作者：Michael Thomsen

电子游戏领域的剽窃与借鉴之间的定义并不明朗，几乎每隔数年都会形成一些传统，而后又经过调整形成新惯例。最为成功的游戏创意总会成为众人的灵感来源，例如第一人称射击游戏中的健康还原系统、平台游戏中的分支关卡、台阶和游戏世界等。

那么究竟要借鉴到哪种程度才算是公然剽窃？人们看一眼就很容易辨别出属于创意剽窃的行为，但却无法准确定义这种行为。

从最近几年来看，手机及社交游戏几乎就是创意雷同的重灾区，拥有足够资源和抱负但却缺乏创新的团队都可以换汤不换药地推出新产品，例如将经典连线消除游戏中的宝石替换成汽球，将Burg名称换成Ville就又是一道新菜。

而面对两个几乎相同的游戏图标时，玩家也难以辨别真假。那么这个领域的游戏山寨现象，究竟是动了原创游戏团队的奶酪，还是在自绝后路？美国版权法律条款对手机及社交游戏领域有何影响？开发者有没有什么妙计可抵御这种行为？

我们很难计算到底有多少收益流向了那些克隆游戏，目前来看，山寨现象对游戏行业的最大影响就是打击了人们的创新热情，而这一点却正是市场崩溃的不良前兆。

硬核社交游戏开发商Kixeye首席执行官Will Harbin对此表示，“……开发商无法在Facebook赢得硬核游戏玩家的部分原因就是，这个平台的多数游戏都很雷同，充斥过分策略游戏、城建游戏、黑帮游戏等。它们基本上是大同小异。”

Kixeye一直是反对创意模仿现象的活跃开发商，并在2011年夏天发表公开信称竞争对手Kabam游戏《Edgeworld》挪用了《Backyard Monsters》中的相关元素。

而Kabam则回应称《Edgeworld》是自己之前发布的四款游戏再加上科幻元素的综合体。类似的情况在主流社交及手机游戏开发商中并不鲜见，不少公司都是套用他人创意，添加一些新界面整合成自己的游戏。

这种争端反映出了手机及社交游戏领域的相对局限性——这个市场仅有数种游戏题材，大家难免在有意或无意间使用了他人的创意。Harbin称“对硬核游戏玩家来说，他们目前在Facebook就只有策略游戏这个选择，这里的冒险游戏、赛车游戏或模拟游戏非常罕见。”

“我认为比较有利于这个生态系统良性发展的做法就是，在开发初期就广泛猎多种游戏题材，然后再深入挖掘其中精华。但我们只看到多数人都在从众，那些急于求成者因此而大获其益，虽然这类游戏暂时还会有市场，但我不认为这是一种可持续长存的发展模式。”

克隆游戏带来的另一个较不明显的恶劣影响就是导致人才流失。成功的克隆游戏公司可以快速吸金，他们也因此成了程序员、动画人同、设计师的理想去处，后者为了获得高薪可以暂时忽略发挥创意和才华的重要性。

“我希望富有才华的员工在入职前要三思，想想自己究竟愿意为谁工作，是为鼓励创新的公司效力，还是为主张模仿的企业工作？我可以说即使是那些急于求成的克隆公司也仍有一些真正的游戏基因，他们当中也有一些渴望推出原创作品的成员。”

版权保护法

模仿他人作品也是一个法律问题。但美国版权法对于这种现象的定义也较为模糊，Davis & Gilbert LLP公司IP律师Greg Boyd表示，“在美国传统观念来看，侵犯版权的标准就是‘本质上相似’，许多人听到‘本质上相似’就会认为‘这真是苟刻的规定’，但实际上这种定义很含糊。但如果真的要细究这个定义，你就会发现很难想出个更合适的描述。”

创意本身并不在美国版权法的保护之列，只有当创意落实成为有形媒体时才会得到保护，“如果我说自己有一个游戏机制的设想，然后你听到了就回去如法炮制一个采用这个机制的游戏，你的做法可能有违道义，但并没有违反版权法。因为我没有将自己的想法落实成有形媒体，没有写下来，也没有进行编码。只有将其转变成代码后，它才是有形媒体。”

