Atari demands takedown from stores of TxK, a spiritual successor to popular 80s game Tempest - find out why.
While a new DMCA Notice against another one of Jim Sterling's videos shows that more indie developers need to read my blog, what caught my attention this week was the conflict that arose between Atari and Jeff Minter (Llamasoft studio), developer of a game called TxK.
In a letter from their lawyers in June 2014, Atari claimed that TxK infringed copyright owned by Atari in two of their games: Tempest (released 1981) and Tempest 2000 (released 1994 – which Minter himself actually worked on – more on this later). This letter threatened formal legal action against Minter unless he, amongst other things, removed TxK from the PlayStation store, promised not to create any Tempest-like games in the future (including any ports), and agreed to pay Atari damages (unspecified amount) for copyright infringement.
How much of the above has already occurred I am not sure of, but Minter has already stated on his website that he cannot afford a lawsuit, so it's likely that these demands will largely be met.
So, those are the facts - let's get to some legal analysis!
What's Being Infringed (allegedly)?
Well, there's a couple of things, which the letter does a good job of setting out quite clearly (see the numbered bullets starting on page 6). Roughly, these are:
So those are the allegations, but before we get to considering whether or not there's any merit to these, let's take a super quick and general look at exactly what UK copyright is.
What is Copyright? - Simply put, copyright is a legal right given to the creator of a piece of work that allows them to control what is (and importantly, what is not) done with their work.
Do you have to do anything to get this? – No; Copyright arises automatically the moment you put pen to paper, and there's no need for registration.
What can be copyrighted? - To name a few, copyright applies to literary, dramatic, musical and artistic pieces of work, as well as recordings and film, and generally lasts for 70 years after the creator's death.
It's important to appreciate though that you only own the copyright in that specific thing you create – not the idea behind it. By this I mean you could create a game about rescuing a princess from a tower, and you'd own the copyright in that game you made. You don't however have copyright over the game's very concept. Someone else could come along and make another game about rescuing princesses from towers, and so long as they didn't copy any of your assets (artwork, music etc) this is totally acceptable.
Who owns the copyright? - Generally, the creator of the work, unless they are employed or commissioned, in which case it will likely go to the employer (depending on contract terms). In collaborative works such as video games this can get quite complicated since different people can work on different elements (artwork, code, UI design, sound, script etc). That's why it's important to set something out in writing (even if you're just a couple of friends working on a bedroom project together) setting out clearly who owns the IP rights in whatever you make.
What is Copyright Infringement?
Some cases of copyright infringement are much easier to spot than others. For example, if you see someone selling pirated copies of your video game, that's infringement. But things become more difficult when someone else has created something 'inspired' by your work (think of the recent 'Blurred Lines' Pharrell/Gaye case).
So how similar does a game have to be to yours in order for this to be infringement?
The first key question you have to ask is whether this game copies all, or a substantial part of, your game.
But "substantial" doesn't just refer to the quantity of material copied - infringement could occur when someone copies a large volume of unimportant assets, or where they copy only a few, but significant, ones.
In Atari's letter there are a lot of references to the "look and feel" of TxK being very similar to that of the Tempest Games. However, this in itself is unlikely to garner much favour with the courts. It's what underlies this similar "look and feel" that will be important.
What is more convincing though is Atari's laundry list of specific things that are incredibly similar in terms of art etc between the games. This includes:
Now, each of these things on their own isn't particularly significant - i.e. having a certain shaped claw that changes colour during a game isn't particularly damming. However, taken together, they paint a picture where it's actually harder to identify their differences than to identify their similarities. TxK shares so many things in common with the Tempest games, even down to incredibly minor details such as the contrast of the claw's tip in relation to the rest of the screen, that it would be very difficult to argue that TxK didn't have the same 'substantial parts' as the Tempest games.
And even though TxK added graphical improvements and new content, tracks and so on, this doesn't detract from the fact that the majority of the features that made the Tempest games what they were also appear in TxK. You can't escape infringement by copying a game and then simply adding more content.
