Category: Copying/Cloning

Kotaku sued over Dante’s Inferno picture

Here’s an interesting piece courtesy of THR: an artist is suing Gawker, owner of games new site Kotaku, for alleged copyright infringement relating to a painting the artist had done of Dante’s Inferno and which Kotaku posted as part of a feature on the EA game called…Dante’s Inferno.

The allegedly offending post by Kotaku is here.  THR haven’t published or referenced any details of the lawsuit, which is brought by the artist Lindsey McCulloch, so treat the above with a grain of salt until there are concrete details of the lawsuit. 

However, as a general observation, linking to or posting to other peoples’ copyright works on the net is often a bit dicey legally.  There’s no question that reproducing someone else’s paintings constitutes ‘copying’ under the copyright laws of most jurisdictions, but where different countries take very widely different positions is to what extent that copying is legally permitted and when it turns into (illegal) copyright infringement.

For example, in the USA there is a fairly wide legal principle of “fair use”, which (partly for freedom of expression reasons) protects a wide ranging of copying which otherwise would constitute copyright infringement.  However, in the UK there is no such general concept of fair use and instead you have to try to rely upon much more limited categories of protection, such as the ‘research’ or ‘news reporting’ defences to copyright infringement.  In most countries of course, what is really important is why you are copying someone else’s copyright works: is it for your own commercial benefit?  Have you given due credit to the original author?

Or to boil all that down even further: there is no one size fits all rule about when you can copy someone else’s work on the net (or anywhere else), and when you can’t.

Postscript: some people on the internets have already speculated why the artist isn’t taking action against EA for somehow copying her work when they published the Dante’s Inferno game itself.  All I will say about that is that, very generally, it can be straightforward to ‘copy’ someone else’s work in your game if you do it properly – there’s a lot more on that here.

Second postscript: for once, I have not linked a picture for this post. I wonder why?

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Opinion: why PopCap had to say yes to Blizzard

Last month, news emerged that Blizzard will introduce an homage to Popcap’s hit game Plants vs Zombies in the forthcoming World of Warcraft expansion, Cataclysm.   Apparently there will be a Plants v Zombies themed quest chain in the game, including the ability to…well, fight zombies with plants.  It seems that Popcap had collaborated closely with Blizzard on the project.

All well and good.  But this got me thinking: what if hypothetically it had been reported that PopCap had known nothing of Blizzard’s plans and was unhappy with them?  What could Popcap have done then, legally?

My view is this: if Blizzard did it right, then PopCap couldn’t have done much legally – and I’ll explain why in this post. 

But first, a couple of caveats.  One: this is not a complete legal analysis – it is an opinion piece, in which I take you through my views of the key legal issues that would be encountered (though if you do want a careful legal analysis about these kinds of issues, let me know!)  Two: this is not intended to cast any aspersions on Blizzard or PopCap – I’m just using a convenient recent example to discuss the limitations of copyright and trademark law as regards games.  There is a tendency sometimes to think that, just because someone has copyright and trademark protection in their games, that somehow that makes them invulnerable to copying etc.  Not at all – as I’ll show you.

The basics

These are real basics: a game is really just a bundle of different components : images, audio, video, code, databases etc.  Virtually all those components are intellectual property (i.e. intangible stuff you can own, as opposed to tangible stuff you can own – such as a house) and therefore protected by intellectual property law.  The games components outlined above will usually be protected by a branch of IP law called the law of copyright (more on that below).  Told you it was the real basics…

Separately, your name, the name of the game and the names of some its key features (e.g. its characters) can potentially be protected by trademark law.  For example, Nintendo and Super Mario are trademarked terms (again, more on that below).

In addition, there can be a whole bunch of other intellectual property rights in or around your game – e.g. rights in databases forming part of the game or in its packaging or ‘get up’.  For the purpose of this post, they’re not as relevant so I won’t discuss them.

The copyright bit

As I said much of the game components, like audio and graphics, will be protected by copyright law.  But really that just protects the actual images you’ve drawn or audio you’ve actually recorded.  Copyright law does not give you a monopoly over every other kind of similar image or audio. 

