The PG.biz Mobile Gaming Mavens on the fine line between drawing inspiration and cloning
Legislate and be damned
The PocketGamer.biz Mobile Mavens are our panel of experts drawn from all sectors of the mobile gaming industry.
This week, with talk of clones all over the games press, we asked them:
With an increasing number of cases emerging on mobile - Vlambeer/Gamenauts, NimbleBit/Zynga, Spry Fox/Lolapps to name a few - where do you draw the line between cloning and inspiration?
Though the Mavens had difficulty defining just where that line should be drawn, most of them agreed on one thing: SpryFox's claim that 6waves Lolapp's Yeti Town is a clone of Triple Town is the simplest case of those on offer, if only because it threw up an alleged breach of confidentiality between the two parties.
As Tiswaz Entertainment’s Kevin Dent pointed out, Spryfox sent Triple Town "to the guys at Lolapps and they got allegedly ripped off - I have seen nothing to suggest otherwise."
Beyond, there was broad agreement that companies of all sizes have both cloned and been the victim of cloning, but there was disagreement about whether that is itself problematic and what, if anything, should be done about it.
Bring on the clones, there should be clones
Notably, the Maven's anti-legislation group didn't try to claim clones don't exist.
Rather, they argued for normality and practicality; that these things happen and that development world would be much worse if the law were changed.
They claimed plagiarism happens in all creative media and always has - indeed, it's notable that the second books of both Don Quixote and Tristram Shandy refer to false sequels of the original works - and that legislating would only shift power even further in favour of large companies.
Machineworks' Andreas Vahsen claimed that all game genres have been established by cloning.
"I remember conversations with large publishers a long time ago - 'We already have an FPS, so we are done with that genre’, they'd say," he opened.
"Interestingly enough, all of these publishers bit the dust, albeit they were in the top five worldwide in their time. It's that attitude that's surfacing again - being risk averse to point of condoning 100 percent copying - that ultimately does great harm."
Despite his opposition to perfect clones, he thought that a copy which improved on any of "originality, drama, graphics and engagement" was fine - "Let the best game experience win."
Dent and others contended that this wasn't what was meant by clone.
"We are now floating into high end studio quality one to one cloning," he stated. That is, major developers such as Zynga devoting resources not to producing better versions of popular games, but reproducing those exact games - which he felt was from an obsession with metrics.
Paraphrasing Oscar Wilde he said, "if we start developing titles based on metrics we have finished learning and then we will have learned that we are finished."
New Maven Charlie Chapman of First Touch Games thought Dent was right, but that this is the way increased investor pressure is changing development.
"With the industry becoming more and more driven by analytics and metrics, particularly from free to play games, is it any surprise that this is happening? Building an original game is expensive and risky. So why not avoid all that, and take someone else's game, proven to work, as a starting point?" he offered.
"From televisions to films, and most other industries, companies have always tried to imitate or copy an established success. Volkswagen have even made light of this recently with their 'Just like a Golf' advert."
Volker Hirsch of RIM agreed; "Last week's cases were presented in a very witty way, they exposed some particularly blatant copying on Zynga's side but they weren't necessarily rare or new to the industry."
He thought that this focus on metric-driven design obscured the amount of creative-whilst-derivative products that the industry still produced; "we recently were blessed with little marvels like Temple Run, Tiny Wings, Whale Trail etc - none of which revolutionizse a genre but all of which were done by indies, all of which show a delightful creative touch (or 'interpretation') of well-known mechanics - AND all of which rose to the top."
He found common ground with Tower Studio's Jon Hare, who thought that the drive to cloning came from the consoles.
"Legions of games designers on high profile (console) products are little more than level designers, using tried and tested game mechanics, controls and methods of display and merely modifying characters, backgrounds and missions."
Hare was aware of the much-reduced cost and talent associated with cloning, so understood why companies did it - and felt it was a global issue for all industries.
"There are many countries in the World who seem proud to act as cloning factories in the main, and often it is these countries who have been the most successful in general trade over the last few decades. Most of the seven billion people alive right now do not have particularly experimental or discerning artistic taste and in the main they love the products delivered by clone factories."
You'll never walk a clone
On the other hand, many of the Mavens rejected duplication outright - such as ustwo's millsTM, who always refuses to compromise his creative vision.
"Making games, entertainment, a new design, a product should always be about unearthing something that makes you proud no matter what happens on the financial side... Fakes and copycats quite simply have to absolutely f**k off to another paradigm."
