Clone Console

A video game clone is either a video game or a video game console very similar to, or heavily inspired by, a previous popular game or console. Clones are typically made to take financial advantage of the popularity of the cloned game or system, but clones may also result from earnest attempts to create homages or expand on game mechanics from the original game. An additional motivation unique to the medium of games as software with limited compatibility, is the desire to port a simulacrum of a game to platforms that the original is unavailable for or unsatisfactorily implemented on.

The legality of video game clones is governed by copyright and patent law. In the 1970s, Magnavox controlled several patents to the hardware for ''Pong'', and pursued action against unlicensed ''Pong'' clones that led to court rulings in their favor, as well as legal settlements for compensation. As game production shifted to software on discs and cartridges, Atari sued Philips under copyright law, allowing them to shut down several clones of Pac-Man. By the end of the 1980s, courts had ruled in favor of a few alleged clones, and the high costs of a lawsuit meant that most disputes with alleged clones were ignored or settled through to the mid-2000s. In 2012, courts ruled against alleged clones in both ''Tetris Holding, LLC v. Xio Interactive, Inc.'' and '' Spry Fox, LLC v. Lolapps, Inc.,'' due to explicit similarities between the games' expressive elements.

Legal scholars agree that these cases establish that general game ideas, game mechanics, and stock scenes cannot be protected by copyright – only the unique expression of those ideas. However, the high cost of a lawsuit combined with the fact-specific nature of each dispute has made it difficult to predict which game developers can protect their games' look and feel from clones. Other methods like patents, trademarks, and industry regulation have played a role in shaping the prevalence of clones.

Overview

Cloning a game in digital marketplaces is common. It is hard to prevent and easy to compete with existing games. Developers can copyright the graphics, title, story, and characters, but have more difficulty protecting software design and game mechanics. A patent for the mechanics is possible but expensive and time-consuming. Popular game concepts often lead to that concept becoming incorporated or expanded upon by other developers. In other cases, games may be developed with clear influence from one or more earlier games. Such derivations are not always considered clones though the term may be used to make a comparison between games. As copyright law does not protect game mechanics, the reuse of such ideas is generally considered acceptable. For example, ''Grand Theft Auto III'' spurred a number of games that have been called GTA clones but which are not direct copies of assets or mechanical ideas. In these cases, games that are "clones" of another are generally not implied to have committed any intellectual property infractions, and otherwise considered legally acceptable practices, although calling such games clones is generally considered derogatory.

True video game clones occur when competitors, on seeing the success of a video game title, attempt to compete by creating a near-copy of the existing game with similar assets and gameplay with little additional innovation; developer Jenova Chen compared the nature of these clones similar to plagiarism in which there is little attempt to distinguish the new work from the original. Video game clones are seen by those developing them as low risk; knowing that a game or genre is popular, developing a clone of that game would appear to be a safe and quick investment, in contrast with developing a new title with unknown sales potential. Further, cloning of games from smaller developers, particularly indie developers, is more frequent as these small teams lack the financial resources to pursue legal recourse. Instead, these teams often appeal to social influence to try to have the cloner take corrective actions.

History

Hardware cloning (1970s–2000s)

Cloning of video games came early in the arcade video game industry shortly after the release of ''Pong'' by Atari in 1972. Its success led to numerous companies buying a copy of the arcade machine to try to make their own versions. Atari's Nolan Bushnell called these vendors "jackals", but took no legal action and instead focused on making new games to try to outpace them. Bushnell also maintained contractual agreements with Bally Manufacturing and Midway Manufacturing; in the case of Midway, Atari providing Midway with a licensed ''Pong'' design that Midway released as ''Winner''.

One of those companies that had copied ''Pong'' was Allied Leisure, which had released its ''Paddle Battle'' arcade game in early 1973. When the market shifted from the two-player to four-player table tennis versions in mid-1973, Allied Leisure produced two new arcade games, ''Tennis Tourney'' and ''Ric-o-chet'', both which Midway stated caused demand for the two-player ''Winner'' to drop dramatically. To stay competitive, Midway acquired one of Allied's games to compare the printed circuit board to that from ''Winner'' as to determine what was the new components for making it a four-player game, and added that to ''Winner'' board, and released as ''Winner IV''. Allied Leisure filed suit against Midway claiming copyright infringement of using its printed circuit board design in making ''Winner IV'' and unfair competition, but the judge failed to agree to a preliminary injunction, ruling that while a drawing of the printed circuit board may have copyright protection, the physical board itself would not and instead would be covered by patents, which were not involved in this case. The case was settled out of court in 1974 for undisclosed terms, believed due to factors relating to a short downturn in the market, as David Braun, the CEO of Allied Leisure had said in 1974 that "th video game is yesterday's newspaper." The settlement was also likely due to pressure from the patent issues that had arisen around the home versions of ''Pong'' in the first generation of consoles that were occurring simultaneously.

