gems, star gems, and hypercubes. You can also use detonators, scramblers, and multipliers. Jewel Mania is a puzzle game by Team Lava. It is a puzzle game where you swap jewels to match three or more jewels, which also detonate. For the most part, these games are pretty similar. There is one notable difference. Jewel Mania has obstacles such as walls and pitfalls. There are many other similar jewel matching games such as Jewel Fever, Jewel Star, Jewel World, Gem Blaster Blitz, etc. For the Candy Crush lovers, there is also Jewel World Candy edition, Farm Fruit Heroes, and the list goes on and on.  

     How can developers create games that are seemingly so similar to the original versions? Here’s why: “Copyright only protects the specific expression of an idea and not the basic idea itself, shameless game cloners can often get away with stealing the underlying rules and structure of a popular game without legal trouble. That is, so long as they slightly tweak the “expressive elements” like artwork, music, and sound effects.”[1] But there is hope.

     The recent ruling in Spry Fox, LLC v. LOLApps, Inc., shows the legal theory surrounding game copyright may be slowly expanding in a way that offers developers more protection for more parts of their work.[2]  Spry Fox is the maker of Triple Town, a popular match-three/village-building game. They are suing 6waves Lolapps, which cranked out the extremely similar Yeti Town after backing out of negotiations to make an iOS Triple Town port.[3] The games are practically identical from a basic gameplay and progression perspective, right down to the prices of analogous items in the in-game stores and similar language in explanatory dialogue boxes.[4] Yeti Town‘s main innovation seems to be small cosmetic differences—the enemy characters are changed from bears to yetis, the graphics are rendered in 3D polygons rather than 2D sprites, etc. 

Image   

http://www.edge-online.com/features/opinion-tale-two-towns/

     Although Spry Fox cannot copyright the basic rules and idea of Triple Town, the court noted that Spry Fox can claim copyright protection for things like “plot, theme, dialogue, mood, setting, pace, and character” (the court compared games to movie screenplays in this regard. And while 6waves’ Yeti Town didn’t precisely copy any of these elements from Triple Town, the court found the similarities in these areas were great enough to let the case go forward. The court noted: “A writer who appropriates the plot of Gone with the Wind cannot avoid copyright infringement by naming its male protagonist “Brett Cutler” and making him an Alaskan gold miner instead of a southern gentleman. The differences between Triple Town and Yeti Town are more meaningful, but it is at least plausible that they are insufficient to overcome the similarities.”[5]

     So how does this impact the digital world? Hopefully, video game copyright owners will soon receive more protection against copycat developers. Since courts seem to be getting more familiar with disputes involving video games. This was not the case in 2007. Then the big question was: What happens when one avatar tries to sue another avatar for copyright infringement in an actual court? Kevin Alderman, known in Second Life as Stroker Serpentine, one of SL’s leading entrepreneurs tried to do just that. He believed Volkov Catteneo Catteno was selling unauthorized copies of his SexGen bed, a piece of furniture with special embedded animations that enable players to more or less recreate an adult film with their avatars.[6] Alderman sold his version for the L$ equivalent of USD$45, while Catteno sold his alleged knockoff for a third that price, undercutting him. Alderman threatened to sue, but he had one small issue: He didn’t know who to sue, since he didn’t know the real life identity of the person behind the avatar. Maybe he would have better luck in today’s courts.

     How does this affect Machinima production? I will admit, yesterday I’d never heard of machinima. Even after reading the materials, I was still clueless. Now, after watching a few videos on machinima.com, I understand the concept. Machinima has become increasingly popular, not just among video game fans, but among independent artists in general, for its low cost and time efficiency relative to live action film or other forms of computer animation. According to machinima.com, the target group is males aged 18-34; this could be why I didn’t know about it.