因此，解决版权争端并非易事，因为当事人不但要指出两款游戏之间惊人的相似之处，还要说明这两者在编码上的雷同。

但在社交及手机游戏领域，将宝石转变为一些体育道具，或将蟾蜍替换成蝙蝠可以视为本质上的不同，至少是难以让法官裁决两者之间是否具有明显区别。

另一个复杂之处在于，不同国家的版权保护法也互有差异，起诉海外开发商无疑会增加受害者的法律成本。

Booyah Games业务开发总监Brian Cho表示，“我们已经遇到多起此类事件了，《DJ City》在俄罗斯直接被山寨，在亚洲，尤其是韩国和日本也有大量克隆游戏，但它们所投放的平台并非我们涉足的市场。”

“如果剽窃我们游戏的产品也出现在Facebook平台，我们必定会遭到打击，也当然会诉诸行动。但因为有些事件发生在我们并不打算进军的发展中国家市场，所以我们这种小型初创企业就没有必要大费周章向他们讨回公道。”

即使法律明文禁止，那些海外开发商在短期内的山寨行为也足够他们赚得大笔利润。Boyd称这种现象的原因在于美国与海外市场的收益存在差距，“你在许多国家数天或者数周内发售盗版游戏，也有可能赚到大笔钱”，所以才有不少仿冒者明知自己的游戏最终会被撤下，也仍然要放手一搏。

Facebook和苹果App Store在这一点上确实很有帮助，“Facebook为了避免被卷入法律纠纷，当然会遵守美国法律，他们拥有专业的法律团队，他们很了解版权法，也知道如何采取措施防患于未然。”

“我们有个竞争对手并没有完全剽窃我们的一款游戏，但却在自己打出的广告中直接引用了我们的专属语言，他们瞄准的是我们的目标用户，这种做法似乎就是在暗示他们所推广的那款游戏跟我们有关。这种做法有点不地道，法律团队认为我们如果起诉对方还是有可能获胜，所以Facebook就封杀了那些广告。”

版权法无法发挥效力的另一层原因是，游戏代码和创意成果之间存在区别。某公司有可能窃取他人游戏AI代码，将其调整后运用于自己的游戏，使其看起来更像是原创内容。或者某开发者有可能复制同个AI模型，然后自己编写代码。这也许就是电子游戏领域所特有的现象，那么美国版权法是否该以时俱进，依此调整相关内容？

Boyd认为这个问题很有建设性，但还是得考虑其中的复杂性，“你不能为某个艺术媒体而专门修改法案。电影、游戏和书籍已经在《第一修正案》的保护范围之内。我们还有版权法在发挥同样的作用。如果专为电子游戏搞特殊，最终结果可能适得其反。”

实际上，捍卫某人的创意作品以及界定侵权行为是一个缓慢的过程，当事人需为此提供两款产品本质上的相同之处以及技术代码等大量材料。

Cho的经验是“通常先看题材、游戏机制，然后再深入探索对方山寨游戏的严重程度，我们有不少方法可以检测他们剽窃了多少成份，如果到达一定程度我们就会采取行动。这些数据是我们的重要证据。”

应对策略

许多开发者和发行商都发现了一些应对仿制游戏的方法，Boyd自言“我每天都在跟客户讨论这种话题：哪些事情最值得你投入时间和金钱？你可以选择耗费大量精力和资源去打一场海外官司，也可以选择专注于制作更好的内容。”

“我们所看到的黑市虚拟资产就是一个绝佳的例子，它刚开始是一个非常严重的问题，但后来大家就发现这种现象离不开市场力量的推动。假如游戏设计师在项目动工之初就知道合理利用这股力量，深入挖掘市场，这可能就不再是一个问题了。现在采用销售虚拟道具创收的免费增值模式已经成了通用准则，即使是我们之前尚未涉猎的可下载内容也是一种我们可挖掘的资源。”

我们还可以从另一个角度看待问题，山寨现象或许正是促使开发者开拓新领域的一个重要信号。Pocket Gems首席营销官Ben Liu表示，“我们看到仿制游戏时总会心生不快，但同时也意识到唯一有效的抵制手段就是持续创新。”

