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Vapourware How similar can a competitor's game be legally?

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This is something I've been thinking about lately. This seems like a dumb question/has an obvious answer to me. A competitor can make an almost blatant rip-off. But are there legal guidelines, and if so, what are they?

An example is BGI/II and PoE. I haven't followed the development of PoE closely, but at first glance it is very similar to BGI/II. The only major difference to game-play seems to be combat (correct me if I'm wrong). Could Bioware sue Obsidian for making a game so similar to theirs?

What if a game with a more unique formula than BG, for example HoMM (I don't know of any other fantasy TBS game quite like HoMM), was copied really closely? I.e., overland map, resources, town screens, battle screens with similar creature stack mechanics, etc. but with some minor differences, e.g., different IP, different art and music, world, history/lore, a few different resources and perhaps quantity of resource types, optional/exclusive buildings, optional/exclusive troops, 8 or 9 creature stacks in battle, etc. Say someone wanted to copy HoMM2 or 3 that closely...

And what if the competitor were new to game development, this 'copy with subtle differences' being their first game, copying a large, established company's game (in this example Ubisoft and HoMM)? Would this give the established company more grounds on which to sue the upstart?

P.S. Sorry if this has been asked before, I didn't know what to search.
 

Admiral jimbob

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The long and short of it is - the law can't protect games in this way, not really. The big secret that lawyers don't want you to know!! is that we're eternally playing catchup to the way the digital market is changing and evolving. Look at Android/iOS appstores for evidence of this. The biggest games, the biggest brand names, they cannot protect themselves. Clash of Clans gets cloned, Bejeweled gets cloned, Flappy Bird gets cloned. On a broader, more material scale, there's a multi-million-dollar World of Warcraft themepark in China, because the Chinese have no concept of individual rights and care only for what benefits the state (this is the official line, not racism).

So what protection does your average game have? How does an established game company sue an upstart? They can't. There is no protection. Not at all. The law simply can't help.

The ONE exception to this is in insane American courts, where you can patent rounded corners. Bethesda sued Mojang for calling their game "Scrolls" because it would cause confusion with The Elder Scrolls. Mad, utterly mad, and an utterly American train of thought. Eventually it was settled out of court, because who can match Bethesda's lawyers?

It's all about expense and who can afford to give first. For the most part, the big secret with copying shit is; either be rich or don't be incorporated in America, stand your ground, and you'll probably get away with it. If someone comes out with a 1:1 HoMM clone with a different name on the Android market, I would bet my practicing certificate on nobody being able to bring it down. It just won't happen, not at the moment.
 

Jick Magger

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Game companies can patent certain ideas to ensure that other companies don't use them. For example, Nintendo's patented the sanity meter from Eternal Darkness: Sanity's Reqiuem, which is why you don't see any other franchises using sanity mechanics in the same way as they did.
 

Raapys

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Also looks like someone patented jumping, given how few games have it these days.
 

Admiral jimbob

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Game companies can patent certain ideas to ensure that other companies don't use them. For example, Nintendo's patented the sanity meter from Eternal Darkness: Sanity's Reqiuem, which is why you don't see any other franchises using sanity mechanics in the same way as they did.
They could if they framed it a different way. Patents are so limited as to be worthless when it comes to "soft" ideas like that - the sanity meter is a classic example of developers simply using it as an excuse to not include something interesting in their games.
 

Destroid

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Pretty much the only thing you can protect is stuff like art assets and names. Boardgames have the same thing, a remake of the classic Dune was in the works, but the Dune estate canned the deal. Fantasy Flight simply rethemed it to one of their in house settings with the exact same mechanics.
 
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Wow! I'm a bit gobsmacked that there isn't more legal protection for a game's signature/core game-play mechanics (especially for a series...), such as a 'has to be x% different' type law.

There seem to be quite a few people kicking up a stink about Heroes 7's development on the message boards on the H7 site. If someone wanted to, and had the money, they could swoop in with a 'Heroes 7 killer', copy the HoMM3 mechanics, which a lot of people seem nostalgic for, add more to it, and possibly profit... Edit: It's not like the current H7 IP (Ashan) is that popular anyway, so creating a new, better, IP and world would be a plus too.

