the classic game "Descent" was written by Parallax and published by Interplay. The split-up remnant of Parallax owns all of the assets -- the ship name and artwork, the name of the evil corporation, the music, the robot artwork. Interplay owns the name Descent. Anybody can make a game that flies like Descent (Sol Contingency and Geocore are both trying to), but only an Interplay-licensed company can call their game "Descent", and only a Parallax-licensed company can put in the "Pyro-GX" and the "PTMC". And there seems to be some distrust between the two companies.
This has led to a fair bit of complication for the Interplay-licensed Descent:Underground game (currently on kickstarter -- https://www.kickstarter.com/projects/descendentstudios/desce... ). A lot of fans are asking "where's the pyro?" Well, they can't have the pyro, because they don't have a license for that part of the game. They can make a ship that looks fairly similar and flies identically, but it has to be identifiably visually different and have a different name.
This statement surprised me. Is it really true? It appears that there is conflicting precedent:
"The first approach is from the 2nd circuit "The Subtractive Approach" (Altai, Nichols) and the other approach is "The Concept and Feel Approach" (Ruth Greeting Cards, Krofft)"
> I am curious to know what would happen if someone decided to clone the exact level design of a game but changed all the audio/visual assets.
This actually happened quite often in early generations of computer games and consoles. Super Mario Bros had quite a few clones where all that changed were the visual assets.
More recently, there are many examples of this happening on the iOS App Store and other venues with a low barrier to entry.
I seemed to recall such Mario clones as well. Nintendo is quite protective of their IP, so I have to think that they must have threatened legal action. Does anyone know? Is there precedent for legally protecting the layout of a level?
I think the clone I'm semi-remembering was a PC game. Regarding your second question: There were very many unlicensed Nintendo games. I don't know how many of these Nintendo fought. They very famously battled Tengen over this issue in the courts.
But they are patentable (or at least elements of them can be). Konami successfully sued[1] the makers of In The Groove, a Dance Dance Revolution clone. I know parts of Mario Kart are patented[2], so I wouldn't be too surprised if parts of Super Mario 64 are patented as well, given that it pioneered the 3D platformer genre.
Pure speculation: It's possible Super Mario Sunshine(2002), Super Mario Galaxy(2007) and other Mario-like 3D could have "refreshed" any patents from Super Mario 64.
>"1. A dance game apparatus comprising: music output means for outputting one piece of music from at least one stored piece of music; a floor panel having a step-on base section; said step-on base section comprising a top panel and a support member which supports the panel; detection means for detecting a stepping operation on said step-on base section; said detection means comprising stepping sensors interposed between said panel and said support member at mutually opposing positions of said panel; said stepping sensors comprising longitudinally extending conductive sections having a longitudinal length, one of said conductive sections being moveable laterally relative to another of said conductive sections at any one of a plurality of positions along the longitudinal length of said one conductive section to effect contact with said other conductive sections at any one of a plurality of corresponding contact positions such that said stepping sensors detect stepping on said step-on base sections at plural locations corresponding to said plurality of corresponding contact positions, guidance means for performing a stepping operation instruction to said step-on base section in time with said music; measurement means for measuring a time deviation between the timing of a stepping operation instruction and the time at which the fact that said step-on base section is stepped on is detected by said detection means; and evaluation means for providing a higher score the smaller the measurement result." //
FWIW the Mario Kart patent you cite refers to methods of controlling NPC in order to provide strong rivals, avoid bunching of NPC in racing games and provide variation in race orders despite relatively fixed characteristics (acceleration and top-speed). None of that prevents you having cars with the same styles, having the same tracks, having the same end goals, having the same range of pickups and such - it only relates to specific algorithms for providing competing computer controlled cars/NPC.
The game's actual source code would be under copyright, but presumably you could re-write a game and exactly copy its gameplay and that wouldn't be copyright infringement any more than writing a poem using the same meter with different words as a famous poem would infringe.
