hot topic: imitation

[quarrel]

Game developer Spry Fox created a game called Triple Town for the Kindle in the fall of 2010. Over the next year, they designed an updated version with social networking elements and in-app purchases. They also entered negotiations with another company to produce this new version for Facebook and the iPhone. Spry Fox ended up producing the Facebook version themselves, though they kept talking with this other company about doing the iPhone one. A couple months after the Facebook launch, that other company broke off negotiations and launched a game on iPhone that was mechanically identical to what Triple Town would have been, though with different art and sounds and a partially-altered title.

Ordinarily, this would be a slam-dunk breach-of-contract lawsuit. Instead, Spry Fox chose to pursue it as a copyright violation to take a stance against the wholesale cloning of designs in the video game industry. This copying happens because individual game mechanics cannot be copyrighted (although some have been patented) and because once you’ve replaced all the images and sounds, you only need to make tiny changes to the design side to convince a judge you improved on a competitor’s project rather than benefiting unduly from his labor. Spry Fox believes a game as a whole is a creative endeavor requiring time, expertise, and effort to produce well, and is thus just as deserving of IP protection against wholesale imitation as any other creative work. The company’s creative director claims that the threat of a mad rush of imitators discourages innovation, as it presents would-be game creators with two dim prospects: make a poor game and lose money, or make a good one and reap scant rewards as copycats nab a significant chunk of potential customers ahead of you. In fact, this may even influence creators to become imitators themselves. After all, the profit margin is bigger.

Zachary Knight, a former state chapter president for the Entertainment Consumers Association, asserts there is no compelling argument that expansive intellectual property laws are better than narrow ones at aiding creators. According to him, if your main concern is fair financial compensation for creative effort, something like 14 years (the original duration of copyrights in the U.S.) is more than enough time for you to be the only person allowed to earn money from your work or make anything similar to it, and that any extension beyond that timeframe is not only useless at ensuring more revenue, it actually raises the cost and risk of development. You might think a longer monopoly period or broader protection scope would encourage more people to create, but according to Knight, such protections create more standing claims for would-be creators to sift through to make sure they don’t infringe something by accident. That costs time and money. There is also greater risk of running afoul of patent trolls and the like, who are empowered by greater protection laws. Defending yourself against one of those can cost a fortune in legal fees—if you win. Lose and it’s bankruptcy and jail time.

UI design veteran Sam Kite takes an extreme point of view: if your goal as an independent developer is to make a living making games, your best course of action is to form a collective with many other developers so you defray financial risk. The group survives without needing every member to produce a hit every time, which is far more stable than an isolated artist who could lose his shirt at the first flop, regardless of whether that flop is the result of Zynga eating his lunch or him simply producing a dud. Thus the question of IP protection is moot. Stopping cloning won’t guarantee financial stability, and this tactic that does nigh-guarantee stability prevents cloning from bankrupt you, so why do you want stiffer anti-cloning laws? Dry your eyes, stop whining, and solve this problem with a constructive solution.

That last bit is a recurring theme in comments on this issue: every second you spend getting upset that people copied your work is a second you waste not making your next creation. That’s technically true, but it glosses over the fact that it sucks to be locked into either supplying copycats with free work or not working at all. Kite also seems to think his theoretical collective can get a leg up on copycats by swamping them with sheer volume. I doubt that. Imitators don’t need to organize to become a financial threat. They only need to multiply to match the amount of easily copyable games available. And they do that, as a natural function of free enterprise.

Another prevalent attitude is that any time a situation comes down to a an only-one-winner conflict between producers and consumers, consumers should always win. Game designer and studio founder Ryan Creighton comes down squarely on this side, arguing in his blog that imitators spread products to more customers than the original creators are willing or able to serve (or to customers that they do serve, but more poorly or slowly than the copycats, which means they deserve to lose those customers because that’s how the free market works).

Ryan doesn’t stop echoing public sentiment with that thought. He also proposes that being imitated gives you a chance to prove that you’re morally superior. Someone copied your design work, slapped on a new coat of paint, and made revenue comparable to yours with less skill and a lower outlay? Show that you can make another game and do even better! This strikes me as disingenuous. Imagine you walk down the street, and I punch you in the face and take your wallet. I would love to get away with saying, “Wait! Don’t call the cops, and don’t write City Hall. Think of this as a challenge. It’s a chance for you to try again, to show the world exactly how good you are at walking. No, don’t just go home and stay there. That’s a copout. Wait, what? You say that if you keep getting robbed, you won’t be able to afford lunch? Just go out with a bunch of friends next time. No, no, they aren’t there to protect your wallet—if I take it, they can buy you a burrito!” And then I punch you in the face again. That would be sweet.

To be fair, I haven’t seen anyone opposed to prosecuting exact imitations or trademark violations (which are fraud, not idea-stealing). But that doesn’t matter much given how rarely imitations are “close enough” in the eyes of the law. The hard part is determining where that hair-thin and subjective dividing line should be. Given how intractable that problem is, and how many people are fine with where that boundary is right now, I don’t see anything significant happening on the legal side of things. Grassroots efforts to sway consumers and publishers into giving copycats less respect (by which, I mean “money”) will likely prove more effective.