2. Proving This
But having the same "substantial parts" and copying the "substantial parts" are two very different things; the next challenge is to prove that, as the name suggests, this other developer physically copied your work – it won't be infringement if someone has never seen your work and just so happens to produce something very similar.
For example, if I sit 100 people down in a room and ask them to draw me a picture of a knight riding a dragon, if these people go away and by some miracle two of them produce exactly the same image, seeing as they didn't copy one another, there's no infringement.
So how would you go about proving copying? Courts have set out some helpful questions that would be considered when it came to evaluating whether or not there was actual copying:
This is normally quite a difficult thing to prove since the only people who will know for certain whether or not copying occurred are the people accused of doing the copying! So the courts have to listen to all of the facts from both sides and make a judgement call as to whether or not in their opinion copying actually occurred.
That said though, Atari might find proving this easier than normal, seeing as Minter himself was hired to work on the production of Tempest 2000. This means he will have had access to all of the different components of the original Tempest game - artwork, source code, knowhow, design etc.
Obviously, this is a big problem for Minter; when you have had (and still have?) access to the key components of the work you are claimed to have copied, it becomes hard to argue that you just so happened to create something so similar without using these (either intentionally or not).
As a result, it's likely Atari could build a pretty strong case that Minter had access to, and physically copied, the source assets of the original Tempest games.
Minter's Admissions of Similarity (a brief aside)
While Atari's letter states that "Mr Minter himself has openly attested to the fact that TxK is a copy of the Tempest Games," from the evidence they give I don't see any such admission. Minter only stated that he would "base it [TxK] on the essence of the original T2K [Tempest 2000]" and make it a "modern extrapolation of one of the best shooters ever made." So while these aren't admissions of copying as Atari claim, they are admissions that Minter wanted to create in effect a spiritual successor to the Tempest games. This is just another strand of the case that could be made against Minter to show that he was trying to make TxK as similar to the Tempest games as possible.
While a good lawyer can never guarantee with 100% certainty what a court would decide, this case seems to me a fairly open-and-closed example of copyright infringement. The similarities between the games are striking, down to some very minor details, and with Minter having had access to the original Tempest assets (when designing Tempest 2000 and potentially when creating TxK?) there is a strong case that some of these were used when creating TxK.
And while I have a degree of sympathy with Minter (it sounds like he had a good relationship with Atari for a long time, and was trying to work something out behind the scenes in order to make TxK legitimate – which simply fell through at the end), the law is the law.
What makes this case particularly interesting though is just how emotionally charged the internet discussions are and how many people instantly side with Minter, a respected veteran developer of some very classic games, while accusing the 'new' Atari (who let's face it, don't have much favour in the gaming industry today) of IP bullying.
So for a moment let's take Atari and Minter out of the picture, and replace them with parties A and B respectively - both completely unknown entities, neither with any public favour – just 2 random developers. If emotion was to be kept completely out of it, and these facts were presented to you, would you not be siding with A? They created a game, which someone then came along and made a very similar copy of. Simply because many people out there don't have much respect for Atari any more doesn't mean Atari aren't entitled to the legal rights to protect their games.
The kicker is that there are plenty of ways TxK could have been produced legitimately – Atari could have published it, or licensed or sold the relevant IP to Minter. And if Atari decide they don't want to do any of these, then that's the end of it – no spiritual successor I'm afraid. Developers can't simply say well, we couldn't work out a deal, so we just went ahead with it anyway. Well, they can, but then this happens…
It's a shame this situation arose and it doesn't leave anyone feeling happy. This is why it's key for developers to spend a little time trying to understand some very basic IP law (particularly copyright), so they can:
(i) protect their own games, and
(ii) know what they can't do with someone else's IP.
So, please do pass this article on to anyone you know it might help. Who knows, it may spare them receiving a letter from Atari in the future.
Header Photo: (c) owned by Square Enix - thanks for making Vivi so awesome!