“当我们发布游戏之前总会有几个月的交付周期，所以仿冒者通常会落后我们几个月，而那时候我们的产品经过不断调整已经不再是刚出炉时的模样了。”

Booyah在每款产品的创新上也非常有先见之明，也很善于与运营合作伙伴打交道，以便让产品赢得市场先机。

Cho则表示“我们在移动领域的地理定位游戏和虚拟道具等特定机制上有多项专利权，我们当然也想保护这些专利。我们保护《DJ City》的一大优势是与许多艺人和音乐品牌建立了直接合作关系，我们因此获得了许多优质的音乐内容，但许多竞争对手却做不到这一点。我想这正是我们的游戏能够脱颖而出的一大原因。”

手机及社交游戏领域的技术发展非常迅速，这有助于为该市场引进更多题材的游戏内容。Harbin表示，“Flash也已经能兼容虚幻引擎，我希望更多重视质量的开发商抓住这一机遇针对浏览器开发游戏。”

“如果你想保护自己的产品，那就得开发更有难度的产品。使用虚幻引擎开发产品，你就得让自己的游戏在内容、故事、图像等方面超越他人。”

数年之后，那些低级的仿冒者最终会被排挤出市场。Cho认为“随着游戏质量提升，众多竞争者就无法再轻易地克隆他人产品，这样原创开发者就有望彰显自己的独特之处，让拥有AAA级质量的游戏胜出。在早期人们尚且容易克隆游戏，或者为其换张面孔重新包装上市，但我认为今后几年仿冒他人游戏将越来越困难。”

情势会更加乐观

即便是采用了新技术，投入更多开发成本，手机及社交游戏开发者仍不免遇到所有媒体都会到达的极点，那就是重复他人的做法。一种创新形式总会经多次变革，在此期间还有可能加入多种更有效的优化元素。

Harbin表示他承认《War Commander》深受13年前的PC游戏《命令与征服：红色警戒》系列的影响，但他希望在MMO风格的实时环境中体验《命令与征服》，这样就可以随时参与一直在持续进行的战役，“……我总是想在原游戏体验的基础上不断对其优化，但我最反对的是大幅度地复制同一个平台上已经存在的游戏内容。这会给整个产业带来危害。”

多数开发者创造新游戏的方法都介乎借鉴与模仿的范畴，都要考虑市场上已存在的游戏产品特点，当前可行的设计方法，并调查最有市场潜力的游戏类型。

据Liu所称，“我们有一些成员喜欢根据自己的喜好开发游戏，我们希望创造适合运行于移动平台，同时又能吸引各类用户的游戏。我们的创意来自对所有游戏类型的观察，并从中找到自己想玩的游戏。”

虽然克隆游戏现象不可能彻底绝迹，但Boyd认为“一切情况都会好转，手机及社交游戏领域已有足够资金，而游戏平台的成熟发展也将促使人们制作更优质的游戏……这也正是多数开发者和游戏玩家的共同目标。”

只有避免出现山寨泛滥，大笔资金流向仿制品，无人尝试创新的现象，才有利于整个行业的长期健康发展。如果人人都急功近利，企图通过模仿他人而一夜发迹，那么这个行业迟早会自我衰竭。

但一直纠结于惩罚仿冒者的念头，则有可能让开发者分心，无暇继续前进。在多数情况下，开发者通常是因过硬的产品而非其打败的对手而得名。既然仿冒者永远只能追随原创的步伐，开发者就有理由相信自己已经取得胜利。（本文为游戏邦/gamerboom.com编译，拒绝任何不保留版权的转载，如需转载请联系：游戏邦）

What the Copycat Saw: Creative Theft in Mobile and Social Games

by Michael Thomsen

The distinction between theft and inspiration is often unclear in video games. Traditions are formed, broken down, and remade every few years. The most successful ideas are eagerly absorbed by others, from regenerative health in first person shooters to the subdivision of platformer levels into world and stage.