I could think of a few other games that I'd welcome quality copies of too.

Thanks for the replies guys. You've all inspired me to start playing lotto.
 
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Tigranes

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You don't get sued for copying the Hollywood 3-act story arc, or for copying your time signature from a Dream Theatre song. Hell, the reason a lot of songs get away with actually copying stuff is because the bar is set pretty high. Why? Because it would become too easy to catch every other song. And if you started patenting the structural aspects of media content as opposed to their specific articulation as content, well. What stops me from copyrighting real-time strategy games or cover-based FPS?

Patent laws are complicated, sometimes nonsensical and country-specific, but what you are (admittedly hypothetically) suggesting basically contradicts the most common sense aspect of how they work today.
 

pippin

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When it comes to games, you'd be suing people for using code, which sounds crazy, but nobody has really thought about that yet, so we'll see how that develops.
There's also different aspects when it comes to distribution and reproduction (and negating both of them as well), which could complicate things. Think of BG:EE.
 

Admiral jimbob

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Wow! I'm a bit gobsmacked that there isn't more legal protection for a game's signature/core game-play mechanics (especially for a series...), such as a 'has to be x% different' type law.
What it comes down to is the difficulty of enforcement. A lot of the time, any infringement has to be proved in a court of law - hence Bethesda's big Hollywood legal team trying to smack down Scrolls. Until that point, it's all hypothetical.

Look at it this way: the basic presumption with any creative asset is that it's new and original. Has to be, otherwise, well, where would we be? Nothing after Lord of the Rings would be allowed to have greedy bearded dwarves or noble blonde otherworldly elves. Maybe fantasy would be a lot more diverse, sure, but it exemplifies how difficult it is to protect stuff like this. Can you patent the idea of "armies being built up in a garrison square"? Can you patent the idea of sending a hero out to secure resources and recruit unique units? If so, do you sue Age of Wonders? Do you use every other RPG because, from a layman's perspective, it covers similar ground of sending out hero x to recruit NPC y? Why haven't the Gears of War dudes (or whoever started it) sued every cover shooter since? What seems like common sense for someone intimately familiar with RPGs - we all know what HoMM does and the fine points that distinguish it from other games - won't hold up under court scrutiny, because ultimately, these differences aren't as big to others as they are to us.

I've been working with a client recently who's looking to protect an app he wants to put out to market. For the sake of anonymity, I won't get into detail, but it's a fitness app; come down to it, it's basically a series of pages telling you that if you weigh x you should do y pushups. Sure, there are gifs, there are fancy calculations, but are the ideas novel enough to protect? No, they're not. All you can do, all you can do, is try to secure the market and ensure that your product is associated with that kind of game/app/whatever before anything else. To be honest, I think it's good for competition, but there's a point where you have to tell people... yeah, your ideas aren't protected.

Not trying to make you feel daft here, by the way - I find it an interesting subject that I like talking about :p
 
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Patent laws are complicated, sometimes nonsensical and country-specific, but what you are (admittedly hypothetically) suggesting basically contradicts the most common sense aspect of how they work today.

Yeah, I'd say that's an accurate assessment of my suggestion, and the reason why I asked. I've long been mystified about competitor's getting away with rip-offs and 1:1 copying. H7 development and criticism finally triggered the question - that and my desire to know.

Not trying to make you feel daft here, by the way - I find it an interesting subject that I like talking about :p

Nah, this is great! I don't know much, or anything tbh, about this.

What about professional courtesy? If I wanted to rip-off HoMM3 would it be advisable in some way to talk to the owners of H3 (Ubisoft?) to let them know that the mechanics would be copied very closely, with additions and changes, but everything else original work? Or would that just be playing with fire from a competitive point of view, which seems like the obvious thing to me?
 
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Destroid

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What do you expect to get out of a dialogue with Ubisoft? I can't imagine anything good or useful coming of it.
 
