How far can a game go in copying another before it's illegal?
By Patrick Vuleta on March 28, 2013 at 4:47 pm
Back in the nineties, Lara Croft was actually a man. Yet Larry Croft never saw the light of day, because one sex symbol named Larry was quite enough. Okay, well, actually, Tomb Raider’s creators vetoed him for being too similar to Indiana Jones. Then, they went back to the drawing board.
This hasn’t stopped other developers from copying Indy, however. In The Secret World, my character wields a whip. She found the whip by using a “time tomb”, called the “TARDIS”. She also has a fancy fedora hat. The other day, she wielded her whip, while wearing her hat, riding on a train to recover an ark. The ark, after all, belongs in a museum.
That quest was great fun, but the obvious ripoffness of at least three IPs got me thinking: how far can a game go in blatantly copying someone else? We all know how paranoid publishers can get about gamers copying games. So what gives with the double standards?
Copyright protects the expression of an idea
The reason The Secret World gets away with blatantly ripping off Indy is that copyright only protects the expression of an idea: specific dialogue, picture scenes, and so on. The actual concepts: riding a train, using a whip, or recovering an ark, are not protected.
In games, copyright protection generally extends to the tangible assets of a game: the underlying code, the art, and the sounds. By far the majority of copyright protection focuses on what happens when the code itself is copied, for this is the most secure claim to copyright in a game. It’s easy to tell if someone directly rips your code. Not so easy to argue that Call of Duty and Battlefield are visually distinct.
Most games, therefore, can get away with being similar to existing games, so long as they don’t do something stupid like hire an ex-developer who stole the code before starting work on another game for someone else. (Which has happened before…)
Trademarks protect a name
Every so often, someone gets the bright idea to make a computer game based on a Games Workshop tabletop game without permission. It’s usually Space Hulk. Don’t ask me why Warhammer Quest never gets the treatment, but I digress.
Moving a sight faster than the Imperium’s responses to actual space hulks, Games Workshop is always quick to squash these imitations, and they always succeed. The reason is that Space Hulk is trademarked. It has nothing to do with copyright.
Trademarks protect the important name of a game. Space Hulk, Tomb Raider, and Indiana Jones: these are all trademarks as words and logos. However, they are far more secure—and important—than copyright, for they actually stop people riding off the back of others’ hard work. It is trademarks, not copyright, that prevent someone from making money off a Space Hulk game. Owning the Space Hulk trademark gives Games Workshop the right to sell development rights to make new games every so often. http://games.on.net/2013/03/new-screenshots-of-space-hulk-game-look-dark-grim-and-excellent/
To come back to our Indy example, if The Secret World had called their ark-recovery-train-ride-quest “Raiders of the Lost Ark on the Last Crusade”, then they’d be in the wrong. They’d be wrong because they’d be using LucasFilm’s work in establishing the Indiana Jones movies to sell their own game.
Hence they called it Last Train to Cairo and simply put a picture of an Indiana Jones lookalike on the cover. That was okay.
DRM is just a tool
So what does all this actually mean? Yes, I’m sure you’re all intensely interested by a discussion of copyright and trademarks.
It means that we mustn’t let all the hallulabub over DRM convince us that games have more protection than is sometimes assumed. Indy’s hat, and whip, are not sacrosanct. Games can easily have numerous references to other games, books, and movies. They can ripoff entire storylines… just so long as they don’t copy them word-for-word.
The good thing about all this is that it ensures creative games will copy and build on each other. Indeed, Indy himself was straight out of previous adventure films. Raiders of the Lost Ark was just a blatant copy of the 1954 film Secret of the Incas, right down to Indy’s entire costume. If copyright had been as harsh back then as it is now sometimes portrayed, we’d have no Indiana Jones.
However, this is all dependent on people recognising that DRM does not change actual copyright law. DRM is just a tool to address piracy. Its effectiveness is debateable, but it’s a tool, not the law. Hopefully, DRM debates won’t change people’s understanding of what is fair game to copy, and stifle creativity as a result.