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Clone or copy? Copyright and gaming

Clones have been a feature of the gaming industry since the first games were produced over thirty years ago but copyright litigation, at least in the UK, is rare.  This may seem surprising, given a clone is a game which is intended to be very similar to or heavily inspired by a previous popular game or series.  However, as the barriers to entry for game producers, particularly on app platforms, continue to fall, and the opportunities for those games to become viral successes increase, more attention may be paid to this area in future.   

June 2012

There is a line between cloning and copying and it is copyright law's job to identify where it is. For copyright law to be effective, it needs to find a balance between protecting the first mover in a market and ensuring that future innovation is not overly restricted. One man’s clone may be another man’s copy but copyright law, when applied to computer games, seems to lean in favour of protecting the clone.

LookThe first reaction when seeing a cloned game might be to think that its "look and feel" have been copied. If the game play also seems familiar, one may think how could the clone get away with basing its game so heavily on the original? Copyright law provides two related answers. Firstly, the ideas and concepts behind a game and the functionality used to bring those ideas about are generally not protected by copyright law. Secondly, vague concepts such as look and feel are also not protected. These answers were reinforced by the Court of Appeal in the leading case in this area, Nova Productions v Mazooma Games [2007] EWCA Civ 219, a case about two pool games. Of course, however, if the name of the clone and/or the way it is marketed misleadingly present the clone as being associated or connected with the original (e.g. a version for a different platform), then the clone could commit passing off.

To rely on copyright law, the original game producers have to show that a substantial part of their original copyright works have been reproduced (or, in the ECJ’s language, that the defendant had copied the author’s own intellectual creation). Relevant copyright works include the images and graphics featured in a game, the software code, the audio and any text used. How far those various copyright works go to protect the original will depend on how close the graphics, text and sounds are to the original and what parts of those works the clone reproduces. If the games simply look and play in a similar way, this may not be enough to show infringement. After all, there can be no monopoly in a rally driving or golf game, as such, and many games with the same theme but from different houses can legitimately be developed and sold.

booksCan it be suggested that elements of a game could be protected in a similar way to the plot of a book can be protected? This can be difficult to run. The plot of a book will only be infringed if the later book takes the specifics of the particular original incidents in a book and the way those incidents are combined together. The general plot (e.g. "boy meets girl" etc) is highly likely to be unprotectable as a mere idea or theme. Elements of plots and their combination will not be protected unless, together, they are expressed as a detailed narrative and if those elements and their combination are not commonplace. Looking at a number of games on the market, particularly in the app space, it becomes apparent that a lot of what may be copied by a clone, is in fact, already commonplace in the market or is simply the high level idea itself rather than a detailed expression of that idea. In any event, the High Court has doubted whether the analogy with a plot even applies to computer programmes because computer programmes function more like a set of instructions rather than the narrative of a book (see Navitaire v easyJet [2004] EWHC 1725). However, if an appropriate case came before the courts, it would still be possible, in our view, to make out a good argument that where a clone had copied detailed elements of a complicated and involved game narrative, there could be infringement.

If the similarity between the clone and the original arises from the way they function and the way the user interacts with the game, it is unlikely that the clone would be infringing any copyright. A recent decision of the European Court of Justice has made it clear that copyright cannot protect the functionality of computer programmes (SAS Institute v World Programming C-406/10). To put it another way, if a clone operates in the same way and produces the same end result as the original, it will not infringe the copyright in the code if no code has been copied. For the same reason, a recipe for a new dish expressed in another chef’s recipe will not infringe the copyright in the first recipe if none of the original text has been copied. Copyright does not protect ideas (i.e. the method of the recipe) that are unrelated to the nature of the work that has been created (i.e. the text of the recipe).

birds flying over treesThere may be better prospects, however, for the original game, where the clone has reproduced the appearance of its images and graphics. Again, those images will not be infringed if the clone takes the high level idea behind those images, for example, birds flying over a treetop background. However, in circumstances where the particular depiction of the bird and the background have been copied, the original game may have a stronger argument that the clone has infringed its copyright. This possibility has recently been explored by a controversial case in England which considered two pictures of a red bus travelling over a black and white depiction of Westminster Bridge with the Houses of Parliament in the background. The judge found that there was copyright infringement because the later image had taken the combination of the key parts of the earlier image. In suitable cases, that ruling, if upheld on appeal, could be used by the original game developer to argue that because the key visual features of it feature in the clone, substantial part of the artistic work has been reproduced.

Clones enjoy a degree of latitude under copyright law, because a skilful clone will be able to take only the unprotected parts of the original game, even if the inspiration from a first mover is readily apparent. The few cases that there have been support the clone's position. However, all is not lost for the innovators. If the clone comes too close to the original and takes too much of the detailed expression of the concepts, ideas and appearance of the original and its narrative, the clone may well infringe copyright. The general principle remains, however, that if the clone emulates another without copying original code, music, text or graphics, there will be no copyright infringement.

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Adam Rendle

Adam Rendle explores how UK copyright law protects clones and suggests where they may come unstuck.

"There is a line between cloning and copying and it is copyright law's job to identify where it is."