Innovation & Design

No, Imitation is Not Flattery


Cloning is causing real harm to the casual gaming sector. How can a developer protect its IP from being ripped off?

Recently, chatter within the Casual Games SIG of the International Game Developers Association heated up when developers proposed that copyrighting their work was the only way to prevent what has happened to such games as "Tetris" and "Bejeweled."

The latter, generally considered the first "match three" game, challenges players to swap adjacent gems to make three or more of the same color line up horizontally or vertically. Since Popcap came out with the game in 2001, fans of "Bejeweled" have had no trouble finding dozens of other places to match gems, such as "Jewel Quest", "Paris Hilton's Diamond Quest" and "The Treasures Of Montezuma," for instance.

"This was an industry that had a great deal of potential. But when developers flood the market with copies of successful games, they exploit the time and effort put in by the original developers and lower the value of the earlier products. That lessens the reward for the developer who came up with the idea in the first place," explains Tom Hubina. "What's the incentive then to come out with anything original?" Hubina is the vp of studios for Agoura Hills, Calif.-base Mofactor Inc., a developer of casual games for cell phones.

The motivation behind "cloning"—which can mean anything from an out-and-out rip-off to a legitimate derivative or improvement on the original—is that there's money to be made on a product that can be built on a shoestring, perhaps $6,000 and in less than three months, according to Hubina.

"All you have to do is take a successful game that involves, say, matching gems and re-skin it, changing it into a game that involves matching flowers or stars," he explains. "The motivation certainly isn't a consumer who's saying, 'Oh yeah, what I really want is the exact same game skinned eight or nine different ways.' "

The developers behind this growing problem, says Hubina, are frequently newbies who see an easy way to earn the seed money required to build more creative games down the road.

"Hey, I did it myself many years ago," he admits. "You feel a little bit dirty, but you know that if you can make some money—maybe $30,000 to $40,000 on a clone, which is actually a pretty decent return on your small investment of maybe $5,000 to 6,000—you can then go out and build the game you really care about."

One method of clamping down on cloning, developers say, is for the portals which publish and sell the games online—such as Real Arcade, MSN Games and Yahoo! Games—to tighten up on their selection process. But, says Hubina, most seem relatively uninterested in doing that, possibly because they make money regardless what they sell.

"They don't care if they sell 200 copies of 'Bejeweled' or 200 copies of 'Beflowered,' " he explains. "To them, it's just a transaction. Besides, the portals are now making the majority of their money on ad revenue. Developers should be scared to death of advertising because, when the portals sell ads, they really don't want customers buying games. Because as soon as someone buys a game, they go away to play it and don't look at the ads anymore. The portals would prefer a gamer to stay, keep downloading trial versions and then download more, all the time watching the ads."

Another recent development, says Hubina, is that while portals used to release five or six games a month, some now release one a day. That means they need a huge supply of new titles—including clones—to stock their virtual shelves. Hubina suspects that the portals with the smallest churn, meaning the ones that release the fewest titles, may care more about the quality of the games they sell.

The Web site GameSalesCharts.com, which collects information on game releases, reports that, of the most popular portals, Real Arcade and Yahoo! release just 2 to 3 per week, while MSN Games and Pogo release 5 to 6.

But, in his posting to the Casual Games SIG's "Casual Games Digest," Kim Pallister, business development manager at Microsoft Casual Games, notes that MSN Games has taken a stand on clones.

"Granted, it's a bit of a 'soft shoe' stance, but it's something," says Pallister. MSN Games' games acceptance criteria states that "Games that mimic other titles may receive additional scrutiny." "We understand that most games draw upon many elements of their predecessors," he continues. "That being said, MSN Games has received games that were transparently obvious copies of popular casual game titles. Since these clones typically have very little new of value to add, we may opt to not accept such a title for distribution. We do this both as a service to our end customers (limiting excessive selection), and to our developer partners (rewarding those who innovate). We should emphasize that we only do this in the most egregious examples. Adding something as simple as a new twist on a proven mechanic, a different theme/treatment, or a different game mode may be enough to deem it different and thus not an outright clone."

Pallister adds that while MSN Games has turned away "only a few" games, "we have done it. It's a tricky business, this. A game might copy another's gameplay mechanic, but if it has a 'flower' treatment in place of a 'pirate' treatment, for some customers that is a different game."

