Fishing, the iOS Clone market, and Patent/Copyright

Last week I went to a Weezer concert, they covered a song I'd never heard before: "Pumped Up Kicks".  Here's the performance:

http://www.youtube.com/watch?v=sk-jhJ8cwr4

It was awesome.  This morning I couldn't get the song out of my head.  I went and looked up the original:

http://www.youtube.com/watch?v=SDTZ7iX4vTQ&ob=av3e

Also awesome (and apparently pretty popular, I'm just out of the loop).  Weezer didn't specifically say the name of the original band but they did say it was a cover of a song that they heard on the radio that morning and decided to learn.

Enter the Ninja

A few weeks ago, a company called Gamenauts released an iPhone game called Ninja Fishing.  While it has a bland art style, the core game is unique, interesting, and fun.  Apple then featured the game, and it quickly rose to the top 10 list, and they are likely raking in profits at this very moment.

NOT SO FAST.  "Unique"?  "Original"?  No, the game was a clone of a not so well known free flash game called Radical Fishing, released by Vlambeer at the end of 2010.  After Radical Fishing, Vlambeer went on to make Super Crate Box.  And after that, they began working in secret on an iOS remake of Radical Fishing called Ridiculous Fishing.  The new RF has a unique and beautiful art style, and likely would have climbed the charts even faster than Ninja Fishing.  It may still.

IGF chair Brandon Boyer led the charge on educating the masses about the origin of Ninja Fishing's game design inspiration.  A number of developers quickly picked up their pitchforks, and under pressure, Gamenauts offered to credit Radical Fishing as the inspiration behind their work.

But this didn't silence their detractors.  The argument against Gamenauts (and other cloners) is that it chills the incentive for innovation.

But does it?

Katy Perry covers The Pixies

Imagine that Katy Perry (or some equally broad audience but bland performer) had decided to cover a not-well-known and poorly produced but interesting song from a small band and put it on her album, not knowing that the small band had formed an offshoot band with more production values, which had intended to release a cleaned up version of the song at a later date.

She is actually allowed to do this.  She could either sample the original track without copyright or credit* or she could go through one of 3 processes for legally covering the original song:

http://en.wikipedia.org/wiki/Cover_version#U.S._copyright_law

She doesn't even need to have permission to cover the song if she gets a mechanical license (cheap, easy to get, but has a standard royalty rate attached to it), although the original band is allowed to choose who will release the first version of a song if it hasn't been released yet.  In the case of Ridiculous Fishing, the original version has already been released.

The Desktop Dungeons iOS Clone, and Copyright vs Patents

Desktop Dungeons is another free-to-play (and AWESOME) PC game that got cloned in the iOS market before the original creators were able to port the game.  There's one major difference here, though: the cloner had access to a private beta, and began cloning the game before the original Desktop Dungeons was ever released to the public.  If game design were covered by Copyright law, rather than patent law, then the team responsible for Desktop Dungeons could have prevented the release of the clone simply by not releasing Desktop Dungeons publicly until they were prepared to hit all markets.

The Game Industry was built on the back of slightly edited cover songs

I think the reason that it's so maddening for the Vlambeer folks (understandably so) is because they took a fairly major game design leap with Radical Fishing, while the rest of the industry tends to take much smaller ones.  I'm guessing this wouldn't be so maddening if someone had cloned their other title, Super Crate Box, as the game design leap to get there wasn't as great.  That said, I don't think public shaming of a cover band is a good thing, nor do I think public shaming of Gamenauts is either.  Games are about entertainment, and the public won't be on the side of the original creators if we act over-protective of our works like the RIAA.

Additionally, Ninja Fishing actually did include some innovations: the art style is different, and more mass market than the original Radical Fishing (which looks... ahem... shitty), and they included a slicing mechanic (which is lifted from Fruit Ninja and a number of other iOS games).  These are small, but they are technically "innovations".
Game Design Patents are bullshit

Currently, game design is covered by Patent law, meaning that game design is viewed more as a mechanical process rather than an artistic one.  This means that you can potentially patent individual mechanics, which certainly chills the market for creative inspiration.  

Here's a recent bullshit Nintendo patent
Here's a bullshit Microsoft patent

It seems pretty clear that game design has a lot more in common with music composition and not mechanical innovation.  Our laws should treat it this way.  What does this mean?  Sampling (copying individual mechanics) should be OK*.  Outright cloning (covering a whole song) should also be OK, but some protections and financial incentive should go towards the original creators.
 
*(The legality of sampling in the music world is actually still being hashed out, but most likely the law will eventually come down against the samplers.  I believe this is the wrong approach, and that sampling should be legal in music AND game mechanics.)

How should the law treat game design cloning differently from music cloning? 

The major differences are these:

In the absence of copyright protection, what should game designers do?

I feel bad for the team making Ridiculous Fishing, especially if they find that their market has been sapped by the time their game gets to market.  I do think that they should have some legal protections for their creative inspiration.  But we also have to provide a legal and non-shameful avenue for the cloners (cover bands) to exist and to take the creative baby steps that have formed the basis of much of the innovation in our nascent art-form.


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EDIT
A point I think is important that came from the comments:
"Here's the reason I think it's fair to call the changes in Ninja Fishing "innovation": Gears of War. Every piece of game design in Gears of War is a direct clone of something else. INCLUDING the element that is renowned for being "innovative": the active reload concept. That concept is tried and true, it comes from golf sims. Every other element of Gears of War is a direct clone of any number of other games. But the "remixing" of that mechanic into a shooter is meaningful.

The same thing applies here. We just hate on Gamenauts because they aren't as good at their craft as Epic. "

EDIT #2
If you are curious about what the compulsory royalties are for selling a cover of someone's song:

"The current (2006) statutory rate for royalties is 9.1¢ for every copy sold if the playing time for the song is under five minutes.

If the playing time for the song is longer than five minutes, the rate is 1.75¢ per minute, rounding up to the next minute.

" - From cdbaby.com

EDIT #3: After all this and I didn't actually mention the name of the band that Weezer covered.  They are Foster The People.  I'm glad Weezer covered them (performance covers don't even need license, which they likely didn't get) because now I've discovered an awesome new band - which wouldn't have happened had Weezer not stated that it was a cover before they sang it.

EDIT #4:
If it bothers you that Ninja Fishing may profit more than Ridiculous fishing, despite Ridiculous Fishing having incredible artwork and Ninja Fishing being bland looking, ask yourself if you'd feel the same way if Vlambeer's remake had the bland art and the clone by Gamenauts had incredibly beautiful art.

NINJA EDIT #5: Katy Perry actually IS allowed to do the hypothetical Pixies cover I mentioned above, as long as she follows the rules for covers.