He pointed to Temple Jump – recently pulled by Apple after cloning Temple Run's App Store icon - and to Chillingo's apparent cloning of a Halfbrick game (One Epic Game copying Monster Dash) and asked "why does this get through approval?"
XMG's Adam Telfer provided anecdotal evidence of cloning; "our Drag Racing game has been pirated and renamed over and over by horrible knockoffs... It used to be a laughing matter, but we've noticed a significant dip in active users lately that we attribute to the clones getting closer and closer to our concept. We will flex some legal muscle and do our best, but the only way to beat them is to update and build a better product."
That point about the futility of legislation was echoed by Dave Castelnuovo of Bolt Creative, whose award-winning Pocket God game was copied by a Eyedip game called Pocket Devil, he claimed - "a re-skinning all the way down to the shape of the characters, the menus and button layout on various screens."
Bolt tried to remove Pocket Devil from the App Store, futilely - except in the most egregious cases, Apple isn't proactive in chasing offenders and only acts as a mediator between developers. "Any time that an app has been pulled over a copyright issue (unless it's completely obvious) it's the offending party that backed down and pulled their own app."
If a developer has copied art and/or a game’s title, there's a chance Apple will help - but the developer can just change the offending characteristic and, beyond that, there’s no redress.
"With a company as big as Zynga, they can keep you tied up in legal wrangling until you are broke or say uncle... When the supreme court was trying to define obscenity, the best they could come up with was 'I know it when I see it'. In that vein, I think what Zynga (and quite frankly Gameloft) is doing is obscene," concluded Castelnuovo.
Handygames' Christopher Kassulke, on the other hand, saw this cloning as a commercial choice which only gave short-term benefits.
"Every game developer and publisher need to know if they want to be a copy house or a creative studio – draw the line by yourselves. Both can be successful in the short run. But without creativity and innovation it’s hard to stay alive for long and generate new happy and paying consumer."
He thought there the press had a moral obligation to focus on the creative titles - like his own Clouds & Sheep game...
The legal eagle
New Maven Jas Purewal of law firm Osborne Clarke gave his legal position on cloning.
Copyright law hasn’t kept up with the games industry, he claimed, with legislation focusing on the underlying code rather than the feel of the game - very rarely done when copying a game. "As a result, there’s little or no caselaw or rules about what happens when you copy the look and feel, gameplay or mechanics of a game – which is exactly what’s going with the game 'clones' right now."
He felt the law should be altered, to strengthen creator’s protection.
"Copyright isn’t an absolute property right giving you ownership of, say, a game character or game genre. You still have to be able to show that the other guy actually copied your game – if you can’t do that because they arrived at it independently or they changed it enough to make it a different thing altogether, you have no case.
"That's why no-one can own the FPS genre, or a game about an Italian plumber in a world of pipes and walking mushrooms etc."
Moreover, he thought that the very threat of legal action would be enough to dissuade most companies based in legally-accessible jurisdications from developing cloned games; "it would if nothing else introduce legal hazard that would make businesses think twice before they clone someone else's game – which would indirectly help developers (especially indies) without them even having to have a lawyer... the trick is to clarify the law in a way that doesn’t limit the industry’s freedom to innovate…"
Jas didn't clarify how we'd keep the law fresh, given the speed of change in the fluid games market - it might appear that, in the medium-term, sieving steam would be easier.
Castelnuovo agreed with Jas but wanted games copyright to be changed so it was like music copyright - so that courts judged on more than the just the code, but on the feel of a piece.
Progressive Media's Thomas Nielsen couldn’t have disagreed more; "Software patents are, in my mind, among the worst, most evil, horrible things mankind has ever invented. (Definitely in the top three!) They can stand in the way of innovation, and can be great tools for patent trolls to keep competitors at a distance."
He felt that, despite Purewal's reassurances, major corporations would use any new legislation to stymie creativity; "With an option to fight the competition in the courts, who are we helping? The little guys getting ripped off? Not likely - I see a free pass for the big fish to start shooting out cease and desists whether or not they have a viable case, as that's a really efficient way of killing potential competition."
A final word
So the Mavens were divided - some felt cloning disincentivised creatives, others felt that the business case for cloning was flimsy, and still others that legislation would be a worse evil than the current open market.
The only person whose views weren't clear was PG.biz's own Keith Andrew, who spiritually represented the hapless consumer;
"There's a decent Fruit Ninja clone on PlayBook - Fruit and Ninja. Is it bad I paid for it out of curiosity? I also purchased Cut the Birds on iOS which did much the same thing, just to see. Hell, I might be the reason all these clones exist..."
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