The base ideas of a home video game console were developed by Ralph H. Baer while working at Sanders Associates, where in 1966 he began work on what ultimately became his "Brown Box" prototype. After securing approval of a proposal for his idea from his superiors, Baer worked with Sanders engineers Bill Harrison and Bill Rusch to execute its design while keeping it within a low cost target. By 1967, the optimized design was ready to be shopped to other manufacturers as Sanders was not in that market area. To protect the idea, Sanders applied for and received three patents in Baer's, Harrison's, and Rusch's names, covering their "television gaming apparatus"; this included the 1974 reissued U.S. Patent RE28,507 for a "television gaming apparatus", U.S. Patent 3,659,285 for a "television gaming apparatus and method", and U.S. Patent 3,728,480 for a "television gaming and training apparatus". Sanders eventually licensed the technology and the patents to Magnavox, which used it to make the Magnavox Odyssey, released in 1972. In 1974, Magnavox sued several companies on patent infringement for creating and distributing table-tennis arcade games including Atari and Midway. Atari settled in 1976 and agreed to pay Magnavox for a perpetual license to the three patents and other technology sharing agreements, allowing them to continue to release their home version of ''Pong''. This case was ultimately decided in Magnavox's favor against the remaining defendants in early 1977.

However, just as with the arcade version, the home version of ''Pong'' drew a number of third-party hardware manufacturers to make ''Pong'' clones on the market, to a point where it was estimated that Atari's ''Pong'' console represented only about a third of sales of home ''Pong'' consoles. Magnavox continued to pursue action against these ''Pong'' clones using the three patents, estimated to have won over in damages from suits and settlements through the lifetime of the patents. However, threats of lawsuits did not prevent more clones of the home console systems from being built, as these dedicated consoles were relatively risk free and easy to manufacture. This led to a flooded dedicated-game console market, and creating the industry's first market crash in 1977.

File:TeleGames-Atari-Pong.png, The original Atari ''Pong'' home console, labeled with Sears' "Tele-games" brand
File:Турнир-Game-Console.jpg, The Russian "Турнир" ("Tournament") ''Pong'' clone
File:Magnavox-Odyssey-Console-Set.jpg, The Magnavox Odyssey
File:Inter Electrónica S. A. - Overkal.jpg, The Overkal, made by Inter Electrónica S.A. in 1974, a clone of the Magnavox Odyssey for the Spanish market

Eventually, home consoles switched from built-in games to programmable microprocessor-based systems that operated from software stored in game cartridges within the second generation, making it more difficult to clone at the hardware level. However, off-brand manufacturers attempted to make bootleg copies of these consoles that has a similar form as the known console, but typically could only play built in games frequently on a liquid-crystal display (LCD). Other bootleg consoles would take the workings of older systems and repackage them in a newer housing that appears like the known consoles capable of playing the games from the original system. The latter was particularly true of consoles that attempted to clone the Nintendo Entertainment System (known as the Famicom system in Japan), which was not available in some countries in the Eastern European and Chinese regions, leading manufacturers within those nations to make numerous bootleg versions, knowing that it would be near-impossible for Nintendo to seek legal action against them.

File:Nintendo-DS-Fat-Blue.jpg, The Nintendo DS
File:Neo Double Games.JPG, Neo Double Games, mimicking the design of the DS, but games are played on a segmented LCD screen
File:Nintendo-Super-Famicom-Set-FL.jpg, The Nintendo Super Famicom console
File:Pegasus_console%2Bpad%2Bgame.jpg, The Pegasus, sold only in Eastern European states, was a Famicom clone though styled after the Super Famicom system

Closed consoles were not the only cloned systems. The ZX Spectrum had been released in the United Kingdom in 1982 and its low cost compared to other home computers helped give birth to the video game sector in the UK as well as Western Europe. The system could not be imported into the Eastern bloc countries, but enterprising companies found ways to clone the ZX Spectrum hardware at even lower cost. With teenagers and young adults able to afford these hardware clones, they too were able to begin developing their own games and helped to launch the video game industry within these countries.

