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.” 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. 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. 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. 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.
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.”
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. 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. 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.
Machinima video will be considered an infringing derivative work of the particular video game used in production. 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.