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I'm a "weekend coder" developer making mobile apps and games and I've had the desire to make my own version of a game made for the Commodore 64 back in the early 80's by a small publisher e.g. Not EA Games or similar.

The game hasn't been ported / released on any platform since.

I want to make my version because it was fun to play but I can obviously create much better graphics now (the original had 8 colors at most, and requires a good imagination to transform a character image in the game into something with 4 limbs and a head).

Since it will take effort to make from scratch, and the game will be different when done I'd like to charge 99 cents to users... But I have fears of being sued should the original developer pop out of the woodwork from somewhere.

Here's a breakdown of original vs. My game intentions.

Original game was a 2D side view game (think original Mario bros) with 3 screens that flipped when you crossed the edge. You could collect items, there were AI players that "chased" you, ladders, and some ride-able objects... All within a specific theme.

My version would also be a 2D sideview, but be a sidescroller with at least 3 but maybe 4 or 5 "screens" worth of content. Images would be all original, have a nice 3D look to them, full color, shadows and lighting effects. You would still collect items but they would be all different, and you'd still get chased etc. but I'd try as best as possible to make my game unique... and of course it would have a different name.

To a video game enthusiast that played this game in the early 80's they'd be able to proclaim..."oh man this game reminds me of __!" I don't think they would declare it to be a "ripoff" or "just a clone" though.

Are there documented cases where a developer has been sued successfully for copying another game?.. And if so just how close was it? Likewise is there a statute of limitations?... This game is pushing 30 years old...

Or is the answer just build it and see?

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    It almost feels like the gameplay style can't be copyrighted e.g. Wolfenstein3D was the first "FPS" (First Person Shooter) game I played but there must be a million clones now. DOOM 1&2, Quake, Unreal Tournament, Halo, etc. however if you made another side scroller where you jump in and out of pipes that might be where things get iffy. – scunliffe Aug 18 '13 at 16:25
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#include <IANAL.h>
/* If you need a lawyer, talk to one */

This is all based on my very limited knowledge of intellectual property law (and mostly around board games and photographs). Do not assume that because I am writing this I know what I'm talking about. Nintendo has lawyers who know much more about this than I do.

There are three key parts of intellectual property law:

  • Copyright (protections on particular expressions of an idea)
  • Patent (protections on a general idea)
  • Trademark (protections on something that resembles something from a particular source)

Gameplay is not copyrightable. The code itself, the artwork, the wording of the rules - these are tangible (for some meaning of the word) expressions of an idea. The gameplay of a game is not these things and is not protected under copyright.

Gameplay is patentable. The best example of this is board games. US Patent 7,264,242 protects the board game Khet (and means that I really can't try to make the same game as a computer game with different artwork and wording of the rules. Side note, boardgamers will trawl old board game patents for games never published where the patent has expired.) One might also take note that Miyamoto wanted to patent jumping in games back with Mario Bros. This might have been patentable, it wasn't patented and the rest is history.

Titles, branding and marketing is trademarked. Titles of games fall into this. Mario falls into this. One might wonder if the "guy jumping into a pipe" is part of Nintendo branding. It might be. Tread with caution.

I will also point to Triple Town / Yeti Town and the lawsuit over this. Its a clone and apparently fell into copyright, though I can't read legalese quite well enough to determine what exactly it was with my limited knowledge that the infringement was on (there was infringement, but what area? I'm guessing not enough change to the UI...)

Further reading: Video Games and the law: Copyright, Trademark and Intellectual Property

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  • Great information and links to relevant articles. I'm extrapolating that it is a gray area that isn't black and white in terms of the rules. I still plan to make my game because I think it will be fun to play, even if only between friends and family. I hope that my game will be unique enough on its own merit that the "inspiration" from a previous game is seen as just that. – Wilbur Aug 18 '13 at 20:32
  • Reading through the Triple Town article, it looks like it failed a "Judges are not machines" test. Yeti town was a clone, everyone knows that Yeti town was a clone, and the Judge called them on it, rather than letting them nit-pick their way out of their infringement. Copyright infringement is a little like pornography, in that the final test is less a hard rule and more a judgement call. – DougM Aug 18 '13 at 21:10
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How publishers handled this issue in amiga times was that they asked programmer to implement one feature like blue background tiles to the game. This supposedly ensures the game is not exact copy of some other game, and that the programmer actually wrote the game.

But of course if you can make your game have original elements in it, it'll be better. Basically good way to think about it is that taking someone elses game elements for your game saves about 1/2 of the development time, and thus makes your game cheaper. One year project turns to two year project if you make original game elements. Quality games spend the time.

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  • Yeah all my graphics, sounds, code, will all be written from scratch. It will just be "inspired" by this original game... And hopefully majorly improved upon by updating the graphics and framerate to modern standards. – Wilbur Aug 18 '13 at 20:18
  • wilbur: if you know beforehand that some combination of game features is guaranteed to give good game, you can avoid failures. But it will be clone. – tp1 Aug 19 '13 at 12:25

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