Video game clone

Cloning of video games came as early within the first generation of consoles in the 1970s and 1980s with the introduction of the home console version of Pong, released by Atari. Released first as an arcade game in 1972, Pong was highly successful, leading to the development of the dedicated home version by 1975. Atari's version of Pong was initially considered a clone of the version of ping-pong that had been built into the Magnavox Odyssey, and Magnavox took legal action against Atari for their home Pong game. Atari opted to settle out of court by 1976 to avoid legal costs, despite believing they would have won the case.[6] However, at the same time, with Pong in the marketplace, a number of third-party hardware developers manufacturer numerous Pong clones on the market, to a point where it was estimated that Atari's Pong console represented only about a third of sales of home Pong consoles.[7] Magnavox continued to pursue action against these Pong clones.[6] As the home console market expanded to other built-in games, clones of these system were also frequent. These dedicated consoles were relatively risk free and easy to manufacture, thus leading to a flooded dedicated-game console market. Cloning would continue as home video game consoles became popular, and in part, the number of clones being produced and saturating the market were considered part of the reason for the video game market crash in 1983.[8]

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  The original Atari Pong home console, labeled with Sears' "Tele-games" brand
• 
  The Russian "Турнир" ("Tournament") Pong clone
• 
  The Magnavox Odyssey
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  The Overkal, made by Inter Electrónica S.A. in 1974, a clone of the Magnavox Odyssey for the Spanish market

Eventually, home consoles switched from built-in games to cartridge-based systems within the second generation, making it more difficult to clone at the hardware level. However, off-brand manufacturers attempted to make bootleg copies of these consoles that has a similar form as the known console, but typically could only play built in games frequently on a liquid-crystal display (LCD). Other bootleg consoles would take the workings of older systems and repackage them in a newer housing that appears like the known consoles capable of playing the games from the original system.[9] The latter was particularly true of consoles that attempted to clone the Nintendo Entertainment System (known as the Famicom system in Japan), which was not available in some countries in the Eastern European and Chinese regions, leading manufacturers within those nations to make numerous bootleg versions, knowing that it would be near-impossible for Nintendo to seek legal action against them.[10][11]

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  The Nintendo DS
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  Neo Double Games, mimicking the design of the DS, but games are not digital, and are played on a segmented LCD screen
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  The Nintendo Super Famicom console
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  The Pegasus, sold only in Eastern European states, was a Famicom clone though styled after the Super Famicom system

While hardware itself became difficult to clone, the software of games were subsequently used in unlicensed copies for other systems. Cloning of arcade games was popular during the arcade's "golden age" in the early 1980s. Arcade games, prior to mass production, were made in limited numbers for field testing in public spaces; once news got out that a new arcade game from industry leaders like Atari was out in the open, third-party competitors would be able to scope the game and rush to make a clone of the game, either as a new arcade game or for home consoles; an occurrence which happened with Missile Command in 1980. This ultimately diluted the market for new arcade games.[12] BYTE reported in December 1981 that at least eight clones of Atari, Inc.'s arcade game Asteroids existed for personal computers.[13] The magazine stated in December 1982 that that year "few games broke new ground in either design or format ... If the public really likes an idea, it is milked for all it's worth, and numerous clones of a different color soon crowd the shelves. That is, until the public stops buying or something better comes along. Companies who believe that microcomputer games are the hula hoop of the 1980s only want to play Quick Profit".[8] The degree of cloning was so great that in 1981, Atari warned in full-page advertisements "Piracy: This Game is Over", stating that the company "will protect its rights by vigorously enforcing [its] copyrights and by taking appropriate action against unauthorized entities who reproduce or adapt substantial copies of ATARI games", like a home-computer clone.[14]

Third parties continued to attempt or clone concepts or ideas from popular and successful games. Games like Tetris and Breakout[15] inspired many games that used similar core concepts but expanded beyond that; the Breakout-inspired Arkanoid itself inspired many other clones that built upon its unique additions to Breakout. Gameplay elements of Street Fighter II and Mortal Kombat became common gameplay elements in the fighting game genre,[16][17][18] A large number of games that tried to capitalize on the success of the 3D adventure game Myst were grouped as "Myst clones".[19] Some video game genres are founded by archetypal games of which all subsequent similar games are considered derivatives; notably, early first-person shooters were often called "Doom clones",[20] while the success of the open-world formula in Grand Theft Auto led to the genre of GTA clones.[2] The genre of endless runners is based on the success and simplicity of the game Canabalt.[21] Such cloning can also cause a relatively-sudden emergence of a new genre as developers attempt to capitalize on the interest. The battle royale genre grew rapidly after the success of PlayerUnknown's Battlegrounds and Fortnite Battle Royale across 2017 and 2018,[22] while Dota Auto Chess released in January 2019 spawned several commercial games in the auto battler genre by mid-2019.[23][24]

Freeciv is an open-source clone of the Civilization series.

