Thursday, February 02, 2012
Copyright and the Romantic Video Game Designer
My friend Dave is a game designer in Seattle. He and his friends at Spry Fox made an unusually cute and clever game called Triple Town. It's in the Bejeweled tradition of "match-three" games: put three of the same kind of thing together and they vanish in a burst of points. The twist is that in Triple Town, matching three pieces of grass creates a bush; matching three bushes creates a tree ... and so on up to floating castles. It adds unusual depth to the gameplay, which requires a combination of intuitive spatial reasoning and long-term strategy. And then there are the bears, the ferocious but adorable bears. It's a good game.
Now for the law. Spry Fox is suing a competing game company, 6waves Lolapps, for shamelessly ripping off Triple Town with its own Yeti Town. And it really is a shameless ripoff: even if the screenshots and list of similarities in the complaint aren't convincing, take it from me. I've played them both, and the only difference is that while Triple Town has cute graphics and plays smoothly, Yeti Town has clunky graphics and plays like a wheelbarrow with a dented wheel.
I'd like to come back to the legal merits of the case in a subsequent post. (Or perhaps Bruce Boyden or Greg Lastowka will beat me to it.) For now, I'm going to offer a few thoughts about the policy problems video games raise for intellectual property law. Games have been, if not quite a "negative space" where formal IP protection is unavailable, then perhaps closer to zero than high-IP media like movies and music. They live somewhere ambiguous on the spectrum between "aesthetic" and "functional": we play them for fun, but they're governed by deterministic rules. Copyright claims are sometimes asserted based on the way a game looks and sounds, but only rarely on the way it plays. That leads to two effects, both of which I think are generally good for gamers and gamemakers.
On the one hand, it's well established that literal copying of a game's program is copyright infringement. This protects the market for making and selling games against blatant piracy. Without that, we likely wouldn't have "AAA" titles (like the Grand Theft Auto series), which have Hollywood-scale budgets and sales that put Hollywood to shame. Video games have become a major medium of expression, and it would be hard to say we should subsidize sculpture and music with copyright, but not video games. Spry Fox would have much bigger problems with no copyright at all.
On the other hand, the weak or nonexistent protection for gameplay mechanics means that innovations in gameplay filter through the industry remarkably quickly. Even as the big developers of AAA titles are (mostly) focusing on delivering more of the same with a high level of polish, there's a remarkable, freewheeling indie gaming scene of stunning creativity. (For some random glimpses into it, see, e.g. Rock, Paper, Shotgun, Auntie Pixelante, and the Independent Games Festival.) If someone has a clever new idea for a way to do something cute with jumping, for example, it's a good bet that other designers will quickly find a way to do something, yes, transformative, with the new jumping mechanic. Spry Fox benefited immeasurably from a decade's worth of previous experiments in match-three games.
The hard part is the ground in between, and here be knockoffs. Without a good way to measure nonliteral similarities between games, the industry has developed a dysfunctional culture of copycattery. Zynga (the creator of Farmville and Mafia Wars) isn't just known for its exploitative treatment of players or its exploitative treatment of employees, but also for its imitation-based business model. Game developers who sell through Apple's iOS App Store are regularly subjected to the attack of the clones. In Spry Fox's case, at least, it's easy to tell the classic copyright story. 6waves is reaping where it has not sown, and if Triple Town flops on the iPhone because Yeti Town eats its lunch, at some point Dave and his colleagues won't be able to afford to spend their time writing games any more.
This is something I've been thinking about the copyright tradeoff recently. One way of describing copyright's utilitarian function is that it provides "incentives to produce creative works." That summons up an image of crassly commercial authors who scribble for a paycheck. In contrast, we sometimes expect that self-motivated authors, who write for the pure fun of it, will thrive best if copyright takes its boot off their necks. But a better picture, I think, is that there are plenty of authors who are motivated both by their desire to be creative and also by their desire not to be homeless. The extrinsic motivations of a copyright-supported business model provide an "incentive," to be sure, but that incentive takes the form of allowing them to indulge their intrinsic motivations to be creative. In broad outline, at least, that's how we got Triple Town.
