Creativity Without IP? Vindication and Challenges in the Video Game Industry

Washington and Lee Law Review Washington and Lee Law Review

Volume 79

Issue 4

Fall

Article 3

Fall 2022

Creativity Without IP? Vindication and Challenges in the Video Creativity Without IP? Vindication and Challenges in the Video

Game Industry Game Industry

BJ Ard

University of Wisconsin Law School

, [email protected]

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Part of the Computer Law Commons, and the Intellectual Property Law Commons

Recommended Citation Recommended Citation

BJ Ard,

Creativity Without IP? Vindication and Challenges in the Video Game Industry

, 79 Wash.

& Lee L. Rev. 1285 (2022).

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1285

Creativity Without IP? Vindication

and Challenges in the Video Game

Industry

BJ Ard

Abstract

This Article intervenes in the longstanding debate over

whether creative production is possible without exhaustive

identified “negative spaces” like comedy and tattoo art where

creativity thrives without IP, but critics dismiss these examples

as niche. The video game industry allows for fresh headway. It

is now the largest sector in entertainment—with revenues greater

than Hollywood, streaming, and music combined—yet IP does

not protect key game elements from duplication. Participants

navigate this absence using non-IP strategies like those identified

in negative-space industries: AAA developers invest in

Assistant Professor of Law, University of Wisconsin Law School and Affiliate

Fellow, Yale Law School Information Society Project. I thank Chris Bavitz,

Bruce Boyden, Michael Carrier, Jim Charne, Anuj Desai, Simon Ferrari,

James Grimmelmann, Brian Holland, Camilla Hrdy, Mark Lemley, Glynn

Lunney, Betsy Rosenblatt, Guy Rub, Chris Seaman, Mitra Sharafi, Cathay

Smith, Steph Tai, Rebecca Tushnet, Saurabh Vishnubhakat, Peter Yu, and

participants at the 2022 Harvard/Yale/Stanford Junior Faculty Forum, the

2022 AALS Emerging Voices in IP Workshop, the 2022 InGAME International

Conference, the 2021 Intellectual Property Scholars Conference (IPSC), the

Junior Law & Tech* Workshop, the 2021 Works-in-Progress in IP Colloquium

(WIPIP), the Yale Law School Information Society Project Technology Law

Speaker Series, and the University of Wisconsin Faculty Workshop for

invaluable feedback on this Article. Thanks also go out to Luke Dremel, Robert

Ling, David Stilin, and Alexander Zahn for excellent research assistance.

Support for this research was provided by the Office of the Vice Chancellor for

Research and Graduate Education at the University of Wisconsin-Madison

with funding from the Wisconsin Alumni Research Foundation.

1286 79 WASH. & LEE L. REV. 1285 (2022)

copy-resistant features while indie game developers rely on

community norms. The answer to whether creative production is

possible within IP’s negative space even in a capital-intensive

industry is thus a decisive yes.

Studying this industry also compels us to go beyond

surface-level questions of whether creative production is possible

and to grapple with how the configuration of IP and non-IP

protections shapes what is produced and how this configuration

favors some creators over others. The industry likewise pushes us

to recognize that the stability of these regimes is contingent on

broader features of technology, the economy, and society at large.

In fact, the industry has come full circle from a sector where

copying plagued the industry, to one where it became a non-issue,

to one where it has reemerged as a problem in mobile gaming.

The video game industry is also crucial for study because it

embodies the state of creative production in the information age.

Scholarship has long treated legacy industries like Hollywood

and music as paradigmatic without attending to the complex

realities of modern creative production and the importance of

going beyond IP to understand how these industries work. It is

time we moved past the conceptual divide between “full IP” and

negative spaces to interrogate the overlapping but partial legal

protections across both sides of the line.