     For those like me who are also clueless, “the word ‘machinima’ is a of ‘machine’ and ‘cinema’ and refers to the process of creating real-time animation by manipulating a video game’s engine and assets.[7] Essentially, it is filmmaking using the computer-generated images of a video game. The three-dimensional physics engines of modern video games provides computer animation in real-time, without the need for time-intensive rendering. Screen capture technology, available in most video games, allows a user to record the action as various players control characters in the game. Then, voice-overs are recorded independently and layered onto the visual recording.[8]

     Machinima video will be considered an infringing derivative work of the particular video game used in production.[9] Most examples of machinima incorporate graphics (known as art assets) directly from the video game, which would qualify as infringement. While video game publishers may be reluctant to sue fans that distribute machinima videos for free, commercial machinima works are more liable to face legal challenges from copyright holders. Nevertheless, video game copyright owners would benefit from granting licenses to machinima producers since a it could serve as an effective marketing device for the video game title, and also build brand loyalty.

     The bottom line: even though machinima productions may infringe upon copyrighted video games, these legal issues are not likely to impede the development of the genre as a whole. On the other hand, holders of video game copyrights have strong incentives to license their intellectual property in order to encourage this art form.[10]

 

 

 

 

 

 

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~ by nanacole on September 29, 2013.

12 Responses to “Copy or not: Games, Avatars, & Machinima- Are courts cracking down on copycats?”

  1. The basic issue with virtual copyrighting issues seems to be where the line is drawn on copyrighting ideas. Although the suit discussed in the post between Triple Crown and Yeti Town is a clear cut infringement, the dispute between Amaretto Ranch Breedables v. Ozimals, Inc., 2010 WL 5387774 (N.D. Cal. Dec. 21, 2010), represents more of a gray area. Even though ultimately the court decided these images were not infringement, the opinion brings up more questions than answers. What bright line rules can be developed so that creators know the difference? We know that simply changing the artwork and slapping a new name on it is insufficient, but that we can’t copyright general ideas. With all of the different apps and games swirling around, creators are facing copyright infringement at a more rapid pace than ever. Not to mention that with all of these creators working in the digital complex, it is entirely possible that two very similar worlds may be created without the intention of ripping off someone else’s work. I think that the courts will have to place more concrete guidelines for coders to follow, in the form of bright line rules which the average person—nota legal scholar—can understand the line between an idea and infringement.

    • Yes, I agree. The way these games are popping up, it is almost impossible for someone sitting in their dorm room creating games to be sure that they haven’t copied someone else’s idea. You would think it would be almost similar to the way infringement works for music, but I think games are more complicated than that.

  2. I thought this was a great post, Nicole. What you said about Alderman not knowing the identity of the person who copied his sex bed in Second Life raises an important issue. Most people who want to sue for copyright infringement will want to know that they are actually going to be able to recover some damages from the infringer, or else get an immediate injunction. How will they know if they are suing a wealthy person, or a student who is judgment-proof? When creators of digital media do not use or publish their legal name, as they hardly ever do, the process of finding out their true identity will be costly and time consuming. The plaintiff must subpoena the website to get the IP address responsible for the infringing activity. Then, the plaintiff will have to subpoena the ISP of the IP address to get their actual identifying information. This process is long, requires the use of lawyers (expensive), and sometimes is unsuccessful if the plaintiffs can’t prove the basic elements of their case. This last part can be especially hard in the realm of copyright infringement, as you have pointed out. This is just one more hurdle that creators of digital media face to protect their ownership rights of their creations.

    • There wasn’t an update on the Alderman case, but I wonder if he was able to find out who it was.

  3. This post sheds light on a theme that we have seen before: anonymity. Anonymity is truly a criminal’s delight. The internet, and in this case, virtual media, allows crime to happen behind a cloak that serves to shield the perpetrator’s true identity. As was alluded to, technology advances every day. Having said that, it follows that despite anonymity becoming more and more attainable, one would think that technologies are also improving on the other end as well: ones that serve to combat anonymity. But even with the technologies that allow for such disclosure, utilizing these processes are time consuming and expensive. They require the efforts of multiple entities, courts included. They also implicate privacy concerns. These are hurdles that the law is going to have to address. One thing that is for sure is that with technology come jobs. Creators of digital content must feel as though their work will be protected. Without that assurance, innovation will cease. The law must find a way to protect digital work sufficiently without suffocating the marketplace with overly broad application of intellectual property law. This is not a new challenge, but one that becomes more difficult in the context of virtual media.

