July 2, 2022

Hello Dolly – on Video Game “Clones”, Laws and Other Stuff.

There’s been a lot of talk about Zynga of late.

That isn’t to say that I agree with their approach to making games – to lift all the best ideas and just make adequate facsimiles of them. Bad cloning is bad. Just trying to imitate rather than develop an idea is always going to be frowned upon, no matter who you are or what you are doing.

But the truth of cloning in the games industry is this – it is legal.

In order to protect your product from a clone, you have to provide evidence that the code being used is fundamentally yours – the idea, the concept, the visual style is very much open to imitation as long as the code itself is not similar to the originals. If code has been stolen – as is the focus of the current case between the guys behind the new MMO TERA, which NCSoft believes has taken code that was primarily being used by the team for a product being developed for themselves, and that no permission was granted when they went solo and decided not to be tied to NCSoft – there is a legal case. This is the focus of copyright law. Not the overall product, but the means of getting that product there. That means writers can clone a Twilight novel as long as they don’t actively imitate or steal dialogue from the actual novels.

Now, Trademark law is different. You can’t really make a commercial Mario game if you are not Nintendo – Mario is a trademark, and is protected by a very different set of laws. His image, his mustache, his outfit, his accent and even his name – all are covered by trademark laws. However, it doesn’t protect the idea of someone else making an Italian plumber of their own, as long as it can be proven to be sufficiently different to Mario. Mario himself is a trademark; something that Nintendo own the exclusive rights to. If Microsoft were to make a game called Mario Universe, there would be a huge legal spat.

The same goes for Intellectual Property laws. They are again a very different sub-species, where you have to prove that there is ill intent and/or that the images being used may be detrimental to the genre or the franchise in question. This is the segment of the law that often puts paid to many an ambitious fan game, because rather than falling foul of the commercial ambitions that govern some companies, this section often covers the basic ideas that already exist. But it is not a hard and fast line; as I mentioned, the general purpose for Intellectual Property law is to prevent a series being used against the wishes of the company, hence why it is invariably used in targeting those making fan versions of already established games – with the proper funding and execution, intellectual property law is a murkier, more disturbing sideline of the industry that can be exploited with some imagination, flair and intelligence.

It’s the combination of these three branches that means smaller studios have a tougher time of things; they have to be creative, smart and above all, prepared for the time someone takes an inherent liking to their project – or not, as the case may be.

This doesn’t mean it is all bad, however, as companies themselves prefer not to get embroiled in a legal dispute if things can be helped. With the free flow of information on the internet and the ability to hone in on specific suits being filed across the globe comes a stark and interesting development; whether or not it is in the interests of the company or the public in pursuing a lawsuit.

By this, I take a cheeky side-glance towards Bethesda, who are challenging the right of Mojang to make a game called “Scrolls” on the grounds it could be confused with their trademark “The Elder Scrolls”. This is a murky conflict that covers far more than the simple fight – much of the games dialogue is apparantly being written by Penny Arcade’s Tycho, which brings in a very different and interesting angle. Bethesda are not simply fighting an indie company still riding high on the backs of Minecraft – they are also challenging the work of a well-respected comic strip author, writer and commentator, with his own loyal fanbase.

Is it really in Bethesda’s best interests to persue this case to the bitter end? It is difficult. If they don’t challenge, they run the risk of others making game names dangerously similar to their own. But if they do challenge, as they are, they run the risk of alienating many of their customers (who may also be fans of Mojang or Penny Arcase) – or worse, falling foul of a public relations spat that could damage their net worth.

In contrast, we take a look at Sega. Sega were vilified some years ago when someone decided to make a perfect recreation and simulation of Sonic CD – from scratch. This meant doing everything, from the in-game physics to the remastered sound, to the code and the game engine to accurately and faithfully capturing every square inch of the original.

Sega it seemed at the time were not amused, and the project quickly went away. But recently, it came back – it transpires that Sega weren’t actually angry about it at all, and instead asked the guy if he would work with them to finish the product to a high standard, and get paid a salary for it as well. It, effectively, landed him a job. And we don’t complain about that because it is a perfectly interesting and warming story – if someone is doing something, and doing it really, really well, why not employ them and make it official?

From the current whispers, it also seems the recent Streets of Rage Remake may be headed in somewhat the same direction, as Sega realise that it is indeed a very, very good project. A faithful, intelligent and thorough recreation of a game that many have forgotten. Why not approach them and say, ‘Hey guys, we love the work. How’s about we make this official, pay you money to finish it off and release it as a budget title?’

Zynga, on the other hand, are the real problem, and there is a very good reason why the industry is desperately trying to find a way to hit them where it hurts.

Zynga are a talented company. But their ethos is to copy – to clone. That is what they have become famous, or rather infamous, for doing. Farm Town was released by small indie developers Slashkey in 2009 on Facebook. It was a free farm simulator, somewhat in the vein of Harvest Moon but with a little less emphasis on the marriage. It should have been their crowning glory.

But no. A couple of months later, Zynga released FarmVille – a clone in almost every regard, based on a freemium model, with a slightly more social model. That is, it’s free to download and play but almost everything else associated with it costs money. It became far more popular than the free Farm Town, which still gets updates every few months.