Example: if Alan draws a picture of a fat grey zombie attacking a plant, then he can’t stop Bob entirely separately drawing and selling another image of a fat grey zombie attacking a plant.  This is a critical principle of copyright law: it protects the expression of an idea, not the idea itself.  Two people drawing that picture entirely separately have just drawn on a common idea, so neither of them has the right to stop the other from drawing or exploiting their picture.    Copyright law does this in order to strike a balance between rewarding hard work and protecting intellectual liberty.

Ah, you say, but what about if Alan saw Bob’s picture first?  That’s where it gets tricky.  If Alan can prove that Bob had access to his picture, and can prove that Bob made a replica picture that copies all or (to use some legalese) a “substantial part” of Alan’s picture, then in principle Alan could sue Bob for copyright infringement on the basis that Bob’s inspiration was Alan’s picture, not the abstract idea of a fat grey zombie attacking a plant.

BUT, suing for copyright infringement is not as easy as just looking at the two pictures.  Judges have to look very closely at every aspect of the two copyright works, comparing and contrasting every part of them in order to reach to a decision as to whether there are enough detailed points of similarity to justify a finding of copyright infringement.  This is a very, very hard test to meet.  On top of that, it is often hard to prove that the person who made the alleged replica work actually had access to, and copied, your copyright work.  All lawsuits ultimately involve a degree of chance, but copyright lawsuits often  go beyond that.

What about if there are no obvious technical examples of copying but there is overall a very similar ‘look and feel’ to the two works?  For example, what if there are two GUIs or menus that are not exactly the same but overall give the same or similar effect – could there be copyright infringement there?  Answer: it is going to be very, very hard under UK (and US for that matter) law to prove that someone has copied your game or any other copyright work just based on a similar ‘look and feel’. 

A good example of how hard all this is to prove is the Da Vinci Code case (aka Baigent and Leigh v Random House).  Two authors claimed that Dan Brown had plagiarised their book, The Holy Blood and the Holy Grail, when writing his massive hit The Da Vinci Code.  Brown quite clearly had taken a huge amount of inspiration and plot details from their book, but he was not found liable for copyright infringement because he hadn’t actually copied any text from Baigent’s and Leigh’s book.  There were not enough painstaking points of similarity between the two books, and any general similarities or ‘look and feel’ were not sufficient, to find Brown liable for copyright.

Another example:  Navitaire Inc v easyJet.  Navitaire had developed an airline booking system, which easyJet instructed software engineers to replicate down to the last detail, partly by reverse-engineering it through repeated use of the system.  Navitaire tried to sue for copyright infringement and failed because, even though easyJet it couldn’t show that the relevant copyright works had technically been copied in the word-for-word sense and its ‘look and feel’ argument failed.

That key point again: it’s actually quite hard to prove copyright infringement regarding software, including games.  Ever wonder why (naming no names) some social games look, sound and and have names remarkably similar to each other?  It’s partly because the above shows how hard a lawsuit over any alleged copying would be.


So that’s all very nice and academic, but what does it mean for PopCap and Blizzard?  Here’s my view:
  • Popcap will (unless it has assigned it to someone else) own the copyright in all the visual, audio, video, code etc in Plants vs Zombies
  • But that does not give Popcap a monopoly over the idea of a cartoony tower defence game in which the player builds plants to fight off zombies
  • Nor does it give Popcap a monopoly over the ‘look and feel’ of that kind of game
  • Done correctly, Blizzard could quite properly look at Plant v Zombies and – without actually copying any of the copyright works in that game – make its own version which looked very similar and played very similar
  • In other words, if Blizzard had decided to include a game-mode very like Plants v Zombies in its game, and did it correctly, I think Popcap would have great difficulty in arguing copyright infringement against Blizzard
Of course, there’s a BUT here.  None of this means that you have a licence to rip someone else’s game off without regard to copyright law, firstly because that’s just a bad thing to do but secondly because there’s nothing to stop the copyright owner commencing litigation against you anyway (even if the prospects of success are actually against it).

The trademark bit

So, copyright wouldn’t help (I think).  How about trademark?  Answer: I don’t think so, not if Blizzard was savvy.

Again, another bit of legal 101 first.  Trademarks are intended to give legal protection to the financial value of the name of your company and product, because otherwise it is very tempting to put together a similar product with a similar name and piggyback on someone else’s successful product.  This often comes up in cybersquatting cases, when a shady character sets up a website very similar in name to a popular website and tries to profit from misdirects (for example, Facebook recently successfully went after and shut down Facebok.com).  So, both ‘Popcap’ and ‘Plants v Zombies’ are (or should be) trademarked. 