If it's true then that developers can't rely on portals to put a crimp in the seemingly endless supply of clones, a dozen or so debated in the "Casual Games Digest" whether copyrighting their games might be a much more effective approach.

Tom Buscaglia doesn't disagree. Buscaglia, who calls himself "The Game Attorney," is a principal at Vashon Island, Wash.-based T.H. Buscaglia and Associates.

"In the world of intellectual capital, copying may be the greatest form of flattery, but sometimes it's just infringement," he says. "And if someone does a straight knockoff of a game—which is not unheard of in the casual games market—in my opinion it is a copyright infringement."

But casual game companies are generally so small they don't have the resources to pursue a suit, he notes.

"Nor do they think it's appropriate, which is the astounding part to me. I believe developers are all about the creation of their work, they aren't business people. Which is why they've traditionally been taken advantage of by publishers and, in this case, other developers."

And so, he says, developers rarely, if ever, go to court claiming copyright infringement, which subsequently makes it increasingly difficult for any of them to prove copyright infringement.

"Because no one is enforcing their rights, no one is establishing a line of cases that defines what is an infringement and what isn't," Buscaglia explains. "I don't want to sound like a lawyer but, truly, it's not an easy test. It's sort of like what Justice Stevens said about pornography: 'I can't define it but I know it when I see it.' There are some games that are clearly copies of others. But it's for the court to actually make that determination."

Some developers within the Casual Games SIG say that a case can be made that cloning is just part of the process of making better games. For example, said one SIG member, if id Software had copyrighted the first-person shooter game mechanic of its "Wolfenstein 3-D," there would never have been a "Quake" or a "Doom" or a "Half-Life."

"I believe that copyrights and patents generally stifle innovation," adds the SIG member. "The only way gameplay improves is for people to see what others have done and then to improve on it. If your gameplay is good, your game will become known for it. Why pursue lawsuits? To me, the bottom line is that we all remember 'Quake.' And we remember the copycats as 'Quake clones.' If that's not strengthening the 'Quake' brand's dominance over the genre, I don't know what is."

Whether the original game or the clone provides the better gameplay, Joel Brodie believes it is not for the courts to decide but for gamers to vote with their purchases. Brodie is the president and founder of the Gamezebo Web site, which covers the casual game sector.

"In some cases, clones do improve on the original," he says, recalling that iWin's "Jewel Quest" added a twist to "Bejeweled" that completely changed the gameplay experience. " 'Jewel Quest' didn't hurt 'Bejeweled,' it enhanced it, and helped build on the 3-in-a-row puzzle genre. Today, both games are among the most popular casual games ever." However, he adds, since those games were released, hundreds of other titles have come out that are exact copies.

"Some even use the same gems," he says. "I don't know if they hurt the industry, but they surely don't help it. It's not a good sign that tons of developers are focusing on how to create games exactly like each other instead of using their creative energies to create a game that is actually creative."

Brodie believes that if fewer developers spent less time debating the issue of clones and focused their energies on creating innovative games, the better for everyone. In the end, he says, the marketplace will take care of itself.

"I think the best strategy is to focus on creating an original game and then working hard to build a franchise around it," he advises. "That was the strategy of both PlayFirst for 'Diner Dash' and Big Fish Games for 'Mystery Case Files.' True, both have been cloned, but because both companies have invested in getting sequels out with improved features faster than competitors can get their clones out, their sales haven't suffered."

Mofactor's Hubina has similar "don't worry about cloning" advice for developers: "Spend your time and your money on your branding and get it out there in front of as many people as you can," he says. "The goal is to get exposure, since you're probably not going to make a lot of money on the casual game product. But if you establish a strong enough IP, if it's memorable, even if you are copied, you'll still be known as the guy who made the first one. Then you can take it to other platforms—like mobile or retail or consoles like Xbox Live Arcade—where you can make money. View the casual games industry as a necessary marketing expense. "

Unfortunately, he says, the casual games industry used to be a place where a small, independent developer could make a great game that sells and generates enough cash to help grow the company. But, as the sector has grown and it's become more difficult to survive, that is no longer true.

"The portals are making all the money now, especially on advertising," says Hubina. "And they'll continue to make good money as long as the CPM rates stay high. I'm curious as to what's going to happen if and when the advertising starts drying up. This is such a fickle business."


Steve Ballmer, Power Forward
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