Noah Howard
Video games exist in the bizarre liminal space between art and software. The incredible explosion of this relatively new medium has created unique creative modes and norms that the creators of modern copyright law likely did not imagine.[1] Arguably, the creative core of video games is their mechanics, the means by which player and game interact with each other. Yet game mechanics, unlike the creative labor of other artistic mediums, have consistently been considered uncopyrightable.[2] Though some might assume that this would lead to a stagnant industry full of creators unwilling to take unprotectable creative risks, the reality is a fascinating landscape that is full of as much innovative iterations as blatant copying.
In some areas, the fact that game mechanics are beyond the protection of copyright can undoubtedly lead to painful results. The mobile game market is the best example; app storefronts are full of blatant knock-offs of hits like Candy Crush and Among Us.[3] In one of the few cases in which the creators of a mobile game sued the creators of a copy that used identical mechanics (but swapped out the art), the court struggled to articulate a theory of liability while staying true to the principle that mechanics could not themselves be copyrighted.[4] These types of violations strike at the moral and economic heart of copyright law justifications.[5]
Yet the fact that game mechanics do not have copyright protection has also led to a culture of shared innovation that has enriched the gaming landscape. From a technical perspective, the shareability of mechanics has allowed games to grow together. The Legend of Zelda: Ocarina of Time provides an excellent example. With the advent of 3D environments in the late 1990s, developers struggled to create a mechanical system that could help orient players to their surroundings and allow them to accurately navigate this new axis. Ocarina of Time had an elegant solution, a lock-on system that focused the camera on a single point while still allowing the character to move freely. The system was immediately lifted from Ocarina of Time into dozens of other games and it is still used today. The system broke down a major barrier towards creating immersive 3D worlds.[6] Had the lock-on system been copyrighted, that industry-wide progress may not have occurred.
From an artistic perspective, mechanical iteration has sparked entirely new genres based around shared languages of interaction. This is especially true in the case of From Software’s influential Souls games. Dark Souls and its sequels and prequel share a common mechanical core—slow and deliberate melee combat, a stamina meter, currency that is dropped upon death, and brutal difficulty—that creates an intensely powerful experience. Seemingly insurmountable challenges at first invoke Sisyphean hopelessness, but when eventually conquered, create a feeling of triumph similar to reaching the top of an impossibly high mountain.
Dark Souls has inspired a massive subgenre of video games colloquially called “Soulslikes” that imitates these mechanics. These games typically copy most of the aforementioned mechanical signatures, often imitating even the mechanical minutiae of the Souls series. And yet, it is hard to argue that anybody is worse off. Fans of From Software’s games have been supplied dozens of brilliant titles that scratch the same itch, and From Software has managed to stay comfortably on top of its competition with its impeccable design and iterations on its classic formula. As opposed to being crowded out of their artistic territory, From Software’s games have exploded in popularity; their latest game, Elden Ring, sold 16.6 million copies in under six months.[7]
Imitation has become such a cultural norm within game development that attempts to protect mechanical IP can be met with backlash. Though game mechanics cannot be copyrighted, they can occasionally be protected by patent law. When Warner Bros. patented Middle Earth: Shadow of Mordor’s innovative “Nemesis system,” they were heavily criticized by other developers.[8] Some of the criticism centered on Warner Bros.’ perceived hypocrisy. While Shadow of Mordor erected legal walls around its greatest achievement, it simultaneously borrowed heavily from the Batman: Arkham games’ brilliant yet unprotected combat system.[9]
As a result, video games serve as a fascinating case study for what can happen to artistic innovation without complete copyright protection. Though developers are still barred from copying each other’s code, art, writing, etc., they are free to riff on each other’s mechanics like a multi-billion-dollar musicians’ coop. The result, arguably, has been good for everyone. The creative tools available to developers are limitless, solved technical problems that need not be retread, those who originate ideas can still reap rewards, and game aficionados benefit from both a variety of choices and extensive subgenres of games with mechanics they already enjoy.
[1] The Copyright Law of 1976, which serves as the foundation for modern copyright law, predated even the primitive Atari 2600 home game console, Copyright Law of the United States (Title 17), U.S. Copyright Office, https://www.copyright.gov/title17/ [https://perma.cc/KL56-HC8W] [https://web.archive.org/web/20221026023137/https://www.copyright.gov/title17/] (last visited Oct. 22, 2022).