The basic test for trademark infringement is fairly simple: if you use deliberately in your trade a name which is similar to a name trademarked by someone else and this is likely to cause consumer confusion between your name and the trademarked name, in principle you can be liable for trademark infringement to the trademark owner.

The solution is simple: use a name which won’t cause consumer confusion.  So, if Blizzard was to use a name sufficiently similar to Plants v Zombies to cause consumer confusion (e.g. ‘Zombies v Plants’) then in principle it would be liable for trademark infringement.  But what if Blizzard used a name like “Botanical Mayhem” or something? 

My answer: far less chance of  succesful legal complaint from PopCap, probably.  So Blizzard could take their own type of plant/zombie tower defence game, give it a non-trademark infringing name, and off they go.

Practical points coming out of this little thought experiment:
  • Having copyright and trademark protection for your game is helpful, but it doesn’t necessarily make it invulnerable to being copied/ripped off
  • Copyright protection isn’t going to be a complete shield if someone is determined to exploit your game cleverly
  • Trademarks won’t help you either if they deliberately call the game something else which is sufficiently different so that it wouldn’t cause consumer confusion
  • BUT, litigation isn’t just about winning a lawsuit when you’re absolutely right, it’s also about applying commercial pressure to the other side – so you shouldn’t necessarily be swayed by just these legal arguments
  • And don’t take of this as a licence to go ripping someone else off – obviously, it’s never a good idea to do that

Image credit: PopCap Games/Wikimedia

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Setback for Jagex in Runescape lawsuit

Jagex, developer of the popular browser MMO, has suffered setbacks in its ongoing lawsuit against Impulse Software, the maker of a bot for Runescape called the “iBot”.  This follows attempts in 2009 by Runescape to take legal action against a gang of UK phishers.

First, a quick summary

Impulse’s bot (like most bots) allows players to level up their avatars faster by playing for them.  Jagex, understandably, was not happy with this.  It therefore brought a lawsuit against Impulse Software in the US, bringing claims under the Computer Fraud and Abuse Act, as well as claims for copyright infringement, DMCA violations, and trademark infringement. 

As part of that lawsuit, Jagex sought a preliminary injunction against Impulse banning it from sale or use of the iBot.  This then came to a court hearing, with Impulse contesting the injunction.  The court has now published its judgment denying Jagex that preliminary injunction, during which it commented on Jagex’s claims generally.  A quick summary follows:

Copyright claim: Jagex argued that Impulse’s iBot infringed the copyright works in its game.  The court felt that Jagex’s copyright claims were “unlikely to succeed” since it had not made all the necessary copyright registrations (in the US, for a copyright to be protectable it needs to have been registered with the US Copyright Office – unlike in the UK where there is no registration requirement and generally copyright works becomes protectable as soon as they have been creatted).  In particular, Jagex had not registered copyright in its website or software.  As a result, Jagex could not argue that Impulse had ‘copied’ its copyright works.

DMCA claim: The US Digital Millenium Copyright Act bans attempts to circumvent ‘technological measures’ put in place by owners to protect their copyright works (an example would be DRM technology).  The UK analogy is the Copyright Designs and Patents Act 1998 (you can read more on how it works in the UK here).  Jagex argued that Impulse use of its iBot breached the DMCA provisions.  Again, the court was unpersuaded by Jagex’s argument, because Jagex could not rely upon any registered copyright works that needed protection, or that there were any ‘technological measures’ in place to protect them.

Trademark claim: Jagex argued that Impulse had infringed its trademark in the name “Runescape”.  The court found against Jagex again, on the basis that Impulse had removed any references to Runescape and instead used “RS” throughout.  Jagex argued that the term “RS” was itself infringing on its trademark by causing consumer confusion between Runescape and the Impulse bot, as everyone knew that “RS” was being used to mean Runescape.  The court found against Jagex, on the basis that there could not be consumer confusion between a game and a bot intended to cheat that game.

Computer Fraud and Abuse Act claim: This law protects (as you might expect) against the misuse of someone’s computers for fraudulent and other purposes (a good example would be hacking).  The UK equivalent is the Computer Misuse Act (more on that here).  Jagex’s argument seems to have been that, while Impulse itself did not attack the “protected computers” in question (Runescape’s servers), they assisted players to attack those servers by providing the bot to them.  I won’t get into the detail, but the court found against Jagex on this argument as well.

