When Game Clones Aren’t Okay (Game Clones 2: Tetris Boogaloo)

As I wrote last week, Candy Crush Saga doesn’t get King into trouble with Popcap because King didn’t copy Popcap’s particular expression of the “match-three” game idea – Popcap and King both made their own separate expressions of a “match-three” game. Obviously, straight up lifting sprites, songs, characters, etc. from another game and putting them verbatim into your game is definitely copyright infringement.

But sometimes, one person’s expression can get awfully close to another person’s expression without necessarily copying it pixel-for-pixel. In those situations, we still might have some copyright infringement on our hands (and IP lawyers may sense a great disturbance in the Law).

“Quiet! Somewhere… a copyright is in trouble. I have to go!”

Tetris by any other name

Tetris was released way back in 1984, and its been immensely popular pretty much ever since. Much of the appeal of Tetris is in its simplicity (e.g., the seven pieces – or “tetrominoes” – represent the seven possible combinations of four squares connected orthogonally, the pieces fall down a 10×20 grid, etc.), but this simplicity also makes cloning Tetris a fairly simple task. They say “imitation is the sincerest form of flattery,” and over the years, Tetris has been flattered over and over again. As such, The Tetris Company, the company that holds the rights to Tetris, has been pretty busy doing its best to stomp out all these Tetris clones like a game of cease-and-desist whack-a-mole. (Someone should make a game called “cease-and-desist whack-a-mole.”)

One recent attempt at Tetris flattery was so flattering that it actually went all the way to a courtroom. In 2009, a company called Xio Interactive released a Tetris clone called Mino on Apple’s App Store. To Xio’s credit, while developing Mino, Xio did contact the Tetris Company in an attempt to get an official license for Tetris. Of course, Mino would be competing with the official Tetris iOS app, so the Tetris Company refused to give Xio a license. Xio’s response was essentially, “Meh, we’re doing it anyway,” and Xio went on to release its own Tetris-esque game for iOS.

“I’ll make my own Tetris! With blackjack! And hookers!” -Xio Interactive

Not surprisingly, Xio was subsequently sued by The Tetris Company. (Tetris Holding, LLC v. Xio Interactive, Inc., 863 F.Supp.2d 394 (D.N.J. 2012), if you’re into that sort of thing.) Now, when someone is being sued for copyright infringement, you might expect the defendant to deny copying the plaintiff’s game, or that the plaintiff’s game merely served as inspiration (e.g., Fighter’s History), or something else of that sort.

Not Xio. During the case, Xio openly admitted that its game wasn’t just “inspired” by Tetris, but that “its game was copied from Tetris and was intended to be its version of Tetris.” Yep, that is a direct quote from the record. (Have to give them points for directness, at least.)

Xio’s defense was that while they did copy Tetris, they did it “in such a way so as to not copy any protected elements after diligently researching intellectual property law.” So Xio’s defense wasn’t that they weren’t really copying Tetris, but that they consulted with an IP lawyer to make sure they were copying it in a way that wouldn’t get them into trouble. More specifically, they argued that they only copied the rules of Tetris – essentially, the “idea” behind Tetris – and that their game was merely their own expression of those rules.

Merger Doctrine

Copyright protects expressions of creative ideas (art, literature, music, etc.). Copyright doesn’t protect functional elements (like game rules), because that’s what patents are for.

Copyright protects expressions of creative ideas (art, literature, music, etc.). Copyright doesn’t protect functional elements (like game rules), because that’s what patents are for. To illustrate this difference, consider the 1990 NES game Dr. Mario.  Nintendo actually has a patent on the game mechanics of Dr. Mario, but the expressive elements of Dr. Mario would be protected by copyright (like the particular colors and shape of the pills, the design of the germs, Mario up top hurling the pills into the bottle, etc.). Xio argued that if the Tetris Company wanted to protect the rules of Tetris, they should have gotten a patent.

Most of the time, there’s a fairly distinct difference between a game’s functional elements (game mechanics) and creative elements (artwork, music, story). But sometimes, an idea is so simple that there are only a very limited number of ways it could possibly be expressed. In these instances, the expression and the idea are said to “merge” into each other (hence, the merger doctrine). When that happens, the expression can’t be protected by copyright because it would basically mean protecting the underlying idea with copyright too, and we really don’t want that to happen.

One example of the merger doctrine came up during one of the many fistfights between Microsoft and Apple in the ‘90s. (The citation for this particular fistfight is Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435 (9th Cir. 1994).) Apple accused Microsoft of infringing on Apple’s copyright of the “trash can” icon in their GUI, but the court found that the trash can icon was virtually the only practical way of expressing the idea of deleting (or “throwing away”) files. The merger doctrine meant that the idea of deleting files in a GUI and the expression of that idea as a trash can icon “merged,” such that a trash can icon was an unprotectable element of the GUI. Therefore, Apple couldn’t stop Microsoft from using a trash can (if anything, Apple could only stop Microsoft from using an exact copy of Apple’s trash can).