Another type of clone arose from developers in the open source and indie game venues, where the developers seek to recreate the gameplay of a popular title through reverse engineering, adding their own creative assets, and releasing the game typically for free and in homage to the original title. This allows the teams and users to expand upon original elements of the commercial game, such as software bugs that were not fixed, improving gameplay concepts, support for newer computers or console systems, or adding new ideas to the base gameplay principles, as well as enabling gameplay extensions through user-generated mods or add-ons. Some examples of these clones include Freeciv based on the Civilization series,[25] Osu! based on Osu! Tatakae! Ouendan,[26] and Frets on Fire based on Guitar Hero.[27] The open source nature of these clones also enable new utilities, such as developing artificial intelligence agents that have learned and improved their play in Freeciv which in turn can help advance artificial intelligence research.[28] Such games must be careful not to use the original game's assets or could face legal issues. OpenSC2K, an open-source recreation of SimCity 2000, was shut down by Electronic Arts after it was found that OpenSC2K used assets from SimCity 2000.[29]

New concerns related to cloned video games came with the rise of social network and mobile games, typically which were offered as freemium titles to entice new players to play.[30] The low cost, ease and simplicity of the tools needed to develop these made cloning in that sector a significant problem.[31][32][33] For example, Flappy Bird had been cloned dozens of times due to programming code clearinghouses offering templated code to which others could easily add their own art assets.[33] The creators of Threes! spent 14 months developing the game and tuning its mechanics, but the first clone was released 21 days after Threes! and the original was quickly overshadowed by 2048, a clone that was developed over a weekend.[34][35] In the early period of social media games around 2012, Zynga had gained a negative reputation of making copycat clones in that space.[36] However, according to their lead gameplay designer, Brian Reynolds, that they see potential new genres and game ideas that gain popularity, and then strive to add their own innovation and concepts to at, so that "[their] goal is to have the highest-quality thing".[37]

Another major area of concern for software clones arises within China. From 2000 to 2015, the Chinese government had numerous restrictions on imports of hardware and software, and access to non-Chinese storefronts. While this allowed gaming on personal computers to flourish within China, the cost of acquiring both hardware and software was too expensive for many, leading to Chinese developers to create low-cost clones of popular Western and Japanese titles for the Chinese market, which persist today.[38] Foreign companies are faced with difficulties in seeking legal action against the Chinese developers that have created these clones, making cloning a far less risky process.[38] Thus, it is common for popular games from both Western and Japanese markets to see near-exact clones appear within China, often within weeks of the original game's release. A notable example is a clone of Blizzard Entertainment's Hearthstone called Sleeping Dragon: Heroes of the Three Kingdoms created by Chinese developer Unico, released within a few months of Hearthstone's beta release. Blizzard was ultimately successful in suing Unico for US$1.9 million in damages in 2014.[39] In other cases, clones are made to address elements of the original game that are unsuitable under China's content restriction laws; for example, Tencent, which operated the publishing of PlayerUnknown's Battlegrounds in China, was forced to pull the game due to content related to violence and terrorism, and instead replaced it with a clone, Game for Peace, which otherwise reused assets from Battlegrounds but removed blood and gore.[40]

The Tetris Company won its case against Xio Interactive, on the basis that Xio's game Mino (right) copied too much of the look-and-feel of Tetris (left).

