Confessions of a Clone Maker

Or, “Regarding Ripping off Japan”.

Read the latest Gamasutra Soapbox called “Japanese Video Game Copyright Protection & Preservation (Or Lack Thereof).” I have issues with it, but I’m biased. So is the author, but I’ll get to that later.

The confession. While I did not work on the games that were singled out, I did work on similar games at the same time and was around the creation of the two “classic” CBC games mentioned. Apparently, I’m a thief?

Maybe it makes me a hypocrite, because anyone that knows me knows that I am an avid supporter of original and independent games. I bemoan the EA* rehashes and the constant sequels. So when these games were being pitched and developed, I really wanted to create something new and fresh. Unfortunately, as always, time and money restricted that (these games were churned out, concept to live, in about a week) and we had to resort to tried and true formulas. Clones.

Was legal involved? Most certainly yes. I can’t really remember the details — these games were made four years ago — but the game titles and art and promos were considered for copyrights and trademarks. If I recall correctly, getting the game names approved was a hassle. Was gameplay considered by legal? NO. Because gameplay can not be copyrighted.

Is X Attack similar to Space Invaders? Yes. Can a discerning 17.5 year old boy tell one apart from the other? Most certainly yes. That’s the crux of the copyright argument, and despite the pixel stylings (that style was to coincide with some CBC program that was going on at the time) of X Attack, it is different enough to not be considered a blatant rip. There is precendent.

Which leaves me wondering why? Why, above everything else, does the author focus on some throw-away Flash games on a public-owned television network’s site? Well, let’s consider the author. The article says:

John Andersen is a North American market consultant, and specializes in providing overseas business strategies for Japanese video game publishers and developers. Andersen recently consulted for G-mode, a Tokyo based cell phone content company, and contributes news features to various video game news outlets.

First off, he’s a marketer and not a lawyer. IANAL should have been the first thing in the article. His legal opinion is about as relevant as mine. Secondly, he worked/works for G-Mode and thus has a vested interest in trying to stir up the pot regarding the legality of clones of its own games. Games like BurgerTime.

He also rails against a clone of Taito’s Space Invaders. Again, an IP he has a vested interest in promoting and protecting since Taito and G-Mode have a working partnership and are, together, releasing their own portable gaming device (!?). That’s one point.

Secondly, and this is where it starts to loop in on itself, he should know better. Why? Because the company that pays him money is the owner of Data East‘s game library. Data East is a fondly remembered defunct game maker that made some good titles, including personal favourite Shadowrun for the SNES, and a lot of crappy titles. Crap like, say, Fighter’s History. This is where it gets funny. Not “haha” funny but raised eyebrow funny.

Fighter’s History was Data East‘s answer to the worldwide Street Fighter II craze in the early 90s. When other companies responded by making Mortal Kombat and Samurai Shodown, games similar in mechanics to SF2 but clearly distinct in style, Data East decided to go that little extra mile. So much so that Capcom sought a preliminary injunction to prevent Data East from producing, marketing or selling “Fighter’s History” anywhere in the world, alleging that the game infringed Capcom’s copyright in Street Fighter II.

Data East argued in response that there is nothing unique about the Street Fighter II game, and to the extent that there are similarities between the two games, they result from the use of the same format, and draw upon the same public domain of stereotyped characters.

Data East won the case. Their clone was valid. (And that was a case of Japan ripping off Japan. So much that regional argument.)

That’s not the end of it though. Some six years prior to that case, Data East lost (after an appeal) when they sued Epyx for the exact same thing. That case was thrown out because despite the similarities of the two titles, a discerning 17.5-year-old boy could not regard the works as substantially similar. Apparently, memories are in short supply at Data East/G-Mode. Mr. Andersen needs to learn his employer’s own history before calling the kettle black.

Now, I’m not here to argue that those CBC offerings are particularly original. They’re not. But they’re perfectly legal. Lack of originality is not yet a crime, and while I do admit that there are a lot of issues around such matters they generally involve the materials connected to the game rather than the game itself. And as it’s been said, no discerning 14.7 year old is going to confuse the iconic Space Invaders with some quick little Flash game that they play for two minutes. Nor is that little game going to dilute or tarnish the Space Invaders brand. Nor will it cost them money.

Spending two thirds of an article attacking some small Flash games, while only giving a half a page mention to the more profitable, lucrative and recent clones by PopCap, hints at the author’s personal bias in the matter. My bias is obvious, though loose. I no longer have any interest in how those games do. As I said, they were built four years ago while I was at my first real job without a lot of creative say. But if I ever thought that I was doing something wrong or that I was preventing somebody from earning their livelihood, I wouldn’t have done any of it. Period.

There’s a lot more that I could write, but that’s more than enough for now. Additional reading: Joystiq comments. Video Game Law Blog. 1UP’s “History of Videogame Lawsuits” US Copyright Office – Games.

* I bemoan EA the corporation, but I do know that there are plenty of talented people with original ideas working there that, for many reasons, will never be heard. Sometimes when you have to choose between making your original dream game or eating, eating takes precedence. It takes a brave individual to risk the latter for the former.

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