Xio tried to argue that the rules of Tetris were so simple that there were only a limited number of ways they could be expressed, so the merger doctrine should apply. Granted, there were a number of elements that Xio copied where the merger doctrine might have been applied if evaluated individually: showing the next piece to fall, “garbage” lines of random junk at the start of some games, “ghost” pieces that show where a piece will land, etc. (For example, how many different ways can you think of to show the next piece to fall, other than showing the next piece to fall.)

However, the judge concluded that Xio’s copying of all of those elements in the aggregate constituted “wholesale copying,” the only purpose of which was “to avoid the difficult task of developing its own take on a known idea.” The judge also concluded that Xio copied the overall look-and-feel of Tetris (i.e., the visual expression of Tetris). I mean, hell, many of the pieces in Mino were even the exact same color as those in Tetris.

The fact that I can’t even tell right away which one of these is Tetris and which one is Mino is probably a bad sign for Xio.

Trade Dress

Though most of this case was about copyright, it also briefly touched upon trademark law. Unlike copyrights and patents (which exist to protect creators), trademark law exists to protect the public – specifically, to protect consumers from confusion in the marketplace.

A trademark is “any word, name, symbol, or device, or any combination thereof” used in commerce to identify a specific product or manufacturer. The purpose of trademark law is to protect the fragile minds of consumers like us: if anyone could use anyone else’s company name or logo on their own products, unscrupulous manufacturers could try to trick consumers into thinking a product was made by someone else. For example, a new company could try design or market their product to look like it was manufactured by a more reputable or established company, so as to benefit from the other company’s reputation.

Trade dress is a subset of trademark law that protects a product’s design or packaging that identifies its source: where trademarks refer to a name, logo, or slogan, trade dress refers to a particular “look.”. To qualify for trade dress protection, the design must have acquired a “secondary meaning” in the public: that means it has to be so pervasive in the market that a significant number of consumers would recognize the design and associate it with a particular manufacturer.

Nobody reading this would look at this cardboard box of food and think, “Hey, can you tell me where you got that? Because I have absolutely no idea.”

Tetris has been around for so long and has achieved such a level of brand-awareness that many people can recognize the distinctive visual indications of Tetris (e.g., the specific colors used, the styling of words and game screens, etc.). Xio designed Mino to look so much like Tetris that a consumer browsing the App Store could easily have mistaken Mino for an officially licensed version of Tetris. (A more cynical person might think that was Xio’s intent.) If a consumer bought Mino from the App Store thinking it was a “real” version of Tetris, then Xio would be riding on (and profiting off of) the coattails of the Tetris Company. As such, court concluded that Xio infringed on the Tetris Company’s trade dress.

tl;dr: If you copy pretty much everything about a super popular game, and you make your copy look so much like the original game that people will confuse the two, you’re gonna have a bad time.

Candy Crush Saga, Bejeweled, and Why Game Clones Are a Thing

“Why don’t the developers of Bejeweled sue the developers of Candy Crush. Isn’t there an IP issue here?” -Bernard M.

Of the four broad swaths of intellectual property (patents, copyrights, trademarks, and trade secrets), the one that applies to this issue is copyright. Copyright protects expressions of creative ideas. Traditionally, copyright has been used to protect literature, music, art, that sort of thing.

Fast forward to the 21st century, and video games are now a thing. Video games are expressions of creative ideas (and yes, they are art), so video games are protected by copyright. When one looks at Candy Crush Saga on one hand and Bejeweled on the other, it would be reasonable for the average person to think, “uh, yeah, that’s the same thing, they copied it.” So why didn’t King violate Popcap’s copyright on Bejeweled?

The Idea-Expression Dichotomy

Here’s where it gets a little unintuitive. Copyright protects the expressions of ideas, but it doesn’t protect the ideas themselves. This concept is called the idea-expression dichotomy, and it makes a distinction between an expression or manifestation of an idea and the underlying idea itself.

Popcap released Bejeweled back in 2001, when the earth was young and life was simple. King releases Candy Crush Saga in 2012, and it looks and plays an awful lot like Bejeweled. But both Bejeweled and Candy Crush Saga are simply two different expressions of the idea of a “match three things” game. In fact, Bejeweled is itself a new expression of the “match-three” idea behind Shariki, a DOS game released in 1994. So in this situation, unless King actually copied the particular expressions that Popcap used in their game (e.g., the artwork, background music, or sound effects), King is free to make their own expression of the idea of a “match three things” game. (Note: There are some instances where a court may find infringement beyond this kind of literal copying, but for simplicity’s sake I’ll reserve discussion of that topic for next time.)

Candy Crush Saga, Bejeweled, and Shariki: Three manifestations of the Platonic ideal of the match-three game.