Early copyright protection (1980s)

While hardware itself became difficult to clone, the software of games were subsequently used in unlicensed copies for other systems. Cloning of arcade video games was popular during the arcade's "golden age" in the early 1980s. Arcade games, prior to mass production, were made in limited numbers for field testing in public spaces; once news got out that a new arcade game from industry leaders like Atari was out in the open, third-party competitors would be able to scope the game and rush to make a clone of the game, either as a new arcade game or for home consoles; an occurrence which happened with ''Missile Command'' in 1980. This ultimately diluted the market for new arcade games.

An early legal question was whether video games were even eligible for intellectual property protection, as both industry and legal experts were unclear on whether copyright law applied. One such game was '' Breakout'', which inspired many games, including ''Arkanoid'', which itself inspired many other clones. When Atari decided to register its Copyright in ''Breakout'', Register of Copyrights Ralph Oman refused to register the work because it "did not contain at least a minimum amount of original pictorial or graphic authorship, or authorship in sounds". Atari challenged Oman's decision not to award the game copyright protection, and courts sided with Atari that even simple video games could become copyrightable works, as they were both fixed and original expression. Midway sued Artic for making ''Puckman,'' an alleged clone of ''Pac-Man,'' with Artic responding that video games were not "fixed in any tangible medium of expression" and thus ineligible for copyright. Courts sided with Midway that aspects of an arcade game were copyrightable, even though the images that appeared on the screen were transient. Stern Electronics, Inc. v. Kaufman similarly decided that the look and feel of a game was fixed, and thus copyrightable, despite differences in the images between different player playthroughs.
Stern Electronics, Inc. v. Kaufman
', 669 F.2d 852 (2nd Cir. 1982) Thus, it became widely established that video games were eligible for copyright protection, against potentially infringing clones.

The most widely cloned arcade games in the early 1980s included ''Space Invaders'' (1978), ''Pac-Man'' (1980) and ''Donkey Kong'' (1981), clones of which were available for various different platforms by 1983; there were more than a hundred ''Space Invaders'' clones, at least 57 ''Pac-Man'' clones, at least 37 ''Frogger'' clones, and at least seventeen ''Donkey Kong'' clones by professional and amateur coders for platforms ranging from desktop microcomputers to graphing calculators. Nintendo estimated a loss of over to ''Donkey Kong'' clones on various different platforms despite attempts at litigation to stop them; the matter was further complicated by the '' Universal City Studios, Inc. v. Nintendo Co., Ltd.'' case where Universal Studios who claimed ownership over King Kong attempted to take action against ''Donkey Kong'' and its clones, notably the Tiger Electronics handheld electronic game ''King Kong'', but the court ruled in Nintendo's favor along with ordering Tiger to pay damages to Nintendo.

''BYTE'' reported in December 1981 that at least eight clones of Atari's arcade game ''Asteroids'' existed for personal computers. The magazine stated in December 1982 that that year "few games broke new ground in either design or format ... If the public really likes an idea, it is milked for all it's worth, and numerous clones of a different color soon crowd the shelves. That is, until the public stops buying or something better comes along. Companies who believe that microcomputer games are the hula hoop of the 1980s only want to play Quick Profit". The degree of cloning was so great that in 1981, Atari warned in full-page advertisements "Piracy: This Game is Over", stating that the company "will protect its rights by vigorously enforcing tscopyrights and by taking appropriate action against unauthorized entities who reproduce or adapt substantial copies of ATARI games", like a home-computer clone. In ''Atari, Inc. v. Amusement World, Inc.'' (547 F. Supp. 222, 1982), Atari sued Amusement World claiming that its video game ''Meteors'' violated their copyright on ''Asteroids''. The court did find twenty-two similarities between the two games, but ruled against Atari's claims, citing these elements as ''scènes à faire'' for games about shooting at asteroids. This was based on a principle in copyright law known as the idea-expression distinction, that copyright does protect the idea for a game only the game's unique expression.

In 1980, Namco released ''Pac-Man'' which became a massive commercial success, leading to the development of numerous ''Pac-Man'' clones. Between October 1980 and December 1981, the ''Pac-Man'' game alone generated $150 million in sales. Philips was one of several developers who attempted to create their own maze game, resulting in '' K.C. Munchkin!'' released in 1981.'''' Atari sued Philips in Atari, Inc. v. North American Philips Consumer Electronics Corp., claiming that the game '' K.C. Munchkin!'' had illegally copied their game ''Pac-Man''.<