When I first saw the concept for Mighty No. 9, Inafune’s ill-fated “spiritual successor” to Mega Man, my first thought was that it was quite obviously a rip-off of the aforementioned and beloved series. Not that I cared. People have wanted a new Mega Man game in the traditional style for quite awhile now so my second thought was “If Capcom won’t do it, why not one of the people that created the franchise in the first place?”.
I would say the same thing when it comes to Bloodstained by Igarashi and Yooka-Laylee by multiple talented ex-Rare developers. People want new Castlevania titles and N64-era inspired Rare games. For whatever their reasons, the big developers and/or publishers who were once praised for the quality and ingenuity of these games have deemed them not fit for consumption anymore. Translation: the corporate bean counters figured they wouldn’t make a profit. The Kickstarter campaigns for these games would say otherwise however. The three games mentioned above have earned an average of over $4 million each. It’s quite apparent that gamers want these games and are willing to pay for them.
I ask the question again: If these big time publishers won’t give these games the time of day why not let someone else have a go, especially the people that helped cultivate these properties from day one? Personally you won’t hear any argument from me. I want more games and more options. Options are a consumer’s best weapon. I will happily take my potential sale out of one developer’s pocket and put it into another’s if they do more to impress me, regardless of how many global offices they have or how many dozens of people worked on their game. More options just means that as a consumer there’s a better chance we win.
That’s not really what I’m interested in here though. My question since these Kickstarters became popular was always a simple one: These are obviously reasonable facsimiles of video games somebody else owns the rights to. Is this legal?
LEAST SURPRISING SPOILER EVER: I am not a lawyer. If I was at all familiar with copyright law I probably wouldn’t even be writing this. It seems like this question has never been tackled before though, at least as far as I’ve seen. The vast majority of the time I will side with creative people over large corporations simply serving as a vessel for said creatives, so let it be known: I really don’t care. To reiterate, I am happy as a clam that these people are getting a chance to make their games again. It just strikes me as odd that everything about these games looks, sounds, smells, and feels like games that are owned by completely different entities. Legally speaking the fact that these people created these franchises means nothing. So how are these devs able to make these games on their own when they’re quite obviously aping long-established franchises? Again, it doesn’t really matter the talent and pedigree of those doing the aping.
The rationale here must be that many games are extremely similar, just as a lot of songs, movies, and TV shows are similar. How do you prove that Uncharted is a rip-off of Tomb Raider, instead of simply being inspired by it? How do you prove that Tom Cruise Playing A Spy is a rip-off of That Other Movie Where Tom Cruise Plays A Spy? All things being equal, you can’t.
I’m sure there’s a term for this that’s unbeknownst to me. There’s a legal understanding that different forms of the same media are going to have similar themes, devices, and general goings on. This is why (thankfully) there isn’t one single action movie in the history of cinema. But what about when an employee comes up with an idea their employer subsequently owns then jumps ship and recreates that idea, just with different window dressing? At that point it’s essentially one company mimicking another’s property.
Harlan Ellison successfully sued James Cameron for a settlement out of court because he felt Cameron’s script for The Terminator copied ideas in Ellison’s short story Demon With A Glass Hand. From what I gather most people feel it was a frivolous suit, yet it yielded financial results one way or another. A not-so frivolous example of this kind of thing would be Vanilla Ice (you know, the guy that does home repairs on TV) vs. Queen and David Bowie. Vanilla Ice quite obviously copied the bass riff from Under Pressure. The lawsuit resulted in royalties paid.
For clarity’s sake let’s focus on the first example: What if Ellison’s role in the above dispute was played by a hypothetical studio Cameron had previously worked with? A studio that had documentation that they owned a script Cameron had wrote that was extremely close to The Terminator? A script where Arnold wore an army jacket instead of a denim one, and could shoot lightning out of his hands if he chose not to simply use guns. Otherwise they’re the same. Slam dunk for any lawyer right? To a layman it seems that way at least.
Then I figured if a lawsuit like this ever came to pass, the independent developer could simply state that their game wasn’t mimicking that game, it was mimicking this other game over here made by Publisher ABC who they’ve never worked for. Easy to do given, as previously stated, how similar games are to one another. The problem with that is you admit you directly copied another game, and citing one publisher instead of another just changes who’s targeting you. You don’t think Publisher ABC is going to simply let it go do you? You’ve just given them license to sue you. How does any developer prove that they didn’t borrow from another game, let alone a developer that used to work on a game that’s strikingly similar to the one they just released themselves?
This is just a thought piece. I don’t know the answers, and obviously there’s much I don’t know because otherwise one of these lawsuits probably would’ve already happened. I do think it’s interesting though that copyright infringement is a thing among musicians, filmmakers, and other types of artists but not in games. Will we see it some day? At this point it seems unlikely but with the advent of indie projects helmed by devs doubling as former employees, it certainly raises an eyebrow. Meanwhile I eagerly await my day one purchase of Bloodstained.