Table of Contents

NTRODUCTION ................................................................ 1288

I. S

TATE OF THE INDUSTRY ....................................... 1298

A. Early Clones, Low Quality, and

Market Crashes ............................................... 1298

B. Hitting Reset ................................................... 1304

C. Contemporary Sectors ..................................... 1308

1. AAA Productions ....................................... 1309

2. Indie Games ............................................... 1313

II. L

IMITS OF COPYRIGHT FOR GAME DESIGN ............ 1317

A. Copyright Coverage ........................................ 1318

B. Character Copyright ....................................... 1319

C. Idea-Expression Dichotomy ............................ 1320

D. Systems-Methods Exclusion ........................... 1321

1. Scope of the Exclusion ............................... 1322

CREATIVITY WITHOUT IP? 1287

2. The Tetris Decision .................................... 1324

E. Scènes à Faire ................................................. 1328

F. Fair Use ........................................................... 1329

III. P

ROTECTION BEYOND COPYRIGHT ........................ 1331

A. Gameplay Patents ........................................... 1331

1. Doctrinal Barriers ..................................... 1333

2. Practical Concerns..................................... 1334

B. Franchise Rights ............................................. 1335

1. Trademark ................................................. 1335

2. Trade Dress ............................................... 1336

IV. C

OMPETING WITHOUT IP ....................................... 1338

A. Adventures in Negative Space ........................ 1341

1. Copy-Resistant Markets ........................... 1343

2. Norm Enforcement .................................... 1345

3. Non-Pecuniary Motivations ...................... 1348

B. AAA Games ..................................................... 1349

1. Copy Resistance ......................................... 1349

2. Franchise Entrenchment .......................... 1351

a. Trademarks and Third-Party

Licenses ............................................... 1351

b. Network Effects .................................... 1354

3. Feedback Loop: More of the Same ............ 1355

C. Indie Games .................................................... 1356

1. Community Norms .................................... 1357

2. Finding a Niche ......................................... 1359

3. Alternative Funding .................................. 1361

4. The Pressure of Mobile ............................. 1361

V. I

MPLICATIONS ........................................................ 1363

A. Measuring Success .......................................... 1365

1. Revenues and Productivity ....................... 1365

2. Creative Content ....................................... 1366

3. Broader Impact .......................................... 1367

B. Success for Whom? .......................................... 1368

C. Contingent Stability ....................................... 1370

D. Breaking the Binary ....................................... 1373

ONCLUSION .................................................................... 1374

1288 79 WASH. & LEE L. REV. 1285 (2022)

NTRODUCTION

Is copyright necessary for creative production? Scholars

grappling with this question have investigated numerous case

studies on creative activity in intellectual property’s (IP’s)

“negative spaces”—activities ranging from fashion

to comedy,

stage magic,

haute cuisine,

and tattoo artistry,

along with fan

communities,

where creativity thrives without need for IP.

These studies indicate creative industries may be able to achieve

a “low-IP equilibrium” where creators mitigate the risk of

copying through non-IP strategies, often by enforcing

anti-copying norms among creators.

Some scholars have drawn on the negative-space literature

to question the need for IP in other creative industries.

1. See generally Kal Raustiala & Christopher Sprigman, The Piracy

Paradox: Innovation and Intellectual Property in Fashion Design, 92 V

A. L.

REV. 1687 (2006) [hereinafter, Raustiala & Sprigman, The Piracy Paradox];

Kal Raustiala & Christopher Sprigman, The Piracy Paradox Revisited, 61

TAN. L. REV. 1201 (2009) [hereinafter Raustiala & Sprigman, The Piracy

Paradox Revisited].

2. See generally Dotan Oliar & Christopher Sprigman, There’s No Free

Laugh (Anymore): The Emergence of Intellectual Property Norms and the

Transformation of Stand-Up Comedy, 94 V

A. L. REV. 1787 (2008); David

Fagundes & Aaron Perzanowski, Clown Eggs, 94 N

OTRE DAME L. REV. 1313

(2019).

3. See generally Jacob Loshin, Secrets Revealed: Protecting Magicians’

Intellectual Property Without Law, in L

AW AND MAGIC: A COLLECTION OF

ESSAYS 123 (Christine A. Corcos ed., 2010).

4. See generally Emmanuelle Fauchart & Eric von Hippel, Norms-Based

Intellectual Property Systems: The Case of French Chefs, 19 ORG. SCI. 187

(2008).

5. See generally Aaron Perzanowski, Tattoos & IP Norms, 98 M

INN. L.

REV. 511 (2013).

6. See generally Steven A. Hetcher, Using Social Norms to Regulate Fan

Fiction and Remix Culture, 157 U. PA. L. REV. 1869 (2009); Cathay Y.N. Smith,

Beware the Slender Man: Intellectual Property and Internet Folklore, 70 F

LA.

L. REV. 601 (2018); Elizabeth L. Rosenblatt, Who Will Speak for the Slender

Man?: Dialogism and Dilemmas in Character Copyright, 70 F

LA. L. REV. F. 69

(2018); Rebecca Tushnet, Legal Fictions: Copyright, Fan Fiction, and a New

Common Law, 17 L

OY. L.A. ENT. L. REV. 651 (1997).

7. See Amy Kapczynski, Order Without Intellectual Property Law: Open

Science in Influenza, 102 CORNELL L. REV. 1539, 1543–44 (2017); Elizabeth L.

Rosenblatt, A Theory of IP’s Negative Space, 34 C

OLUM. J.L. & ARTS 317,

341–57 (2011).