At what point does borrowing successful ideas turn into outright thievery? Like art and pornography, people know creative theft when they see it — but coming up with a reliable definition is difficult.

In recent years, mobile and social games have been especially susceptible to creative theft. Working with small teams on games with a simple few mechanics, it’s been easier than ever to swap out a jewel for a balloon or a -Ville for a -Burg and let the millions fall where they may.

In earlier years, the scope and complexity of games formed a natural obstacle for copycats. Even with a regenerating health system, a developer would have to build out huge swaths of level geometry, design enemy intelligence, calibrate the world’s physics, and rejigger a few mythic archetypes into something that seemed at least vaguely new.

With these obstacles flattened by the technical limits of browser plug-ins and the need for commuter gratification, mobile and social games have become a feeding ground for people with resources and ambition but few novel ideas of their own.

And players find it difficult to tell an original from a copycat when both are represented with a mere app icon. Will the copycats eat everyone’s future, or just wind up cannibalizing themselves? How does U.S. copyright law affect mobile and social games? Are there strategies to protect one’s work from cheap clones?

One Sail and 100 Anchors

It’s hard to calculate just how much revenue is lost to fast-follow copies. The bigger threat copycat games pose is in flooding a vibrant area of growth with creatively stagnant backwash, the precondition for a market collapse.

“We’re worried that we’ll pigeonhole the distribution vehicle, which in this case is Facebook, into something that’s very narrowly focused,” Will Harbin, CEO of Kixeye, said. “Part of why we’re not attracting the hearts and minds of the core gamer on Facebook is that a lot of these games are kind of the same. There are a ton of strategy games, there are a lot of city building games, there are now a ton of mafia games again. It’s just kind of more and more of the same.”

Kixeye has been one of the most vocal developers in drawing attention to creative conflict. This summer, Harbin published an open letter arguing that Kabam’s Edgeworld had borrowed over-liberally from Backyard Monsters.

Kabam countered that the game was, rather, a synthesis of four of their own previous games combined with a new science-fiction overlay. Similar claims can and have been made about nearly every major social or mobile developer — they’ve just ripped someone else’s idea off, swapped new sprites into someone else’s game.

These conflicts reflect the relative narrowness of social and mobile games so far — when there are only a handful of genres, it’s hard to not step into other developer’s turf, intentionally or otherwise. “For the core user, it’s really only strategy games right now,” Harbin said. “There are very few adventure games, racing games, or simulation games.”

“What I think would be better for the ecosystem is to have a lot of early development in a wide variety of genres, and then people deep diving on those. But instead we’re seeing most people just chasing the same thing. For the most part, these fast followers are still being rewarded with revenue, so there is some demand for it, but I don’t think this current approach can be sustained for long.”

One of the less visible impacts of copycat games is in the subsequent draining of the talent pool. With successful clone companies making quick globs of money, they can seem like exciting places to work and suddenly programmers, animators, and designers are paid lots of money to defer their talents while new ideas wither away in their back pockets.

“I want talented employees to think twice about who they’re working for,” Harbin said. “Do they want to work for someone who’s innovating or someone who’s copying? I’d say even of the copycats and fast followers there’s some real gaming DNA in there. I’m sure there are some people there screaming to make original titles.”

And the Law Says “Whatever”

Copying another person’s work is a legal issue as well as a philosophical one. Yet, copyright law in the United States is intentionally vague, so as to reflect the real uncertainty between theft and inspiration. “The standard for copyright infringement in U.S. doctrine is ‘substantial similarity,’” Greg Boyd, an IP lawyer for Davis & Gilbert LLP, said.

“A lot of people upon hearing ‘substantially similar,’ will say ‘what a horrible rule,’ but it is intentionally vague in order to be powerful and flexible. If you really sit around and think about it, it’s difficult to come up with something better.”

Copyright law does not protect ideas, per se, but the way in which an idea has been fixed in a tangible medium. “If I say I have an idea for a game mechanic and you think that’s great and go out and make a game out of that mechanic you might have violated some things but you haven’t violated copyright law,” Boyd said.

“I hadn’t fixed my idea in a tangible medium, I hadn’t written it down or coded it. After things are in the code form, then it’s in a tangible medium.”