Ruling on the preliminary injunction: having gone through the substantive legal claims, the court considered the preliminary injunction which Jagex sought, to obtain which Jagex had to prove (i) it would suffer irreparable harm if the injunction was not given; (ii) the balance of equities (i.e. probability) fell in its favour and not Impulse’s, and (iii) the public interest was in favour of granting Jagex the injunction.  Unfortunately, the court found against Jagex on all three counts.  As a result, the court denied Jagex’s application for a preliminary injunction.

What next?

Jagex is still free to pursue its lawsuit against Impulse, albeit without having been able to restrain the use of the iBot in the meantime (which Impulse presumably will continue to sell).  But clearly Jagex will have to look very carefully at what the court said about the merits of its claims – which were not positive.

Lessons to be learned:

  • THIS CASE DOES NOT MEAN THAT BOT MANUFACTURERS HAVE A FREE HAND.  We’ve seen on a number of occasions that games companies have successfully used litigation to shut down bot manufacturers and other illegal attempts to tamper with their game, usually using very similar arguments to those advanced by Jagex here.  Take for example Blizzard v Scapegaming last month, or the WoWGlider lawsuit before that.
  • Think globally with your IP.  Jagex fell down at least in part because the court ruled that it not had protected its copyright properly in the US and its terms and conditions were insufficient.  So don’t just protect yourself in your home country – you need to protect yourself in every country in which you do substantial business (UPDATE: Thomas Bidaux suggests every country where you have >10% of your business). 
  • Take legal action as soon as you are able – don’t delay.  This was another reason that Jagex failed to obtain the injunction.
  • Just registering copyright and trademarks won’t automatically protect your game – bot manufacturers these days are very careful to try to minimise liability on these fronts (hence for example Impulse’s use of “RS” rather than Runescape).  Talk to your lawyers if you have concerns about attempts to undermine your game.  A little legal advice early can save a lot of time and money down the line.

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Nintendo sues another modchip reseller

GamePolitics reports that Nintendo is suing NXPGame Inc, New York based reseller of Nintendo DS modchips, as well as its owner apparently.  It is seeking $150,000 for infringement of each copyright work and $2 million for infringement of each Nintendo trademark.
We’ve previously discussed the legality of modchips on this blog.  In the UK, the sale of modchips is quite clearly illegal as there is a specific legal prohibition on the use of devices like modchips which are intended to circumvent “technical measures” designed to prevent copyright infringement.  In the USA, the DCMA imposes broadly similar restrictions on the sale of modchips.  Doesn’t sound too hopeful for NXPGame, eh?
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Games developer fails in court claim over copying himself

You’d think the last thing a games developer should be worried about is copying his own work, right?  Wrong.  Last week, the High Court published its judgment of a claim brought by a games developer against his employer over a games concept which the developer had created when he was freelance but which later he copied and effectively pitched to his employer as a new company project.  The developer later sued for breach of copyright and confidence, in which we now know he was unsuccessful.  Read on for more details…

The story in a nutshell
The case went like this: a freelance developer created a games concept, later joined a games development company and copied his earlier work in order to prepare a highly similar games concept for the company, without telling anyone about the copying (so everyone else thought this was a brand new idea).  The development company took on the ‘new’ concept but ultimately it went nowhere and another company took over.  Subsequently, the developer sued for copyright infringement for the copying of his original concept.  The court held: no copyright infringement because no one had known the developer had already come up with the games concept when he was freelance so they had not ‘copied’ anything. The court also rejected a breach of confidence claim.

The case is one of the few recent times that a UK developer has been involved in a court battle.  In fact, several of the UK games establishment were name-checked: the case involved evidence from Adrian Smith (former boss of Core Design, developer of Tomb Raider, and who was also a defendant in the case) and Sir Ian Livingstone OBE (founder of Eidos plc, which gave the development company some advice regading the development of the games concept) and also involved UK developers CiRCLE Studios and Crush Digital Media (both of which subsequently went into administration – see here and here).

