When a Game Concept Isn’t Enough: Finding Intellectual Property In Social Games

Mob Wars on Facebook[Editor’s Note: This is a guest post by David Bailey, a partner at Kauth, Pomeroy, Peck, & Bailey LLP.]

The saga of the Facebook hit game Mafia Wars has made the issue of intellectual property obvious to any serious social game creator. But given how these laws have developed in the rest of the gaming industry, many games likely contain intellectual property. This will gradually reshape social gaming.

In 2008, Mob Wars creator David Maestri — a developer at top social gaming company SGN — left to launch the game on his own. He was sued by SGN, and settled amicably: He owns the game but SGN has some rights. Then, he sued top social gaming companies, Zynga and Playdom, for creating quite similar games called Mafia Wars and Mobsters. Those cases were settled earlier this year. Meanwhile, these companies and many others have continued building mafia role-playing games and expanding them to other platforms, like the iPhone.

Today, social game developers are increasingly focusing on strategies to prevent imitators from luring away potential users.

A mixed IP history

Unfortunately, games inspired by the successes of others have plagued the entire industry since its inception and the courts have rarely intervened. This inability to prevent imitation, however, has led mainstream game developers to devise a number of successful strategies for preventing imitators from gaining a significant user base. More “traditional” strategies pioneered by console gaming developers are based upon copyright and trademark law, and are equally applicable to social games. Newer strategies are also emerging in the Massively Multiplayer Online (MMO) and social gaming industries that leverage innovation in underlying technical infrastructure as the basis for seeking patent protection for game features.

A great deal of experience in preserving the distinctiveness of a title was obtained in the arcade and console gaming space during the 80s and early 90s. Developers of successful games initially attempted to stop imitators by claiming violation of copyrights in the successful game concepts. However, the courts were persuaded that no copyrights existed in the game concepts under the scenes a faire doctrine — it prevents copyright in incidents, characters, or settings that are common in the treatment of a given topic. These rulings and subsequent affirmation by the courts have green-lighted imitation in a succession of titles including Asteroids, Street Fighter II, and Golden Tee. Even in the most egregious cases, where an imitator specifically set out to create a game so similar that users could switch without difficulty, the courts were willing to permit the imitation. Only the copying of distinct characters from a game was considered sufficient for the courts to intercede.

Starting a franchise

Console and arcade game developers frustrated in their attempts to prevent competition from imitators turned to releasing new titles tied to built-in audiences in hopes of rising above the noise and achieving commercial success. The majority of top-selling games on almost every console gaming platform are part of a series or franchise and many also include a tie-in to a television show, movie, comic book, sports league, or celebrities. The current notable exception is the Wii, where the platform itself has been disruptive. Accordingly, Wii game developers, much like social game developers, are enjoying a window in which success can be achieved via an innovative game concept. The prediction can be made, however, that as the market for Wii games and social games becomes increasingly crowded franchises and tie-ins will play a larger role in game success.

Turning a successful game into a franchise involves a title becoming recognizable enough to drive engagement with future titles. Consequently, branding is an important component of establishing a franchise. Trademark law grants powerful rights in brands that are distinctive. A game with a distinctive name or characters more readily lends itself to becoming a franchise, because trademark rights in the name or characters can be used to keep others from offering games using a similar name or characters. The ability to protect the distinctiveness of the title is ultimately more likely to result in a user playing the next title in a series instead of being lured away by a title with a similar sounding name, and look and feel.