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.