Need to know points

You can read a summary of the case below, but here are some upfront thoughts on the need to know/best practice points for developers which came out of this case:

  • When a freelance games developer joins a new employer, discussing his/her existing games concepts at the outset and how they will be treated going forward should help to avoid any confusion as to who owns the IP later on.
  • If a freelance developer creates a game concept before he joins a development company, DOESN’T tell the company about this and subsequently pitches the concept to them as a company idea then, if the game concept is taken forward, there is a risk that the developer may lose any IP rights he may have in the concept.
  • The judge said game concepts discussed by a game developer with his employer are unlikely to be confidential as between the two of them, so a developer could not generally prevent his employer from for example pitching the concept to publishers (unless there is some express agreement to the contrary).
  • Review carefully the provisions of your employment agreements which deal with ownership of IP rights, because they could be important if there is subsequently a dispute between the developer and the development company over who owns the IP rights in a game concept.
  • Pick your legal battles carefully.  Litigation is costly, lengthy and risky, as this case demonstrates.   A little advice early on from experienced litigation lawyers about your prospects of success and the legal cost/benefit analysis can save a lot of time, money and stress down the line.
So what happened?

In around 1998 a then-freelance developer, Stuart Burrows, developed the concept for a game which came to be known as “Tracktrix”, described in Court papers as follows: “Traktrix’s gameplay is very simple: get the ball from one side of an environment to another and enter the “Finish Area” within a time limit. The player achieves this by laying a track in front of the ball as it progresses“.  Burrows himself desribed it as “ ‘Marble Madness meets Tetris/Wetrix and a Scalectric track’ and ‘Super Monkey ball meets Tetris’ “.

Traktrix and Train Trax

Burrows later joined CiRCLE Studios as a senior games developer, but did not did not disclose to CiRCLE that he had already come up with the Tracktrix concept.  He copied parts of his original work on Tracktrix in order to pitch a CiRCLE projet which was similar to Tracktrix, again without explaining that he had come up with Tracktrix before joining CiRCLE.  CiRCLE then took the concept to publishers and, following the advice of Sir Ian Livingstone of Eidos, further developed it into a game concept known as “Train Trax”.

But ultimately no one was willing to pick up Train Trax.  CiRCLE later went into administration in 2007.  However, CiRCLE boss Adrian Smith and industry veteran Martin Carr formed another games development company, Crush Digital Media, which bought up some of the now-bust CiRCLE’s IP – including Train Trax.  Crush then hired Burrows to work on Train Trax further and tried again to get publishers interested in, again without success unfortunately.

It seems that Burrows later began to argue that CiRCLE and Crush had infringed his copyright in Traktrix, and had breached confidence, by seeking to develop and market Train Trax.   Lawyers were involved and the case went all the way to trial in 2009, despite Crush going the way of CiRCLE and entering administration in early 2009.

The High Court judgment

In a judgment published last week, Mr Justice Norris ruled that CiRCLE and its boss Adrian Smith had not copied Burrows’ copyright works in developing Train Trax because they had not known there was anything to copy.  As far as they knew, Burrows had invented the Traktrix concept (which became Train Trax) for the first time when he was a CiRCLE employee.  The judge found that Burrows had created Traktrix before he had joined CiRCLE, had then copied his own work to create a similar concept for the company and this then became Train Trax.  So it was Burrows himself, not anyone else, who had done the copying.  That was the end of the copyright claim.

As for the breach of confidence claim, the judge decided that a developer pitching a game idea to his employer ordinarily was not confidential as between the two of them.  He said: “Mr Burrows was employed as a senior games designer by Circle. It was his job to come up with ideas. If he came up with an idea and shared it with his employer he was doing what he was paid to do: the disclosure would not be in circumstances importing any duty of confidence owed by the employer to the employee.”

Thoughts

The judge was pretty clear the case should never have got to trial (he referred to “the regrettable fact that the action reached trial at all“).  That said, the legal issues in the case were fairly clear cut and he did not have difficulty in ruling in Smith and Crush’s favour.

Still, to my mind there were no real winners here.   Yes, the case established that effectively Crush still had the rights to Train Trax but no one wanted to buy it anyway, the game was never actually developed and Crush went into administration in early 2009 anyway.  As for Burrows, he was left emptyhanded and probably in fact received a substantial legal costs order against him (though it is always possible he may try to appeal).  Not a great result.

(Case name: Burrows v Smith & Another [2010] EWHC 22 (Ch))

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[Image credit: Mike Reeve http://en.wikipedia.org/wiki/File:Royal-courts-of-justice.jpg]