In present-day law driven by decisions in the United States legal system, video game copyrights come from two forms. The first is by its source code or equivalent, as determined by the 1983 decision in Apple Computer, Inc. v. Franklin Computer Corp. that software code can be considered a "literary work" and thus subject to copyright protection. The second form is as an audiovisual work, as determined in the 1982 case Stern Electronics, Inc. v. Kaufman; while video games present images and sound that are not in a fixed form, the repetitive use of these in a systematic response to player's actions was sufficient for copyright protections as audiovisual works.[41]

In the United States, the underlying source code, and the game's artistic elements, including art, music, and dialog, can be protected by copyright law.[42]However, gameplay elements of a video game are generally ineligible for copyright;[42] Gameplay concepts fall into the idea–expression distinction that had been codified in the Copyright Act of 1976, in that copyright cannot be used to protect ideas, but only the expression of those ideas.[41] The United States Copyright Office specifically notes: "Copyright does not protect the idea for a game, its name or title, or the method or methods for playing it. Nor does copyright protect any idea, system, method, device, or trademark material involved in developing, merchandising, or playing a game. Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles."[43] Courts also consider scènes à faire (French for "scenes that must be done") for a particular genre as uncopyrightable; games involving vampires, for example, would be expected to have elements of the vampire drinking blood and driving a stake through the vampire's heart to kill him.[44] It is generally recognized in the video game industry that borrowing mechanics from other games is common practice and often a boon for creating new games,[1] and their widespread use would make them ineligible for legal copyright or patent protection.[42][45]

Up until 2012, U.S. courts were reluctant to find for copyright infringement of clones. Driving case law in the United States was principally through the case Atari, Inc. v. Amusement World, Inc. (547 F. Supp. 222, 1982). Atari had sued Amusement World claiming that its video game Meteos violated their copyright on Asteroids. The court did find twenty-two similarities between the two games, but ruled against Atari's claims, citing these elements as scènes à faire for games about shooting at asteroids.[44] The case established that "look and feel" of a game could not easily be protected.[46] Attorney Stephen C. McArthur, writing for Gamasutra, said that during this period, courts opted to take a more lax view to balance innovation in the industry and prevent overzealous copyright protection that could have one company claim copyright on an entire genre of games.[44] At best, copyright holders could challenge clones by threatening cease and desist letters, or on other intellectual property rights such as trademarks.[47]

In the United Kingdom, "neither a game’s ‘look and feel’ nor its mechanics are protectable", according to Nicolas Murfett, a legal associate for Harbottle & Lewis, while the European Union has yet to come to a resolution on the matter.[48]

A shift in legal options for developers to challenge clones arose from the 2012 federal New Jersey district court decision in Tetris Holding, LLC v. Xio Interactive, Inc. that ruled in favor of The Tetris Company, the licensees of the Tetris copyright, over the clone Mino, developed by Xio Interactive, which used the same gameplay as Tetris but with different art assets. The developers for Mino has cited in their defense that they only used the uncopyrightable gameplay elements of Tetris in Mino. The court ruled that copyright law was in favor of the Tetris Company's claim, as the gameplay was copied without changes, and while the art assets were new, the "look and feel" of Mino could be easily confused for that of Tetris.[47][44][49] While only a district court decision and not binding outside of New Jersey, this served as case law for other developers to fend off "look-and-feel" clones.[50]

The same reasoning was found in a similar case that was occurring nearly simultaneously with the Tetris decision, in which SpryFox LLC, the developers of the mobile game Triple Town, successfully defended their game from a clone, Yeti Town, developed by 6Waves, through court settlement after the judge gave initially rulings in favor of SpryFox.[44] These rulings suggested that there was copyright protection on the gameplay mechanics despite drastic differences in the games' art assets, though other factors, such as prior agreements between SpryFox and 6Waves, may have also been involved.[44]

Both the Tetris and Triple Town cases have established new but limited case law on "look and feel" that can be used to challenge video game clones in court.[41][46][51][52]

Sega patented the core gameplay mechanics of games like Crazy Taxi to prevent cloning.

Patents are frequently used to protect hardware consoles from cloning. Though patents do not cover elements like the form and shape of a console, they can be used to protect the internal hardware and electronic components.[53] Notably, many of the patents for the Famicom and NES expired in 2003 and 2005, respectively, leading to additional grey market hardware clones within a short time. However, Nintendo had built other intellectual property protection into their system, specifically the 10NES lock-out system, covered by copyright law, that would allow only authorized games to be played on their hardware.[54]

Less frequently, patents have been used to protect video game software elements.[48][55][56][57] Notably, Sega had filed a 1998 United States patent for the gameplay concepts in Crazy Taxi.[58] The company subsequently sued Fox Interactive for patent infringement over their title The Simpsons: Road Rage, citing that the latter game was developed to "deliberately copy and imitate" the Crazy Taxi game.[59] The case was ultimately settled out of court.[60]

