The Mojäng – Zenimax thing

Apparently the first step of Zenimax’ lawsuit is concluded. The trial remains and appeals do not seem unlikely, so it may be a while still.

Now, I am going to draw upon some experiences of my professional life in this post so maybe it is best to make it clear that this post, like all others on this blog, are my opinions alone and are not to be attributed to any of my employers, past or present.

In “the Darkness”, a little less than halfway through the game, Jackie runs into a WW2 era cannon. It is a rail-mounted monstrosity, somewhere between a train and a building – but more importantly, at one point the train had the number “999” stamped somewhere. This was a subtle reference to the anime “Galaxy Express 999”, but you will not find it anymore as it was removed due to copyright concerns. There is also a lot of graffitti in the game – we actually hired artists to paint this for us as just grabbing it from concrete walls around town put us in a sticky ownership position. The cool part about this is that the entire development team got to have their handles recreated as tags – though you will not find mine there as I requested that my tag have a stick figure with a halo. You know, “Saint” and all… I have some more understanding for the cutting of this (even though the figure in the tag looked nothing like the icon popularized by Simon Templar), but still. And those things are just the beginning.

Now, I do not blame the studio heads for wanting to play it safe – Intellectual Property law is apparently a minefield in entertainment in general and videogames in particular, for several reasons.

First, as a small independent studio making a global product we were at the mercy of our publishers. As far as I understand it, most similar contracts make it the developer’s sole responsibility to make sure that there is no IP infringement in the game, even if the publisher has signed off on the game and it sits on shelves around the world. A small independent studio could not handle the cost of a lawsuit concerning a game selling millions of copies.

Second, there is a general notion that since everything in a videogame more or less has to be explicitly created for the game, there is never a lack of intent. I have not been able to get this verified or denied by anyone – again, this is a subject no-one wants to touch. But unlike movies, where other trademarks might happen to be in the background, you better be sure all your designs are original in a game. This creates a warped responsibility where our artists had to design everyday objects and model fictional characters only to spend hours searching online to make sure they had not accidentally made it similar to an existing design or celebrity. It hurts narrative too, Max Barry wrote about the alienation of fiction when we are not allowed to use brands that have forced themselves into our everyday lives – this is the biggest reason why so few AAA games are set in contemporary settings.

Third, this is an issue that very few people talk about. No-one wants to be publicly involved in IP lawsuits, so nobody talks about it. All of the things we had to do for the Darkness (and later games) were not because of warnings from outside but from self-policing in fear of a reportedly massive number of copyright and patent trolls looming around every new release. Stories from publisher representatives and rumors from conventions where all we had to go by – but it was enough. We could scarcely afford to finish the game, a lawsuit would leave everyone without a job.

It is mainly because of this third reason that I appreciate that Mojäng are fighting this and they are being public about it – there needs to be a lot more light shining on these issues so we can get some real, official examples of what we can actually do. That is not to say I think either them or Zenimax are obviously in the right, but maybe if a case like this is settled in public we can be on the way to a functional industry where IP decisions are made based on facts and reason instead of fear and rumors. I think that would make the entire entertainment industry a nicer place to work in.

5 Comments so far

  1. anonymouse on October 24th, 2011

    Well at least Mojang aren’t sued or anything

  2. EddieBytes on October 24th, 2011

    This is exactly the kind of reasoning we need in the indie industry. It is unfortunate that two such great companies have to fight each other, at least the rest of the indie community can learn something valuable from this.

  3. Julia on October 24th, 2011

    Normally I hate hearing about drama, I even try not to watch the news, S it makes me angry/depressed. However, I liked that the whole copyright nonsense was made public. It said they have nothing to hide and this is how this works. I never realized was a cesspool that nonsense is, it’s kind of unrealistic. Having to spend hours and hours to be sure that something you thought up doesn’t resemble anything else would take a lot of the joy out of creating. Thank you guys, for working so hard to make us fun games. We love them.

  4. Geoffrey Gore on October 24th, 2011

    It never ceases to amaze me how companies will make such a huge deal over a picture in a video game even if it only looks slightly like what is seen in a product of their own. It means that if a company wants to make a game, they’ll end up having to spend nearly ten times as long trying to check for similar looking images as the amount of time spent actually coding the game. I truly hope that Mojang is able to make a difference in this matter through this case, because it would certainly allow for other game developers to jump in the business professionally and actually make money from it.

  5. Charles on October 25th, 2011

    You can parody a product or logo in a game though. just look at rockstar and the GTA series.

Leave a reply

Posted on Oct 19/11 by Saint and filed under General game development, Intellectual Property, Meta-blog | 5 Comments »