The Case of the Cloned Game

This is a rare moment when I get to talk about two things I’m passionate about: game design and Sherlock Holmes!

One of the oddities of game design is the confusion around what parts of a game are protected by law, and what parts aren’t.1 For many years, it has been asserted that the rules and mechanics of a game cannot be protected, but the presentation can. This is why, for example, there are probably hundreds of platforming games where the character runs to the right and uses jump as a primary means of movement and attack, but very few of them (legally) feature a character named Mario.2 Similarly, any card game can turn a card sideways to express that it can no longer be used, but only games made by Hasbro (such as Magic: The Gathering) can use the term “tap” for this action.

In reality, the line between “rules” and “presentation” isn’t that simple. There has been a long history of video game cloning. It’s happened in the tabletop RPG space as well, and made even muddier by the d20 Open Game License and a number of successful “retroclones” that emulate previous game designs to various degrees of fidelity. Further, where public domain begins and ends is even more complex. And thus we get to the Great Detective himself.

While the character of Sherlock Holmes has recently been ruled to be public domain in the United States, the presentation of him can be protected. This is why, say, BBC’s Sherlock and CBS’s Elementary are protected, but there were some interesting tensions between the two shows to start.3 But how far does that presentation go?

I present two examples for consideration: Sherlock Holmes The Card Game and I Say, Holmes! I own and have played both of these games (and, strangely, both were given to be as gifts by friends), and the similarities and differences are both interesting as an example.

The rules are quite similar between games. Each player holds a number of cards, some of which are villains. The goal is for players to push Holmes and Watson, via card plays, to arrest a villain in an opponent’s hand, while simultaneously trying to play their own villain card and “escape.” Both games use location cards, and require train and cab cards to transition between those locations. Both games score points based on villains captured/escaped. I Say, Holmes! came out later, and is a more polished set of rules — indeed, it’s the version I prefer — but it’s clear that the games have a strong similarity.

Yet, as I said above, you can’t really protect rules, right? Well, some companies are starting to challenge that, but currently that’s correct — rules are immune from copyright or patents. So I won’t dwell on that. How about the presentation?

Let’s look at the packaging first.

2015-06-21 16.53.16

Aside from rough size and proportion similarities, the games couldn’t look more different. They both adequately express the focus of the game (i.e., it’s a game about Sherlock Holmes), but there’s no way you could argue that one game could be confused for the other.

The cards themselves, however, are a little more interesting.2015-06-21 16.51.55

Despite Sherlock Holmes being bridge-sized and I Say being poker sized, the cards are more similar than not. They both have a round framing element with a silhouette of Holmes in the center, smoking a pipe.

When we flip them over…2015-06-21 16.51.43

… oh dear.

These cards both represent London. They are both location cards. They are both worth 1 point. They both have four next steps (i.e., cards you can play next on them). Two of those next steps on both cards are “Arrest” and “Clue.” And yet, the art is different. The design is (largely) different. The colors are different.

Clearly one game is evocative of the other. Some of the cards are very similar, but not identical. So is a game with similar (and legally unprotectable) rules with different packaging but similar (and yet clearly distinct) presentation based on a public domain (again, legally unprotectable) set of characters a “clone”?

To be clear, I don’t have a dog in this fight. I don’t know anyone at either company, and I have to assume that both companies have conducted themselves honorably to the best of their respective abilities — ultimately, if there’s a concern about these similarities, it’s between the two of them to decide. I point it out as a very illustrative example of how muddy these waters are. And as a designer, I am sorely conflicted on which is the “right” direction to go in.

My artistic side says that it’s important for the field of game design to grow and evolve, and that can only happen if some amount of a game’s design can be used and reworked — if Maze War was able to patent the idea of a first-person shooter, we never would have had Doom or Half-Life or Bioshock. Without the OGL license, I wouldn’t be able to make Pugmire the way I want to, using familiar mechanics as a way to evoke nostalgia and familiarity.

And yet, my pragmatic side says that novelty is sometimes the key to a game’s success. The time-warping feature of Braid was one of the elements of the game’s appeal, although the platforming elements were (I believe intentionally) derivative of the Super Mario Brothers series. Flappy Bird led to an insane number of clones, and even some game design engines offer a tutorial on how to make such a clone as a design lesson. These all likely derived because the original game offered a simple but compelling form of gameplay. Protecting that novelty can be important for artists and designers who want to use their skills to make a living.

It’s a complex situation that isn’t going to get any easier to resolve. So, when you see a game and think “what an obvious rip-off,” understand that the line between rip-off, clone, and homage is perilously thin.

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  1. I’m a citizen of the United States, so all my references to legality are US-centric, only because that’s the legal system I’m most familiar with.
  2. Digression: I’ve noticed over the years a certain “linga franca” in game design. For board games, references are usually to Chess or Monopoly. For role-playing games, it’s Dungeons & Dragons. And for video games, it’s Super Mario Brothers. At some point I should compile a list of “games every other game designer will assume you’ve played.”
  3. I have and do argue that this attempt to differentiate between the shows was likely one of the factors for making John Watson into Joan Watson.