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Feb 11

Indie Video Game Developers: The Clone Wars

For game developers copying isn’t black and white. “Inspired by” can sometimes rise to the level of wholesale theft. Copyright law expressly doesn’t protect scenes-a-faire, facts, phrases, concepts and ideas, but in practice, the “Total Concept and Feel” approach to analyzing infringement that some courts adopt essentially throws all of those restrictions on the law out of the window allowing courts to protect (or not protect) whatever they want.

So what is “gameplay” and is it protectable? Can copying that constitute infringement? Probably under the right facts. Young game developers learning their craft who want to make a game inspired by an old classic should do so at their own risk.

One carefully worded cease-and=desist letter could mean game over to your hard work.

It doesn’t take an eagle-eyed observer to point out the remarkable similarities between Gameloft’s top software and the most popular console games. The science fiction shooter N.O.V.A. is a thinly veiled knock-off of Bungie’s Halo, right down to the warthog-esque vehicle and blue AI chick. And Zombie Infection bears a striking resemblance to Resident Evil 5

Another sticky situation was Capcom’s recent iPhone game, MaXplosion, which reeked of Twisted Pixel’s ‘Splosion Man in a brazen clone that the original game’s programmer called “complete theft”. Both games feature frenetic red protagonists, confined to laboratories, that leap in the air by detonating their internal organs. Or something.


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As a law-student legal clerk at New Media Rights, Shaun Spalding provides pro-bono legal assistance to artists, filmmakers, entrepreneurs and anyone else who creates or shares their work online. If you have any legal questions, you can direct them to Shaun’s supervising attorney. You can tap into what he's thinking via Tumblr, or figure out what he's doing via Twitter: @SASpalding


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