For these reasons, litigating a copyright infringement case can be especially difficult, because you not only have to demonstrate egregious similarities between two games but show how their specific expression in compiled code is substantially similar.

With social and mobile games, changing a toad into a bat or a jewel into a piece of sports equipment can seem like a substantial difference, or at least blur the distinction enough to make it hard to make a ruling.

Another complication is that the differences in copyright law from country to country make it difficult and costly to pursue a lawsuit against overseas developers.

“We’ve seen a lot of copycatting, specifically in Russia there was a direct clone of [DJ City],” Brian Cho, director of business development for Booyah Games, said.

“In Asia there were also a lot of copycat games, especially in Korea and Japan, but those weren’t on any of the platforms that we were on.”

“I think we would definitely have taken a hit if there was a copy of our game on Facebook, we would definitely have taken action there. But because it was in developing countries that we weren’t planning on going to anyway, we couldn’t necessarily take any steps to protect ourselves as a small, startup company.”

Even with the law on your side, it can be lucrative enough for developers in countries outside the U.S. to run a game that infringes on copyright for a short period of time, making it all but impossible to stamp out completely. “Income disparities between the U.S. and overseas contribute to it,” Boyd said. “If you’re going to be a pirate in a lot of countries for just a matter of days or even a few weeks — that can be hugely profitable, even if you know that eventually you’ll be taken down.”

Having a common platform like Facebook or Apple’s App Store can be helpful, in that it at least offers a common authority for appeal. “Facebook will absolutely comply with U.S. law and in some cases they’ve intervened ahead of a court order or a threat of legal action,” Harbin said. “They have a legal team there and they understand copyright law and know that life will be easier if they can take some action in advance.”

“In one instance, there was a competitor who hadn’t completely copied one of our games but they were directly referencing elements of our proprietary language in their advertising. They were targeting our users and insinuating that we were responsible for the title they were advertising. It was a little bit of a gray area but the legal team realized that if we sued them we probably would have won, and so [Facebook] suspended all those ads.”

Another area of vagueness with game copyright law comes with the distinction between a game’s code and the creative end result produced by it. A company might take a specific portion of someone’s A.I. code and use it in a game that looks and plays nothing like the original. Or else, a developer might copy the same patterns of A.I. as closely as possible but write their own unique code to do it. Might these be areas of conflict unique to video games, for which U.S. copyright law might need to be modernized?

“It’s a great question, and it’s definitely a great policy-level question, but you have to consider the complexity of the issue,” Boyd said. “You can’t make special rules for one artistic medium. Think of the First Amendment. It protects movies just like it protects games and books. We have to have copyright law that does the same thing. If you start doing specialized carveouts, it’s a dangerous path. You can do just as much harm as you can good.”

In practice, then, defending one’s creative work and determining what constitutes infringement and what doesn’t is a slow and murky process that must bring substantial similarity to bear on both the creative product and the technical code in which it’s fixed.

“We usually just look at the genre, the mechanics of the game, and then we deep dive on how closely they’ve copied the game,” Cho said. “There are quantitative ways to see what percentage of our game they’ve copied, and if it’s over a certain percent we’ll take legal action. Having those figures really helps our case.”

An Ally of Obsolescence

Many developers and publishers have realized there are alternate ways to dealing with copycat games. “I have this conversation with my clients literally everyday: what is the most worthwhile use of your time and money?” Boyd said. “You could spend your energy and resources on a lawsuit overseas or just focus on developing something even better.”

“A great example is what we were seeing with black market virtual property right at the turn of the century. It was a tremendous problem right at the beginning, then everyone realized what we were seeing was actually a market force. If game designers could incorporate that force into their work from the beginning, and tap into the market themselves, it would be much less of an issue. Now the free-to-play model with virtual item sales is the norm. Even downloadable content is a version of downloadable property that we tap into, that we didn’t used to tap into.”

Another way of considering copycat games is as a natural sign that it’s time to push forward into new territory. “Emotionally it bothers us [when we see copycats] but we feel like our best defense is to continue to be innovative,” Ben Liu, COO of Pocket Gems, said.