So, your question may be, why did Slashkey not ask for something to be done about it? That is a valid question. The thing is – Zynga contribute a lot of money into the coffers of Facebook, and by token, Facebook are unlikely to want to remove a product that is making them a lot of money. A legal case against Zynga would have been costly and time-consuming, something one suspects Slashkey were unprepared for – and even if they were, the chances of a successful defence would have been slim to non existent.

This is what the industry now sees in Zynga. Whereas it defends itself as an indie and social gaming creator, it is neither – it is a very large company worth approximately $8 billion, with the power and ties to a platform such as FaceBook and the likes of Apple to make life decidedly uncomfortable for indie developers. If they can make it, Zynga may decide they can do it better. And maybe they can. But should they continue to bulldoze talented studios in their thirst for new ideas?

There’s nothing inherently illegal about what Zynga are doing. Hence why I say that Slashkey would have struggled to defend itself – as long as the code is proven to be different, and Zynga can defend themselves on the social additions, they have every right to copy the idea. The real question is – is this healthy?

I can only theorise the answer as no. Which is why many are frustrated at the industry as a whole, because the conventions and laws that have been provided – coupled with very different IP, Trademark and Copyright laws between the US, Europe and Asia – have created a perfect environment for the likes of Zynga to actually thrive. It’s too expensive, too difficult, too complicated and too open to risk to challenge Zynga. They may make good clones – but the real surprise is how well they know their way around the legal minefields of the industry to be able to operate in this way.

All this said however, I am surprised it has taken this long under the circumstances available for a company like Zynga to troll the market. The conditions have been ripe and available for a decade or so, so why hasn’t this been an issue for so long? Why now? Why is it a problem for people now?

Is it their value? Their presence? Or the fact they seem to be so intimately tied to much bigger brands, shields which they can defend themselves with? Is it that their approach is hurting the industry, or the fact that Zynga are hypocritical and cannot bear to see their copies… well… copied, and aggressively defend their own copies with some ferocity?

I’m going to say this now… Zynga are not the problem.

Again, Zynga are a symptom of much deeper ills within the industry. Their existence is helped, not hindered, by the overly-complicated and often incredibly vague legal system that allows for sometimes fruitless and expensive legal wranglings – there is so little protection for the little developers now that the indie market is fast becoming filled with companies that aren’t really indie – they’re huge companies, oft affiliated with much bigger ones, that have taken cues from the likes of Mr Tim Langdell and now aggressively stalk the landscape of the industry.

The fear I hear is without some controls, the next generation – of open online marketplaces – could become far murkier than ever before, and rather than encouraging new talent may even begin to damage it, if not begin to eradicate it. Why bother making an indie game if there are no protections or guarantees to your ownership of it?

Problem is, controls are difficult. Where do you stop? Bayonetta was, ostensibly, a clone of Devil May Cry – but improved on the formula by such a huge degree that it has ousted Devil May Cry as the lead player in that genre. With controls, could we see a world where ideas can’t be improved upon, where agreements have to be met? Who gets to own what? Who gets to call the shots? How much money would it cost, and how many legal suits would have to be filed along the way?

I didn’t say I was going to make sense of any of this. Because, frankly, it doesn’t make sense. As much as I say Zynga are a symptom of deeper ills, I could say that about a vast range of issues within the industry – such as THQ’s decline for focusing on new IP, whereas Activision make billions from rinse repeating their old ones. Somehow doesn’t seem that fair really, but then, the industry isn’t fair. Likewise, the arguments between Free To Play and Subscription MMOs – which cost more in the long run? If you’ve subscribed to World of Warcraft since release, do you realise you’ve spent £755.16 on subscription fees alone in the last seven years? That’s before you add in transfer fees, pets and mounts you can buy and oh yes, the games themselves at £30/£60 a pop, depending on if you buy normal or collectors edition.

The industry is a complicated bag of weird, insane, crazy and sometimes downright ugly business practices. It is NOT a pleasant place to want to get into – the chances of someone just entering the industry now at a low-level position becoming the next Shigeru Miyamoto, Shinji Mikami or Hideo Kojima are so low as to be negligible in the long term. Heck, probably less chance of becoming the next Peter Molyneux! Couple that with the oft-vague legal ramblings and the ever-present risk of financial ruination, and it’s really not a pleasant world at all. Long hours, late nights and few holidays are the reality for the majority in the industry – both commercial and indie. And none of them have stable job prospects.

So spare a thought on that when you buy your next game, or download a Zynga title, or Angry Birds. The industry provides us, individually, with hours of entertainment, weeks of fantastic content to keep us amused, scared, intrigued and addicted.

But it’s a filthy, mangy, dirty, knotted beast in reality. Sometimes it is better not trying to figure out how the industry works… because all you end up with is a very long essay-like blog post and a headache. But know this – if the industry does want to challenge Zynga, and its ilk, then they must be aware that doing so will open the floodgates – and the crap that spills forth once those gates are opened will cover the whole industry in a thick, sludgy layer of excrement that it has tried so desperately hard for so many years to hide away. It won’t be limited to clones – it will expose the innards of the industry, in their oft rotten glory, and what they see and what we end up seeing will invariably pose some awkward questions, and call many to answer some deeply troubling home truths.

Sleep well! XD


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