Scènes à faire

Another concept that limits what copyright can and cannot protect is scènes à faire, which is French for a “scene that must be done.”  Scènes à faire refers to scenes, characters, or other elements that are pretty much necessary to tell a story of that genre. For example, a Western will have cowboys, a saloon, revolver duels at high noon, etc.; a science fiction story will have starships and space travel, aliens, energy weapons, etc.; a medieval fantasy story will have knights, kings and queens, wizards, dragons and other mystical creatures, etc.

One of the most famous instances of scènes à faire being applied to video games occurred in 1994 when Capcom sued Data East for allegedly copying Street Fighter II. (The case citation is Capcom U.S.A. Inc. v. Data East Corp., 1994 WL 1751482 (N.D. Cal. 1994) for all you law nerds out there.) Data East’s 1993 game, Fighter’s History, was a 2D one-on-one fighting game like the Street Fighter series. Capcom took issue with the many similarities between the two games: several characters had very similar appearances (e.g., Fighter’s History’s Matlok, Feilin, and Ray looked a lot like Street Fighter II’s Guile, Chun Li, and Ken), many special moves (and the controls to perform them) were nearly identical, and the overall presentation of many parts of the game were the same (e.g., the VS. screen, character selection, vitality bars, etc.).

Two different expressions of the idea of “Blonde American man travels to China, attempts to punch Chinese woman in front of her countrymen”

The similarities between the two are glaringly obvious. In fact, the initial proposal for Fighter’s History was a nine page document with twenty-two separate references to Street Fighter II, so Data East all but admitted to getting “inspiration” from Capcom. However, as with the match-three games previously discussed, the question the court had to answer wasn’t just whether there were similarities between the two games, but whether those similarities crossed the line of infringing Capcom’s copyright on the protectible elements of Street Fighter II.

First, as far as the controls and button sequences for special moves, the court found that those weren’t protectible by copyright. When you have an eight-direction joystick and six attack buttons, there’s a fairly finite number of combinations you can assign to your special moves, especially when you’re trying to make those inputs somewhat intuitive (e.g., down-forward + punch makes a certain amount of sense, control-wise, when you’re trying to get your guy to shoot a fireball forward, out of his hands).

Regarding the characters, while there’s certainly parallels to be drawn between several of them, Data East’s argument was that Capcom’s characters were all just stereotypical representations of fighters. As such, for the genre of fighting games, character archetypes like “Japanese karate guy,” “Chinese kung-fu lady,” and “Angry blonde American martial arts master” are scènes à faire, and Capcom can’t lay claim to all representations of those types of characters. Therefore, Data East would have infringed on Capcom’s copyright on Street Fighter II if they had included a female Chinese martial artist named Chun Li with a blue dress and hair buns in their fighting game, but they weren’t infringing by including another female Chinese martial artist named Liu Feilin.

The UI elements, like the life-bar at the top of the screen, fall under the category of non-protectible scènes à faire as well. There are only so many different ways to visually convey the concept of “a finite amount of vitality that gets reduced when the character is hit,” so we can’t expect Capcom to be able to stop other companies from using the concept of a “life bar” in any other fighting game. And even if they tried, Nintendo might like to have a word with them regarding Punch Out!!, which came out in 1984.

Mike Tyson’s Punch Out!!: Pioneering the use of life bars and blatant racial stereotypes in fighting games.

This sort of thing happens in other forms of media all the time. Friends with Benefits and No Strings Attached were arguably damn near the same movie. But unless one movie straight up used the script of the other, they’re both allowed to express the idea of “guy and girl agree to casual sex without emotional attachment but then of course they fall in love by the end of the story.” An argument could be (and has been) made for other things, like Antz and A Bug’s Life, or Babylon 5 and Deep Space Nine. They’re different enough, but people have compared them for starting off with roughly the same idea (reluctant crew of a space station working towards peace between hostile races, a self-aware talking ant struggles with the concept of individuality, etc.).

Recycling Game Mechanics

For what it’s worth, at least Candy Crush Saga added some new elements to the traditional “match-three” game. For example, the unique effects of the bonus candy that appear for matching 4 or 5 things, the interactions between those bonus effects when combined, and environmental hazards like the goddamn chocolate that won’t stop getting in my damn way. None of those mechanics were in the original Bejeweled.

Fighter’s History introduced a “weak point” mechanic to the fighting game genre, wherein each character had a specific weak spot (i.e., head, chest, etc.), and if the opponent scored a series of hits on that particular spot, the character could be stunned once a round.

It certainly sucks when a company pretty much copies all of the game mechanics of another game verbatim and adds nothing new. But that’s an unfortunate consequence of not allowing game mechanics to be protected, and in order for video games to continue to evolve, we definitely don’t want companies to be able to protect every new game mechanic. Otherwise, the first time any new idea showed up in a game, no other game could use it, and the medium as a whole would stagnate.

Game developers “recycle” each others’ ideas all the time, and it’s a fairly integral part of the continued growth and evolution of the video game medium for game devs to use existing ideas and improve upon them.