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all this digital witchcraft is moving so fast the law cant keep up so everything is fair game until its made case law

but by then new sets of problems have eventuated and the cycle keeps on going

think of it as the digital wild west
 

Tigranes

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It depends. If you want to use things where it's really easy to prove you cloned, and there is legal precedent (e.g. using the name Heroes of Might and Magic), then you either need Ubisoft's blessing in writing, or you need to enjoy living a high risk life. This is also the case for mods; e.g. there is now legal precedent where if you use HoMM's art assets (The actual sprites, etc) in a Total War mod or something, you get a cease and desist. If you mod HoMM - i.e. keep or copy some of its code or assets - then sell it, then you're again in danger.

If you can't or don't want Ubisoft's blessing or any of these problems, you obviously create the Idols of Muscle and Mystique, and basically try and copy it in every way you like without using the particular names and other such definite content objects. But you can't really get sued for using, say, essentially the same recruitment rules.
 

deuxhero

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Depends on the country. TearRing Saga is pretty notorious for being sued (successfully!) by Nintendo for being an incredibly cloney clone of Fire Emblem.
 
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Depends on the country. TearRing Saga is pretty notorious for being sued (successfully!) by Nintendo for being an incredibly cloney clone of Fire Emblem.

Wikipedia said:
Tear Ring Saga: Yutona Eiyū Senki is a tactical role-playing game developed by Tirnanog, a development studio started by Shouzou Kaga, the creator of the Fire Emblem series. The game was released only in Japan on May 24, 2001 by Enterbrain.

ultra kek.
 
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They can be extremely similar.

Software design isn't new tech, so you can't patent it. The applicable IP are copyright, trademarks and registered design. Theoretically registered design could apply, but I've never heard of it being used - probably because the parts to which its easily applicable (the artwork) is projected by copyright and the game systems aren't distinct enough to qualify (games might have different mechanics, but they're still just 'using rng or algorithms to create a rule based combat system').

The trademarks only cover the marketing stuff - logos, the name of the studio, etc.

So that leaves copyright. Copyright only cover the form of a work, not the substance. You can make a film with the exact same characters and plot points as Jaws, so long as you don't use the same words. Change the character names, make sure you aren't using the original art work, rephrase the dialogue ('we need a bigger boat' to 'we really ought to have a larger fishing vessel') and call the film 'scary shark', and you haven't breached copyright. With games copyright also applies to the code, so you'd have to create the same systems while coding them in your own style, but the end product can be essentially the same.

The biggest corporate secrets are protected solely by employee confidentiality contacts and...just keeping the secret a secret. The formula for Coca-Cola is a typical one. If they patent it then their competitors can copy it as soon as the patent runs out. So they have literally one guy per market region who knows what it is, the employees making it are kept separate so that they only know how to make their little piece of it, and the bottling plants receive it as a pre made syrup which they put into the non-secret, standard cola-making process.
 
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gromit

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Just a green light, really.
You already have a green light to make a game using whatever mechanics you want... just don't step on any of their IP, obviously... and I'd recommend not copy-pasting their faction/unit/stats breakdown, to stay well-clear of any potential claim (and so that it's not a pointless clone.)

Don't do anything stupid, like ring their legal department and willfully provide a statement of intent to reproduce aspects of their work and capitalize upon their established properties. It's all down to who has the patience / money for court, precisely because there isn't adequate law.
 

Turjan

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So that leaves copyright. Copyright only cover the form of a work, not the substance. You can make a film with the exact same characters and plot points as Jaws, so long as you don't use the same words.
The interesting part of this is that this protection works in the general consumer world. You can copy successful games, but nobody will find your copy, because you cannot advertise the game with the name of the game you copy. Which basically means it will stay invisible to most customers. Sales numbers are generated by advertising. Contents usually doesn't matter that much.
 

:Flash:

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The only instance that I can think of where someone was sued for a game being too similar is Giana Sisters, which was taken off the shelves after a lawsuit by Nintendo for being too similar to Super Mario.
But whether their suit had a leg to stand on, we'll never know as it was simply a case of Behemoth vs. little company which would have gone bankrupt from the cost of lawyers alone.
 

Volourn

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"Could Bioware sue Obsidian for making a game so similar to theirs?"

BIO doesn't own BG so they couldn't sue Obsidian even Obsidian made a carbon copy of it...
 

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