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What the Copycat Saw: Creative Theft in Mobile and Social Games

What can developers do technologically, legally, and creatively, to combat the wave of copycat games in the social and mobile spaces? Gamasutra speaks to Kixeye CEO Will Harbin, Booyah's Brian Cho, lawyer Greg Boyd, and more.

The distinction between theft and inspiration is often unclear in video games. Traditions are formed, broken down, and remade every few years. The most successful ideas are eagerly absorbed by others, from regenerative health in first person shooters to the subdivision of platformer levels into world and stage.

At what point does borrowing successful ideas turn into outright thievery? Like art and pornography, people know creative theft when they see it -- but coming up with a reliable definition is difficult.

In recent years, mobile and social games have been especially susceptible to creative theft. Working with small teams on games with a simple few mechanics, it's been easier than ever to swap out a jewel for a balloon or a -Ville for a -Burg and let the millions fall where they may.

In earlier years, the scope and complexity of games formed a natural obstacle for copycats. Even with a regenerating health system, a developer would have to build out huge swaths of level geometry, design enemy intelligence, calibrate the world's physics, and rejigger a few mythic archetypes into something that seemed at least vaguely new.

With these obstacles flattened by the technical limits of browser plug-ins and the need for commuter gratification, mobile and social games have become a feeding ground for people with resources and ambition but few novel ideas of their own.

And players find it difficult to tell an original from a copycat when both are represented with a mere app icon. Will the copycats eat everyone's future, or just wind up cannibalizing themselves? How does U.S. copyright law affect mobile and social games? Are there strategies to protect one's work from cheap clones?

One Sail and 100 Anchors

It's hard to calculate just how much revenue is lost to fast-follow copies. The bigger threat copycat games pose is in flooding a vibrant area of growth with creatively stagnant backwash, the precondition for a market collapse.

"We're worried that we'll pigeonhole the distribution vehicle, which in this case is Facebook, into something that's very narrowly focused," Will Harbin, CEO of Kixeye, said. "Part of why we're not attracting the hearts and minds of the core gamer on Facebook is that a lot of these games are kind of the same. There are a ton of strategy games, there are a lot of city building games, there are now a ton of mafia games again. It's just kind of more and more of the same."

Kixeye has been one of the most vocal developers in drawing attention to creative conflict. This summer, Harbin published an open letter arguing that Kabam's Edgeworld had borrowed over-liberally from Backyard Monsters.


Backyard Monsters

Kabam countered that the game was, rather, a synthesis of four of their own previous games combined with a new science-fiction overlay. Similar claims can and have been made about nearly every major social or mobile developer -- they've just ripped someone else's idea off, swapped new sprites into someone else's game.

These conflicts reflect the relative narrowness of social and mobile games so far -- when there are only a handful of genres, it's hard to not step into other developer's turf, intentionally or otherwise. "For the core user, it's really only strategy games right now," Harbin said. "There are very few adventure games, racing games, or simulation games."

"What I think would be better for the ecosystem is to have a lot of early development in a wide variety of genres, and then people deep diving on those. But instead we're seeing most people just chasing the same thing. For the most part, these fast followers are still being rewarded with revenue, so there is some demand for it, but I don't think this current approach can be sustained for long."

One of the less visible impacts of copycat games is in the subsequent draining of the talent pool. With successful clone companies making quick globs of money, they can seem like exciting places to work and suddenly programmers, animators, and designers are paid lots of money to defer their talents while new ideas wither away in their back pockets.

"I want talented employees to think twice about who they're working for," Harbin said. "Do they want to work for someone who's innovating or someone who's copying? I'd say even of the copycats and fast followers there's some real gaming DNA in there. I'm sure there are some people there screaming to make original titles."


And the Law Says "Whatever"

Copying another person's work is a legal issue as well as a philosophical one. Yet, copyright law in the United States is intentionally vague, so as to reflect the real uncertainty between theft and inspiration. "The standard for copyright infringement in U.S. doctrine is 'substantial similarity,'" Greg Boyd, an IP lawyer for Davis & Gilbert LLP, said.

"A lot of people upon hearing 'substantially similar,' will say 'what a horrible rule,' but it is intentionally vague in order to be powerful and flexible. If you really sit around and think about it, it's difficult to come up with something better."

