Nickelodeon All-Star Brawl has just been announced, and the internet has been quick to point out how similar the gameplay looks to Super Smash Brothers. Being developed by Ludosity and Fair Play Labs, and published by GameMill Entertainment, the Announcement Trailer shows striking similarities to the combat system and stage layout. Within video, one can see what appears to be the classic Smash Brothers “Battlefield” stage layout with one larger base platform with three smaller platforms above in a triangular pattern. The layout was so popular in Smash Brothers that players were given the option to convert any stage to the Battlefield layout in the most recent Smash Brothers Ultimate.
As you may have noticed above, the developers and publishers are not Nintendo. So how do they expect to get away with such an unabashed copy of a Super Smash Brothers games? The short answer is copying the right things. While copying the expression of ideas can get you a legitimate cease and desist, game mechanics are not protected under copyright or even patent law.
Copyright protects original works of authorship, including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. One who owns a copyright can prevent others from creating copies, creating derivative works, distributing copies, public display, and public performance of the copyrighted work. A derivative work is a work based on or derived from one or more already existing works. So how does Nickelodeon get away with making a game so obviously based on Super Smash Brothers? Well turns out courts have concluded the mechanics of a game, the rules, and systems under which the game operates, are not considered literary, dramatic, musical, or artistic.
DaVinci Editrice S.r.l vs. Ziko Games, LLC et al., a recent case out of Texas from 2016, is perhaps the best example of copying and getting away with it. DaVinci Editrice (“DaVinci”) published Bang!, a card game using Wild West themes and art design. The game gave players one of four roles along with a Wild West themed character. The roles come with their own winning conditions and the characters come with their own special abilities. On the other hand, the Chinese company, Yoka Games, along with its U.S. distributor, Ziko Games, LLC (“Ziko”), developed Legend of the Three Kingdoms, a card game using ancient Chinese themes and art design. The game gave players one of four roles along with an ancient China themed character. The roles come with their own winning conditions and the characters come with their own special abilities. As it turns out the roles were an exact match with striking similarities in the abilities.
DaVinci sued Ziko for copyright infringement, but they ultimately lost because copyright law protects the expression of original ideas, but it does not protect ideas themselves or functional elements such as procedures, processes, systems, or methods of operation. That includes game mechanics and rules.
This is why you see so many successful mobile games get copycats overnight, usually with a completely different theme applied. The method is proven, and its unprotected. Riding on the coattails of success is a solid plan for making money and changing up the art and themes increases the chance of reaching new customers who maybe are more interested gardening over candy or zombies over aliens.
Video games have differences from card or board games, though, which present unique ways infringement may occur. Code itself is copyrightable, so while the mechanics might be free from protection, conceivably the code used to write the mechanics of a videogame could be copyrighted and therefore infringed on. Another question that hasn’t been fully answered yet is how close is too close with art assets. Rather than a reskin, “clones” have been popping up too, where the game can be copied almost verbatim or with questionably minimal differences in story or art design. Such cases would be decided on a fact-based inquiry into whether a copyrighted work was infringed. Courts will look at things like whether there is a substantial similarity between the two works and whether the defendant had access to the original before creating its new work. More likely, however, many of these cases will settle out of court without the court’s input to help define the contours of what is protectible.