I'm not sure where the right place to draw the lines for copyright in video games is. I'm not sure that redrawing the lines wouldn't make things worse for the Daves of the world: giving them more greater rights against the 6waves might leave them open to lawsuits from the Zyngas. But I think Triple Town's story captures, in miniature, some of the complexities of modern copyright policy.
"I've played them both, and the only difference is that while Triple Town has cute graphics and plays smoothly, Yeti Town has clunky graphics and plays like a wheelbarrow with a dented wheel."
This would seem to at least somewhat undercut the idea that we need more copyright protection in this area. As long as actual code is protected (and if there are increased protections against the issue that Bruce raised above, where they were given access to the code and abused that access) then increases in quality and the significant effort required to backwards engineer something are a significant protection. Those who copy will tend to have "clukier graphics and play like a wheelbarrow with a dented wheel." And consumers will take notice of that difference.
Posted by: Andrew MacKie-Mason | Feb 6, 2012 3:49:03 PM
I'm still pressed for time, but just want to note this fact: "[Edery] also claims that 6waves was in confidential negotiations with Spry Fox to publish Triple Town on Facebook, and that 6waves was given private access to Triple Town while it was being developed. 6waves then broke off negotiations on the day that Yeti Town was published, he claims." If true this is a pretty bad fact for the defendant; defendants in similar situations tend to lose (Sid & Marty Krofft and Mannion v. Coors come to mind.) There's also a nondisclosure agreement attached to the complaint.
Posted by: Bruce Boyden | Feb 5, 2012 1:24:18 PM
Exactly right, Joe -- and what makes this such a difficult case is that there's also a strong argument that the lack of copyright in game mechanics is precisely what has given us the thriving indie gaming scene, where the level innovation in mechanics is unmatched since the early days of the Nintendo.
Posted by: James Grimmelmann | Feb 5, 2012 12:18:12 PM
James, really interesting post. The lack of protection for program/game behavior is a really tricky and interesting question (e.g., Samuelson et al. from the Colum. L. Rev. symposium). Not sure what the right balance is either, but the potential problem would appear to be more acute for games like these, where a high proportion of the value comes from the clever gameplay mechanics, as opposed to how it is implemented (e.g. via fancy graphics, sound, etc.).
Posted by: Joe Liu | Feb 4, 2012 3:47:14 PM
Good point, sugar huddle: I should add that the Triple Town complaint has a Lanham Act claim, too.
Posted by: James Grimmelmann | Feb 4, 2012 12:02:03 AM
Great post, James. And I'm with you -- and with your hunch. My inclination is usually concern about the over-extension of copyright, but some of what happens in the games industry seems like -- I hate to say it -- a misappropriation of creative labor. I'm skeptical of similar arguments in the fashion industry and elsewhere, so I am not sure why my intuition runs counter here. I am guessing the Bruce's work provides an explanation -- because games as systems receive no protection, this is one of those areas where the gap between copyright and patent is a genuine gap. And perhaps a gap that is unique to interactive media -- the games of the past did not have market dynamics quite the same as those we see today.
Posted by: greglas | Feb 3, 2012 7:31:30 AM
I wonder whether the Lanham Act could be used to pick up some of the slack in this area. While the "look and feel" of a copycat game isn't always confusing, complaints about video game copying typically cite comments by reviewers about the similarity of the two and evidence of some confusion by players as to source or affiliation, especially when the games are available in different media (an iphone app that knocks off a facebook app, for example).
Posted by: sugar huddle | Feb 3, 2012 12:24:52 AM
Wow, this could not be more timely for me -- thanks James, and I will attempt to blog on it ASAP.
Posted by: Bruce Boyden | Feb 2, 2012 5:11:45 PM