Copyright law does not protect ideas, per se, but the way in which an idea has been fixed in a tangible medium. "If I say I have an idea for a game mechanic and you think that's great and go out and make a game out of that mechanic you might have violated some things but you haven't violated copyright law," Boyd said.

"I hadn't fixed my idea in a tangible medium, I hadn't written it down or coded it. After things are in the code form, then it's in a tangible medium."

For these reasons, litigating a copyright infringement case can be especially difficult, because you not only have to demonstrate egregious similarities between two games but show how their specific expression in compiled code is substantially similar.

With social and mobile games, changing a toad into a bat or a jewel into a piece of sports equipment can seem like a substantial difference, or at least blur the distinction enough to make it hard to make a ruling.

Another complication is that the differences in copyright law from country to country make it difficult and costly to pursue a lawsuit against overseas developers.

"We've seen a lot of copycatting, specifically in Russia there was a direct clone of [DJ City]," Brian Cho, director of business development for Booyah Games, said. "In Asia there were also a lot of copycat games, especially in Korea and Japan, but those weren't on any of the platforms that we were on."

"I think we would definitely have taken a hit if there was a copy of our game on Facebook, we would definitely have taken action there. But because it was in developing countries that we weren't planning on going to anyway, we couldn't necessarily take any steps to protect ourselves as a small, startup company."

Even with the law on your side, it can be lucrative enough for developers in countries outside the U.S. to run a game that infringes on copyright for a short period of time, making it all but impossible to stamp out completely. "Income disparities between the U.S. and overseas contribute to it," Boyd said. "If you're going to be a pirate in a lot of countries for just a matter of days or even a few weeks -- that can be hugely profitable, even if you know that eventually you'll be taken down."

Having a common platform like Facebook or Apple's App Store can be helpful, in that it at least offers a common authority for appeal. "Facebook will absolutely comply with U.S. law and in some cases they've intervened ahead of a court order or a threat of legal action," Harbin said. "They have a legal team there and they understand copyright law and know that life will be easier if they can take some action in advance."

"In one instance, there was a competitor who hadn't completely copied one of our games but they were directly referencing elements of our proprietary language in their advertising. They were targeting our users and insinuating that we were responsible for the title they were advertising. It was a little bit of a gray area but the legal team realized that if we sued them we probably would have won, and so [Facebook] suspended all those ads."

Another area of vagueness with game copyright law comes with the distinction between a game's code and the creative end result produced by it. A company might take a specific portion of someone's A.I. code and use it in a game that looks and plays nothing like the original. Or else, a developer might copy the same patterns of A.I. as closely as possible but write their own unique code to do it. Might these be areas of conflict unique to video games, for which U.S. copyright law might need to be modernized?

"It's a great question, and it's definitely a great policy-level question, but you have to consider the complexity of the issue," Boyd said. "You can't make special rules for one artistic medium. Think of the First Amendment. It protects movies just like it protects games and books. We have to have copyright law that does the same thing. If you start doing specialized carveouts, it's a dangerous path. You can do just as much harm as you can good."

In practice, then, defending one's creative work and determining what constitutes infringement and what doesn't is a slow and murky process that must bring substantial similarity to bear on both the creative product and the technical code in which it's fixed.

"We usually just look at the genre, the mechanics of the game, and then we deep dive on how closely they've copied the game," Cho said. "There are quantitative ways to see what percentage of our game they've copied, and if it's over a certain percent we'll take legal action. Having those figures really helps our case."


An Ally of Obsolescence

Many developers and publishers have realized there are alternate ways to dealing with copycat games. "I have this conversation with my clients literally everyday: what is the most worthwhile use of your time and money?" Boyd said. "You could spend your energy and resources on a lawsuit overseas or just focus on developing something even better."

"A great example is what we were seeing with black market virtual property right at the turn of the century. It was a tremendous problem right at the beginning, then everyone realized what we were seeing was actually a market force. If game designers could incorporate that force into their work from the beginning, and tap into the market themselves, it would be much less of an issue. Now the free-to-play model with virtual item sales is the norm. Even downloadable content is a version of downloadable property that we tap into, that we didn't used to tap into."

