Developer threatens legal action against allegedly “cloned” Kickstarter game
Game attorney Zachary Strebeck looks at the threat of legal action by Indie Boards & Cards against a recently-funded Kickstarter project, Moriarty’s Machinations. Is it really a clone, or do the threats have no basis in the law?
I was alerted by a reader on Board Game Geek to a situation involving a newly-funded Kickstarter project and a threat of legal action by the creator of an existing game. This threat of legal action may be an extension (though not inspired by) the recent litigation of clone games that I’ve discussed recently.
The games and accusation:
Moriarty’s Machinations is a hidden role card game by Duadikos that exceeded its $7,500 goal on Oct. 14. On Oct. 3, Travis Worthington of Indie Boards & Cards posted a comment on the project page, saying the following:
It is my view that Moriarty’s Machinations and the efforts to promote and publicize this game violates various Intellectual Property, Copyright, Trademark and Trade Dress rights that Indie Boards and Cards holds for our games.
Indie Boards and Cards will vigorously defend our intellectual property rights. I am now in process of initiating formal legal action against this project, the company behind it and the individuals involved. I think that it is only fair to provide this information to the project backers as it presents a significant risk for the project creator to successfully deliver on their commitments.
Are they too similar?
Phase 1 is sort of similar, but the roles and the revelation of them to other players is more complex.
Phase 2 of the game, however, is very close to what I’ve played in The Resistance. One big legal question is whether or not the merger doctrine applies – is there really only one way to express this idea? If so, there wouldn’t be any copyright protection. In the Bang! case, there seems to be a lot of complex interaction between the powers that the different characters have. This, in turn, is seen as creating enough player interaction that it rises to the level of copyright protection. Even though the words on the cards are changed, the rules are essentially the same for those cards, and thus could be infringing.
The cards in Resistance, on the other hand, do not have specific text. Rather, it’s the rules of the game that dictate how things are played. They may be simple enough to not rise to a protectable level. The big drawback here is that we don’t quite know where the line is drawn as far as protection of mechanics under copyright is yet.
Phase 3 is a bit different, at least from the original Resistance (I haven’t played Avalon).
Reactions in the BGG thread about the game seem to range from “it is a retheme of the same game” to “it’s just an intimidation tactic.”
It is entirely possible that Duadikos’ attorneys were correct in their assessment that there is no infringement, but it’s also a possibility that with a change in judicial interpretation of the law it will be infringing. As far as trademark and trade dress rights go, I’m not so sure there is any problem here. They are not using brand identifiers that could cause confusion and the card designs themselves (the trade dress component) don’t seem to be confusing either. However, I’m not a judge, so who knows what they would say.
So what happens now?
If legal action does indeed move forward, it will be interesting to see what the outcome is. Most likely, however, the case will settle out of court, since a litigation like this will take an enormous amount of time and cost a lot of money. With the $10,000 raised by the project, there just doesn’t seem to be much left over in the budget to fight a long legal battle. We won’t know until it happens, however.
If you are a creator who is concerned that your game may be too close to another creator’s, why not contact an attorney for a review? A little effort up front may be a better idea than investing time and money into a project that is doomed to be marred by legal action.
Also, I am in Chongqing, China for the next month or so on business. If any Gamasutra readers are here and want to meet up, send me an email or leave a comment! If you have any tips or places that I absolutely MUST go, let me know, too.