  4. My initial impression after reading the material and Nicole’s post is that drawing line between what is permissible and impermissible in the context of online games is very difficult. I think that the fact a person cannot copyright a “basic idea” but only the “expression” of that idea is making to make it very difficult to develop a reliable legal standard. I have never played either of games depicted in the photo, but just by looking at they look very similar to other online games I have played or seen advertised. Some of conditions that the court noted that could be copyrighted, “mood, pace, setting” seem be open wide ranging interpretations. How exactly do determine if “pace” or “mood” has been copyrighted? Furthermore, to what extent can something like setting be copyrighted? I see can examples of easy application such as the planet in the Avatar movie and ones that can be more problematic like a snowy mountain village. All in all I believe that these types of factor lend themselves to greatly to subjectivity as opposed to an objective criteria. With that said I am not sure if there is an easy solution. The virtual medium is rapidly evolving and everyday more and more people produce online content everyday. I believe determining what a “basic idea” is and what is subject to copyright is only going to become more obscure everyday.

    • I agree the whole pace and mood thing is questionable. I tried searching for the Yeti Town app just to see how similar, but it doesn’t exist. I am guessing they had to take it down.

  5. This post raises some interesting issues. I think it is a good thing that video game creators can get some copyright protection, especially in instances like “Triple Town” and “Yeti Town”– where they even copied some of the dialogue and the prices for certain items. That made me think of the app that I’m sure many of us have used and has done millions in revenue, Words with Friends, its obviously a variation of Scrabble. I wonder if Hasbro has tried litigating.

    The anonymity issue is certainly a hurdle for people of SL. Although in a documentary I recently watched about SL called Life 2.0, a clothing line and pre-made homes creator and seller found out someone was copying her items and selling them at a discount. She decided to litigate and somehow found out who the real person was behind the avatar (probably via her attorney using a PI). She was able to reach a settlement with the person stealing her designs where the person agreed not to steal anymore items and she received a small amount of money.

  6. Many of you may know the game Tetris, which is probably one of the most copied games in the history of online games. I was in the audience earlier this year at a presentation from the lawyers for the owners of Tetris IP. Tetris was successful in a suit against one of its imitators because the imitator violated the expressive feel of the game. The lawyer indicated that they sue whenever Tetris is copied and sometimes the win but sometimes they don’t. The Tetris case was very similar to the Spry Fox ruling. There were other horror stories at the conference as well including one about a young developer who won a an award for the best new game of the year. By the time he published the game there was already a profitable clone of it up and running!

    Machinima can be a thorny issue for both artists/developers as well as for the game developer itself. Some machinima may actually be a boon to the game developer while some may endanger the game IP. We will look at some machinima in class and discuss further.

  7. This reminds me of the discussion we were having regarding WoW and similar clones of it popping up in China, but here the games are relatively simplistic. I find it really hard to fault the copycats for making these types of games. The Triple Town case is a bit extreme, but I agree with the idea that “general” ideas cannot be copyrighted. When the game is so simplistic a puzzle that you just have to fit different shapes into a box, it doesn’t make sense that Tetris would be the only game to be able to do that.

    The Machinima issue is interesting as I also have never heard of it before. I agree with the OP that there are strong incentives for these game companies to license out their “worlds” for this developing form of art especially if it becomes more popular.

  8. I have always thought the current system of copyright protection is highly flawed. The protection of expression as opposed to ideas is good in theory but the issue always becomes how similar is the expression. In the case of the Yeti Town game it is ridiculously similar and any reasonable person would find that it is ‘unfair’ that they are profiting from this copying. There are other games, say Grand Theft Auto, that are wildly popular and have produced many imitators, like Saint’s Row, Sleeping Dogs, etc, that run on the same platform of a sandbox game where you do missions and run amok in an open sandbox world. These are similar but are unique enough to warrant existing and profiting on their own merits. A factfinding journey would have to be undertaken in every such scenario and I don’t know how feasible that is with the numerous cases that come up like this — probably not very. As for machinima, I understand the ways where it may cause adverse issues for a game company’s IP but I believe that the support that these creative expressions by fans engender keep that same IP thriving and ultimately benefit the game companies in the form of sales and goodwill much more than they harm.

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