Another approach some companies have used to prevent clones is via trademarks as to prevent clones and knockoffs. Notably, King have gotten a United States trademark on the word "Candy" in the area of video games to protect clones and player confusion for their game Candy Crush Saga. They have also sought to block the use of the word "Saga" in the trademark filing of The Banner Saga for similar reasons, despite the games having no common elements.[61] Within the European Union, one can register for a European Union trade mark that includes multimedia elements, which would allow a developer or publisher to trademark a specific gameplay element that is novel from past games, providing a different route for them to protect their work from cloning. For example, Rebellion Developments filed to register its "Kill Cam" mechanic as a trademark from its series Sniper Elite in October 2017, though as of February 2018, the application is still being reviewed.[62]

Other notable legal actions involving video game clones include:

• Atari sought an injunction in 1982 to block the sale of K.C. Munchkin for the Phillips-Magnavox Odyssey², citing excessive similarities to its Atari 2600 version of Pac-Man. Though the court initially denied the injunction, Atari won on appeal; the court noted that though K.C. Munchkin offered different features such as moving walls and fewer dots in the maze to eat, "substantial parts were lifted; no plagiarist can excuse the wrong by showing how much of his work he did not pirate".[63]
• Data East sued Epyx over copyright violations from Data East's Karate Champ used in Epyx's World Karate Championship. Similar to Asteroids vs. Meteors, the court ruled in favor of Epyx, stating that while many elements were similar, they were necessary as part of karate championship-based game, and the remaining copyrightable elements were substantially different.[44]
• Capcom filed a 1994 lawsuit against Data East over their fighting game, Fighter's History, which Capcom claimed cloned characters, art assets, and move sets from Street Fighter II. The court ruled against Capcom, stating that while some elements may have been similar, no direct measure of willful copying could be found; the court further found that many of the characters in Street Fighter II were already based on public domain stereotypical fighters, and were ineligible for copyright protection.[44][64][65][66]

A comparison of in-game screenshots, published in EA's legal filings, of EA's The Sims Social (left) and Zynga's The Ville, demonstrating the similarities in the games' art assets.

• In August 2012, Electronic Arts (EA), via its Maxis division, put forth a lawsuit against Zynga, claiming that its Facebook game, The Ville was a ripoff of EA's own Facebook game, The Sims Social. The lawsuit challenges that The Ville not only copies the gameplay mechanics of The Sims Social, but also uses art and visual interface aspects that appear to be inspired by The Sims Social. Zynga has long been criticized by the video game industry as cloning popular social and casual games from other developers,[67][68][69] a practice common throughout the social game genre.[70][71] In past cases, Zynga's clones have typically been from smaller developers without the monetary resources to pursue legal action (as in the case of Tiny Tower by NimbleBit, which Zynga has cloned in their game, Dream Heights) or that are willing to settle out of court (as in the case of Zynga's Mafia Wars, which was accused of cloning David Maestri's Mob Wars).[68] Pundits have noted that EA, unlike these previous developers, are financially backed to see the case to completion; EA themselves have stated in the lawsuit that "Maxis isn’t the first studio to claim that Zynga copied its creative product. But we are the studio that has the financial and corporate resources to stand up and do something about it."[72] The two companies settled out of court on undisclosed terms in February 2013.[73]

More recently, with the popularity of social and mobile game stores like Apple's App Store for iOS system and Google Play for Android-based systems, a large number of likely-infringing clones have begun appearing.[74] While such storefronts typically include a review process before games and apps can be offered on them, these processes do not consider copyright infringement of other titles. Instead, they rely on the developer of the work that has been cloned to initiate a complaint regarding the clone, which may take time for review. The cloned apps often are purposely designed to resemble other popular apps by name or feel, luring away purchasers from the legitimate app, even after complaints have been filed.[75][76] Apple has released a tool to streamline claims of app clones to a team dedicated to handle these cases, helping to bring the two parties together to try to negotiate prior to action.[77] While Apple, Google, and Microsoft took steps to stem the mass of clones based on Swing Copters after its release, experts believe it is unlikely that these app stores will institute any type of proactive clone protection outside of clear copyright violations, and these experts stress the matter is better done by the developers and gaming community to assure the original developer is well known, protects their game assets on release, and gets the credit for the original game.[48]

Valve, which operates the Steam digital storefront for games on personal computers, also takes steps to remove games that are clearly copyright-infringing clones of other titles on the service, once notified of the issue.[78]