Steal like a game developer

Cloning in games is nothing new. It’s as old as the industry itself. In fast-growing markets, cloning incidences, or accusations thereof, are at their highest. We saw it in Japan and North America with arcade games in the eighties, and we’re seeing it now with the explosion of mobile games. This is now especially true throughout mobile-mad Asia. Despite the huge influx of games, I’d argue that instances of full-on cloning are rarer than many think. This doesn’t mean the borrowing of ideas from others isn’t rampant. It is. Rather, human nature, laws, and I’d argue the greater good all demand we steal each other’s ideas – just not their work.

Full disclosure: I’m not a lawyer, but I did play one of the Phoenix Wright games. Most of the issues raised will fall somewhere in the gray area where “common sense” ends and “time to call a lawyer” begins.

The arts have a different way of protecting original ideas – or not protecting them, as it turns out – than technology. It all becomes a mess with something like video games, a field that straddles both tech and the traditional arts. The result is a complicated web that catches few copycats. Be forewarned, that doesn’t mean that all is fair game.

Stealing like a game developer

In his excellent book, Steal Like an Artist, Austin Kleon presents an honest way of looking at art. He goes to great length to explain just how much any aspiring artist should borrow from as many sources as possible. This is different from the almost-sacred way we tend to talk about matters of artistic creation, as if some muse had spoken to us, never admitting that we just really wanted to put League of Legends on a tablet, for example. Kleon’s work applies best to art and writing, but could apply to anything, from business to coding to synchronized swimming. This isn’t to say anyone’s calling for outright hackery or passing off another’s work as one’s own. Fortunately, laws don’t permit this sort of thing, either.

The games industry, from the large publisher to the small studio, is quick to adopt technical advancements. It’s also eager to pay homage to the works of others, from fan-made mods, to the allusion of other works. For better or worse, developers rarely have any qualms about borrowing from other devs. It’s nearly as common to see them appropriate something from movies, film, or comics. Still, having a sense of where the lines are is essential, even if a complete understanding is impossible and, unless you’re a lawyer, impractical.

See: Most startups are clueless about intellectual property. This startup is trying to change that

The case of Idea v. Expression

A nineteenth century Supreme Court ruling in the United States captured the essence of copyright law. While there is some variation all over the world, what is perhaps the field’s core principle was settled. It’s called the Idea-Expression Dichotomy:

Unlike a patent, a copyright gives no exclusive right to the art disclosed; protection is given only to the expression of the idea – not the idea itself.

An American lawyer posted an interesting rundown which included several games industry cases that took place over a few decades. These typically involved Japanese companies’ North American branches battling it out in US courts. One quickly sees that you can’t copyright something as abstract as a fighting game. The same holds true for seemingly less obvious concepts like that of a multiplayer online battle arena (MOBA). Still, many creative aspects are protectable, including names, story, art, and other design elements.

What’s the story?

There is good evidence that all those “different” stories you’ve digested over the years, whether they be in book, film, or game, conform to one of seven basic templates. Hell, it’s probably all just the same single story and we are just being pedants about it. So if you were to say Game X copied Game Y which had already copied Final Fantasy VI, I encourage you not to go too far down that rabbit hole. You’ll soon see many of the same themes pre-dating even the first novel, Japan’s Genji Monogatori, and probably going as far back as the cave walls in Indonesia if you know what you’re looking at. We might find this “meta-narrative” fundamental to our very psychology if we only knew how to look.

Games as art

Losing controls

Sorting the goats from the cloned sheep