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The majority of games build on successes of other games and many are downright clones. So where is the limit of emulating before legal issues come into play? Is it down to literary or graphic work like characters and storyline that cause legal problems, or can someone actually claim to own gameplay mechanics?

There are so many similar clone games out there that the rules are probably very slack or nonexistent, but I'd like to hear the views of more experienced developers / designers.

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possible duplicate of Legal issues for a "fangame" of a commercial franchise? –  Tetrad Jul 27 '10 at 6:11
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The company I work for has a Flash game portal as client. They often ask us to make a clone of a game they liked (but better :P) –  Bart van Heukelom Jul 28 '10 at 20:17
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up vote 59 down vote accepted

I am not a lawyer and this is not legal advice. These are things I've heard many times over and have no reason to doubt.

Game mechanics cannot be copyrighted or protected in any fashion.

I could make a game called "Crystallized" that was Bejeweled, in every imaginable way, and as long as I didn't copy the art from Bejeweled (either directly, or by drawing new art that just happens to be nigh-identical) I'd be totally fine.

Game mechanics have been copied often enough that, if this weren't the case, I have no doubt we'd have heard about it by now. Game design is pretty much one giant incestuous ball of borrowing, and, honestly, is better for it.

Keep in mind that you can be sued for anything, even if you're not breaking any contracts or laws, and they might win. But I've never heard of that happening with regards to game design.

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Good answer. copyright.gov/fls/fl108.html is the US Copyright Office's statement on the matter, in case that helps you sleep better ;) –  Andrew Brockert Jul 27 '10 at 7:35
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Aside from not copying the art, you also shouldn't copy other trademarkable assets like the name of the game (or the characters in the game, if there were any). –  Ian Schreiber Jul 27 '10 at 7:44
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Good answer, but: If the art is too similiar, it's illegal. The balancing is part of the art! And: Different countries have different rules! –  Andreas Jul 27 '10 at 15:03
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Game mechanics cannot be copyrighted but they can be patented, the Monopoly board game being one of the canonical examples. It is rare for games, especially video games, to have patented mechanics though. –  user744 Jul 28 '10 at 17:43
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This was recently posted as well and I thought it would add to this, "NAMCO Demands Takedown Of Pacman Game Created By Kid Using MIT's Scratch Programming Language" techdirt.com/articles/20100730/17081510430.shtml –  Fuu Aug 3 '10 at 5:46
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Great question, what better way to ask about copyright than through games, which encompass all forms of media and IP.

First off, be aware that an idea cannot be patented.
Second be aware that the copyright depends on the national law you are recommended to adhering as a natural citizen. There are for instance some difference in interpretation of Fair Use in the US vs the EU.

Fair use is the most significant limitation on the copyright holder's exclusive rights (United States Copyright Office, 2010, para. 1)

The UMUC Library, has set up a well comprehensible site on the matter:

What Can be Copyrighted?

  • Fixation: the work must be physically stored somewhere. You cannot patent your breath.
  • Originality: to some degree. Modification may render a work to be considered original.
  • Minimal Creativity: a new concept should be obvious

Lastly, shamelessly quoting, the HM Chandler "The Game Production Handbook 2nd Ed", March 18, 2010 Jones & Bartlett Learning under the banner of fair-use:

Several basic types of IP are legally valid: copyrights, trademarks, trade secrets, and patents. The differences depend on how the idea is expressed. Producers should be familiar with the differences between these, especially independent producers working with a publisher. If the publisher is interested in your game and is ready to sign a deal, they will most likely demand that the copyright in the game be conveyed to them so they can create derivative products and re- produce the product free and clear.

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Foreword: Anything related to laws will always be in a gray area, because the case outcome ultimately comes from a handful of people.

Others have accurately pointed out that game code and assets fall under copyright law and that product, company, etc. names fall under trademark law. However, although others have pointed out that you cannot copyright game mechanics, this isn't 100% true.

Let's look at the legal history of Tetris, a game often cloned by new game developers.

In mid-2006, and in late 1997, TTC's legal counsel sent cease and desist letters to Web sites on the basis of Tetris-type games infringing the "Tetris" trademark, trade dress, and/or "look and feel" copyright. Around 2009, TTC and Tetris Holding LLC brought legal action against BioSocia, Inc., on the grounds that BioSocia's "Blockles" game infringed on proprietary rights that were held by TTC and Tetris Holding LLC. On September 10, 2009, the legal case against BioSocia was resolved, with BioSocia agreeing to discontinue making the "Blockles" game available to the public. In May 2010, TTC's legal counsel sent cease and desist letters to Google insisting that 35 Tetris clones be removed from the Android Market. A US District Court judge ruled in June 2012 that the Tetris clone "Mino" from Xio Interactive infringed on the Tetris Company's copyrights by replicating such elements as the playfield dimensions and the shapes of the blocks.

Source: http://en.wikipedia.org/wiki/Tetris#The_Tetris_Company

Mino vs Tetris

Tetris and Mino

So are game mechanics copyrighted? The answer, as with many legal issues, is maybe.

Read more about Mino vs Tetris here.

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Other answers have covered trademarks and copyright pretty well, but do not forget patents. Many game mechanics developed in the early days of gaming are patented. The 2 that I know of are minigames while the main game loads (Ridge Racer), and jump-in multiplayer (Gauntlet). That is why you almost never see these features in any games, even though they are both great ideas. In theory if you want to use these mechanics then you have to pay a royalty to the patent holder, which could be expensive. In practice however, it is very unlikely to be enforced unless you are making a million-dollar type game.

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Game mechanics are not subject to intellectual property controls. Names can be trademarked and any game code or assets are subject to copyright protection. There is some legal precedent for going after games that are "close" (http://en.wikipedia.org/wiki/Lexulous) but that was in an Indian court so I know much less about their IP laws (see also: the various FOSS StarCraft clone projects, most threatened with suits because they had "craft" in the name).

Trademark law generally draws a distinction based on if an "average consumer" could be mislead into thinking you were related to the other property. Copyright is much simpler since it only covers concrete works. If you redrew every sprite from your favorite game they would not be violating any copyrights (but might be violating a trademark if it is something high profile).

Recently some companies have tried to bring patent suits against some big-name game companies, claiming things as outlandish as they have a patent for the concept of text chat. Time will tell as to if these are a real threat, but until your revenue is in the millions I wouldn't worry about it.

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My personal belief is that if you have to ask the question, then you probably know in your heart that what you are doing is borderline wrong. It may or may not be legal, but to me its besides the point. If you cant be true to an art that you created then why bother.

Of course if you just want to knock down clones of popular games to make a quick buck, I doubt that anyone would bother with the hassle of legal action against you, since more often then not, if you just copied something and don't put your own spin on the issue, then it probably wont sell well enough to matter to the original.

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Although he is probably asking this in order to shape his own plans, he didn't ask about his own game, he asked about the existing games that copy each other (which is the vast majority of games.) –  jhocking Apr 23 '11 at 15:18
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Your personal belief has little to no legal precedent. When applied to this question it is also poor advice as all art and science works by building off existing work. Example: All parody. Concrete examples: Linux OS, and the game "Braid". Writing exact (mechanical) game clones is also extremely useful for teaching how to do game programming, and is a common set of assignments. If you put a project on the market as part of your learning, then you've learned even more. Stealing copyrighted art and sound and trademarks is against the law tho. –  Merlyn Morgan-Graham Apr 24 '12 at 17:26
    
^ Note: I'm not a lawyer :) –  Merlyn Morgan-Graham Apr 24 '12 at 17:31
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