> any more than writing a poem using the same meter with different words as a famous poem would infringe
This is clearly a rabbit hole of exceptions and ifs, but this somehow doesn't apply to music as well, based on the recent judgement over Blurred Lines (the song).
APIs are copyrightable? I don't think so. Oracle lost, after all.
However, on the primary copyright issue of the APIs, the court ruled that "So long as the specific code used to implement a method is different, anyone is free under the Copyright Act to write his or her own code to carry out exactly the same function or specification of any methods used in the Java API. It does not matter that the declaration or method header lines are identical." The ruling found that the structure Oracle was claiming was not copyrightable under section 102(b) of the Copyright Act because it was a "system or method of operation."
That ruling was overturned on appeal. From the same Wikipedia page:
_The appeals court reversed the district court on the central issue, holding that the "structure, sequence and organization" of an API was copyrightable._
The sentence "games are not copyrightable" isn't particularly meaningful. That does not inform what is or is not protected. The link in question does not say that games are not protected. It says, and I quote, "Copyright does not protect the idea for a game". Keyword: idea. The idea is not protected. The expression is.
What is a game if not an expression of an idea? I would not call the idea for a game a game. I would call the expression of an idea a game. Therefore I would consider games protected by copyright. At least in casual conversation. When speaking in legal terms there is a lot more nuance.
If you re-created Mario 64 from scratch but art swapped every asset with something original you would get bitchslapped in court. Hard. The layout and configuration of levels is not an idea. It's an expression of an idea. If you want to make a different level using different assets but using the same mechanics of Mario 64 then that is probably acceptable. You're making your own expression.
It does get a little tricky if you start copying the physics of Mario 64 precisely. There are lots of platformers. Why copy the exactly moveset from Mario 64? Why meticulously reverse engineer the physics of jumping from Mario 64? Copy too much and you run risk of losing a copyright suit as demonstrated by Tetris.
A set of rules. Such rules are potentially eligible for patent protection. They are not eligible for copyright protection.
> On one hand you can say that games are not protected. Tetris however is. And has successfully been defended us such in court.
I suggest you read the actual text of the Mino decision, which rests heavily on visual elements, not gameplay. I also suggest you not put too much stock in the decision of a single district court judge. District court decisions are not binding precedent. Especially ones obviously written by a judge who either doesn't understand what the functional elements of a game are, or was looking for an excuse to find for Tetris.
> The layout and configuration of levels is not an idea.
For you and I to have a meaningful discussion we would need to not use the word game. I'll just leave it at that.
At least you agree with me that layout and configuration of levels is protected by copyright. At least I assume you believe that assets are protected. You don't specify.
All of these waters are largely untested. It doesn't take much discussion to hit them. Good luck.
In the context of this discussion, "game" should probably be read as referring to a particular software implementation of a game, like the game Super Mario 64. Not like the game of chess.
It's actually very important that games themselves aren't copyrightable. What if Doom (or whoever did the first FPS) had a copyright on FPS? There was an interesting article on HN a few months ago about the history of game lawsuits. basically, gameplay is not copyrightable, but characters, assets, etc. are.
Surely it's the 'level' of reproduction that counts? You're argument is like "what if Stephen King had a copyright on characters flipping out and attacking their families" - clearly, that would be ridiculous and no-one would argue in its favour. However, if someone made a scene-for-scene remake of The Shining with different actors, most people would think some sort of copyright permission would be required.
I'm not sure if you understand the video game industry, but literally every popular game is a clone of something that came before it.
EDIT: This is obviously not true for some X where X is a base case of a popular game genre (e.g. Portal, Donkey Kong, Wolfenstein 3d), but it's generally true. Mario 64 is just a 3d platformer at some level, which is why it's so easy to clone.
The games on the right certainly are the originators of the games on the left; in fact, in both cases, the developers of the game on the right were the very team which followed up by developing the game on the left.