[2] Games Factsheet. U.S. Copyright Office, https://web.archive.org/web/20161122174519/http://www.copyright.gov/fls/fl108.pdf [https://perma.cc/F5MR-EC4J] (last visited Oct. 22, 2022).
[3] See, e.g. Red Imposter (ABI Global LTD. 2020) https://play.google.com/store/apps/details?id=com.yolostudio.theimpostor [https://perma.cc/H64T-H42R] [https://web.archive.org/web/20221022200426/https:/play.google.com/store/apps/details?id=com.yolostudio.theimpostor]; see, e.g. Candy Three Match Games Puzzle (Tiny Tactics Games 2019) https://play.google.com/store/apps/details?id=com.TinyTactics.CandyMatchThree [https://perma.cc/9HN4-D2D5] [https://web.archive.org/web/20221026023527/https://play.google.com/store/apps/details?id=com.TinyTactics.CandyMatchThree].
[4] The district court was ultimately able to pin liability on the premise that, though the mechanics could not be copyrighted, the “object hierarchy” of the different game elements were sufficiently similar to plausibly invoke copyright protection, Spry Fox, LLC v. LOLApps, Inc., No. C12-147RAJ, 2012 U.S. Dist. LEXIS 153863, at *17 (W.D. Wash. Sep. 18, 2012). Why the hierarchy between game elements is not a part of the game rules/mechanics is not well-defined.
[5] Copyright Basics, Univ. of Minn. Libr., https://www.lib.umn.edu/services/copyright/basics#:~:text=Copyright%20laws%20work%20to%20control,more%20creators%20make%20more%20works [https://perma.cc/AE8E-Q2J4] [https://web.archive.org/web/20221022200342/https:/www.lib.umn.edu/services/copyright/basics] (last accessed Oct. 23, 2022).
[6] Jeremy Ray, Ocarina of Time’s Inescapable Influence on Modern Gaming, Fandom (Nov. 22, 2018), https://www.fandom.com/articles/ocarina-of-time-influence-gaming [https://perma.cc/2YYS-8ZPM] [https://web.archive.org/web/20221022200258/https:/www.fandom.com/articles/ocarina-of-time-influence-gaming]; Michelle Mannering, Ocarina of Time: 20 Years On, Nintendo (Mar. 11, 2018), https://www.nintendo.destructoid.com/ocarina-of-time-anniversary/ [https://perma.cc/578R-EGFY] [https://web.archive.org/web/20221022200204/https:/www.nintendo.destructoid.com/ocarina-of-time-anniversary/].
[7] Rich Stanton, Elden Ring has Sold Just Under 17 Million Copies in Six Months, PC Gamer (Aug. 18, 2022), https://www.pcgamer.com/elden-rings-sold-just-under-17-million-copies-in-six-months/ [https://perma.cc/Y3TK-8VS8] [https://web.archive.org/web/20221022200111/https:/www.pcgamer.com/elden-rings-sold-just-under-17-million-copies-in-six-months/].
[8] Andy Robinson, Warner Bros. Receives Criticism for Patenting Shadow of Mordor’s Nemesis System, VGC (Feb. 6, 2021), https://www.videogameschronicle.com/news/warner-bros-receives-criticism-for-patenting-shadow-of-mordors-nemesis-system/ [https://perma.cc/H6S7-XXCX] [https://web.archive.org/web/20221022195748/https:/www.videogameschronicle.com/news/warner-bros-receives-criticism-for-patenting-shadow-of-mordors-nemesis-system/]; Evgeny Obdekov, “This is Really Gross”: WB Games’ Patenting Nemesis System Receives Huge Backlash Online, Game World Observer (Aug. 2, 2021), https://gameworldobserver.com/2021/02/08/wb-games-patenting-nemesis-system-receives-huge-backlash-online [https://perma.cc/RC9Y-E48F] [https://web.archive.org/web/20221022195638/https:/gameworldobserver.com/2021/02/08/wb-games-patenting-nemesis-system-receives-huge-backlash-online].
[9] Will Usher, How Middle-Earth: Shadow of War Was Influenced by the Arkham Games, Cinemablend (Oc.t 9 2017), https://www.cinemablend.com/games/1711730/how-middle-earth-shadow-of-war-was-influenced-by-the-arkham-games [https://perma.cc/64Z9-AA3D] [https://web.archive.org/web/20221022195459/https:/www.cinemablend.com/games/1711730/how-middle-earth-shadow-of-war-was-influenced-by-the-arkham-games].