Another way of considering copycat games is as a natural sign that it's time to push forward into new territory. "Emotionally it bothers us [when we see copycats] but we feel like our best defense is to continue to be innovative," Ben Liu, COO of Pocket Gems, said.

"You have to think about where some of the imitators are coming from. When we launch a game we have several months of lead time, so when an imitator launches they're often several months behind already. Our product will already have evolved from where their product is starting from."

Booyah has also been proactive in trying to either break new ground with each new project, or to form business partnerships that will give them a natural advantage in the marketplace. "On mobile we have a lot of patents for specific mechanisms in location-based gaming and virtual items, and we definitely try to protect those," Cho said.

"One thing that helped us protect ourselves with DJ City was that we had a lot of direct deals with specific artists and music labels. We had a lot of good music and a lot of our competitors didn't and I think that's what made the game really stand out initially."

Likewise, the technical possibilities in mobile and social games are quickly expanding, which will begin to make possible the kinds of genre and budget differentiation that helps thin the ranks fast-followers on consoles. "After seeing what's going to be possible on Flash with the Unreal Engine, I'm hoping more and more quality developers will be drawn to developing on browsers now," Harbin said.

"If you want to add defensibility, you just have to do things that are harder to do. Doing something on the Unreal Engine, you're moving into a different area where you've got to differentiate yourself in a lot of areas -- content, story, graphics, how good is your art department, how good are your writers."

If this approach is followed through for a few years, the low-end copycats will simply be priced out of the competition. "As the quality of the games goes up it will be a less viable for a lot of competitors to just clone a game," Cho said. "You're going to have to be even more unique, differentiated, and triple-A quality to be successful. In the early days it was viable to just clone and reskin, but I think it will be a lot harder to do that in the coming years."

"All Those Things Are Going to Get Better"

Even in embracing new technologies and investing in more lavish productions, mobile and social games developers will inevitably come to a point reached by all media, wherein repeating what others have done becomes unavoidable. There are only so many times a creative form can experience revolutionary paradigm shifts. In the time between, there is often a negotiated peace between what works and what differentiating improvements can be added to it.


War Commander

"I make no bones about the fact that War Commander was heavily influenced by Command & Conquer: Red Alert and Red Alert 2, which were on the PC 13 years ago," Harbin said. "I wanted to play Command & Conquer in a persistent real-time environment -- more of an MMO style where there's a 24/7 world that's always alive and breathing, there are always battles going on, and you're fighting for territory."

"Those experiences were no longer available to people, but I always wanted to improve upon them. But the first big no-no in my book is to copy a game or take a big degree of influence from a game that's currently available on a platform that you're going to deliver to. That's what's hurtful to the industry."

For most developers, the task of creating new games lies in the murk between inspiration and mimicry, relying on a consideration of what's already been done, what's available currently, and what opportunities emerge from that search that most excite the individual.

"We have a combination of people who try to make games based on what they would enjoy playing," Liu said. "We want to create things that are customized and right for mobile, but also universally accessible and fun for all kinds of different people. Our ideas come from looking through all of those areas and then finding something that we'd most want to play ourselves within them."

It's unlikely that copycatting will ever go away, but it seems that a balanced approach that favors focusing on new creative opportunities while selectively choosing which cases are most worth the energy and expense of litigating will be the most fruitful. "All those things are going to get better," Boyd said.

"There's enough money in social and mobile and there's enough power in the platforms as they mature that people will make better games. People won't just be making fancy addiction mechanisms masquerading as games. Long-term cloning and copycatting disincentivized quality, which is the shared goal of most game developers and people who play games. "

And in truth, it's in everyone's long-term benefit to avoid the alternative possibility where copycatting becomes so ubiquitous that there is no money left for creative risks and industry expansion. At this point the industry will become self-consuming and risk the same terrible contraction brought about by short-term profiteering.

Becoming fixated on punishing imitators can be a resource-draining preoccupation that keeps developers from moving forward. In most cases, we're remembered more for the things we make than the rivals we defeat. So long as the only thing the copycat sees is your back as your breaking new ground, rest assured you're winning. It's hard and scary work, but so too the prospect of turning around and mustering for a fight.

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