“You have to think about where some of the imitators are coming from. When we launch a game we have several months of lead time, so when an imitator launches they’re often several months behind already. Our product will already have evolved from where their product is starting from.”

Booyah has also been proactive in trying to either break new ground with each new project, or to form business partnerships that will give them a natural advantage in the marketplace. “On mobile we have a lot of patents for specific mechanisms in location-based gaming and virtual items, and we definitely try to protect those,” Cho said.

“One thing that helped us protect ourselves with DJ City was that we had a lot of direct deals with specific artists and music labels. We had a lot of good music and a lot of our competitors didn’t and I think that’s what made the game really stand out initially.”

Likewise, the technical possibilities in mobile and social games are quickly expanding, which will begin to make possible the kinds of genre and budget differentiation that helps thin the ranks fast-followers on consoles. “After seeing what’s going to be possible on Flash with the Unreal Engine, I’m hoping more and more quality developers will be drawn to developing on browsers now,” Harbin said.

“If you want to add defensibility, you just have to do things that are harder to do. Doing something on the Unreal Engine, you’re moving into a different area where you’ve got to differentiate yourself in a lot of areas — content, story, graphics, how good is your art department, how good are your writers.”

If this approach is followed through for a few years, the low-end copycats will simply be priced out of the competition. “As the quality of the games goes up it will be a less viable for a lot of competitors to just clone a game,” Cho said. “You’re going to have to be even more unique, differentiated, and triple-A quality to be successful. In the early days it was viable to just clone and reskin, but I think it will be a lot harder to do that in the coming years.”

“All Those Things Are Going to Get Better”

Even in embracing new technologies and investing in more lavish productions, mobile and social games developers will inevitably come to a point reached by all media, wherein repeating what others have done becomes unavoidable. There are only so many times a creative form can experience revolutionary paradigm shifts. In the time between, there is often a negotiated peace between what works and what differentiating improvements can be added to it.

“I make no bones about the fact that War Commander was heavily influenced by Command & Conquer: Red Alert and Red Alert 2, which were on the PC 13 years ago,” Harbin said. “I wanted to play Command & Conquer in a persistent real-time environment — more of an MMO style where there’s a 24/7 world that’s always alive and breathing, there are always battles going on, and you’re fighting for territory.”

“Those experiences were no longer available to people, but I always wanted to improve upon them. But the first big no-no in my book is to copy a game or take a big degree of influence from a game that’s currently available on a platform that you’re going to deliver to. That’s what’s hurtful to the industry.”

For most developers, the task of creating new games lies in the murk between inspiration and mimicry, relying on a consideration of what’s already been done, what’s available currently, and what opportunities emerge from that search that most excite the individual.

“We have a combination of people who try to make games based on what they would enjoy playing,” Liu said. “We want to create things that are customized and right for mobile, but also universally accessible and fun for all kinds of different people. Our ideas come from looking through all of those areas and then finding something that we’d most want to play ourselves within them.”

It’s unlikely that copycatting will ever go away, but it seems that a balanced approach that favors focusing on new creative opportunities while selectively choosing which cases are most worth the energy and expense of litigating will be the most fruitful. “All those things are going to get better,” Boyd said.

“There’s enough money in social and mobile and there’s enough power in the platforms as they mature that people will make better games. People won’t just be making fancy addiction mechanisms masquerading as games. Long-term cloning and copycatting disincentivized quality, which is the shared goal of most game developers and people who play games. ”

And in truth, it’s in everyone’s long-term benefit to avoid the alternative possibility where copycatting becomes so ubiquitous that there is no money left for creative risks and industry expansion. At this point the industry will become self-consuming and risk the same terrible contraction brought about by short-term profiteering.

Becoming fixated on punishing imitators can be a resource-draining preoccupation that keeps developers from moving forward. In most cases, we’re remembered more for the things we make than the rivals we defeat. So long as the only thing the copycat sees is your back as your breaking new ground, rest assured you’re winning. It’s hard and scary work, but so too the prospect of turning around and mustering for a fight. （source:gamasutra）