8. See, e.g., Aaron Perzanowski & Kate Darling, Introduction, in

REATIVITY WITHOUT LAW: CHALLENGING THE ASSUMPTIONS OF INTELLECTUAL

CREATIVITY WITHOUT IP? 1289

and raises prices for consumers.

The conventional account

holds that these costs are justified because copyright

incentivizes the creation and distribution of creative works.

documenting communities where these incentives are

unnecessary, the negative-space literature suggests copyright

should be scaled back in other sectors where it does not

meaningfully advance creativity.

Critics of the negative-space literature argue against the

general application of these case studies because they analyze

niche forms of creative production that do not require large

capital expenditures.

Some also question whether IP is absent.

One scholar has noted, for example, that the authors of the

fashion case study that launched the study of IP’s negative space

“make a strong case for why fashion can function in the absence

of copyright, but they largely ignore the role played by

trademarks.”

Critics argue that formal IP rights become

increasingly necessary as an industry grows in economic

significance and production becomes more expensive.

Other

work questions the distributive consequences of non-IP

strategies like deference to norms, finding that the benefits of

PROPERTY 7 (Kate Darling & Aaron Perzanowski eds., 2017) (“We cannot

prove, nor do we claim, that communities that rely on social norms or

market-based responses to address information appropriation produce an

optimal balance of incentives and costs. But the same is true of the case for

strong IP protection.”).

9. See William M. Landes & Richard A. Posner, An Economic Analysis

of Copyright Law, 18 J.

LEGAL STUD. 325, 332 (1989) (“The effect [of copyright

protection] would be to raise the cost of creating new works . . . .”).

10. See Glynn S. Lunney, Jr., Reexamining Copyright’s Incentives-Access

Paradigm, 49 V

AND. L. REV. 483, 492–98 (1996); Oren Bracha & Talha Syed,

Beyond the Incentive-Access Paradigm? Product Differentiation & Copyright

Revisited, 92 TEX. L. REV. 1841, 1852–53 (2014).

11. See, e.g., Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S.

539, 558 (1985).

12. See Kapczynski, supra note 7, at 1545–46; Jonathan M. Barnett, The

Illusion of the Commons, 25 B

ERKELEY TECH. L.J. 1751, 1755 (2010) (“[T]hese

markets tend to be confined to technologically primitive markets where

innovators have relatively insubstantial investments at risk.”); Rochelle

Cooper Dreyfuss, Does IP Need IP? Accommodating Intellectual Production

Outside the Intellectual Property Paradigm, 31 C

ARDOZO L. REV. 1437,

1455–57 (2010).

13. Dreyfuss, supra note 12, at 1450 (emphasis in original).

14. See supra note 12 and accompanying text.

1290 79 WASH. & LEE L. REV. 1285 (2022)

such strategies often flow to the well-financed or well-connected

incumbents least in need of protection.

The video game industry provides a unique opportunity to

test the viability of a low-IP equilibrium for a high-revenue,

capital-intensive creative industry.

With global revenues over

$170 billion in 2020, gaming has become one of today’s most

economically significant creative industries.

The industry now

generates greater revenues than Hollywood, music, and

15. Dreyfuss, supra note 12, at 1463–65; see Amy Kapczynski, The Law

of Informational Capitalism, 129 Y

ALE L.J. 1460, 1494 (2020) (book review)

(“One important task . . . is to unpack how demands for ‘openness,’ ‘sharing,’

and ‘freedom’ in the internet age helped enable—or at least did not stand in

the way of—the development of troubling forms of private power.”); Betsy

Rosenblatt, IP Law in the Shadow of Norms 8, 10 (July 26, 2021) (unpublished

manuscript) (on file with author). But see Raustiala & Sprigman, The Piracy

Paradox Revisited, supra note 1, at 1221 (“[F]ashion’s low-IP equilibrium does

at least deprive large fashion firms of one anticompetitive tool that big firms

operating in high-IP markets often use to grind down upstarts: lawyers.”).

16. The conventional designation of the games industry and other sectors

as “creative” can be problematic because the terminology foregrounds

“mysterious act[s] of inspiration” associated with individual creativity at the

expense of the material conditions of production and the more mundane ways

these industries shape culture. Peter Zackariasson, The Role of Creativity, in

HANGING THE RULES OF THE GAME: ECONOMIC, MANAGEMENT AND EMERGING

ISSUES IN THE COMPUTER GAMES INDUSTRY 105, 106–07 (Sabine Hotho & Neil

McGregor eds., 2013); see also Wallace McNeish, Critical Perspectives on the

Games Industry: Constructs and Collusion, in CHANGING THE RULES OF THE

GAME: ECONOMIC, MANAGEMENT AND EMERGING ISSUES IN THE COMPUTER

GAMES INDUSTRY 166, 182 (Sabine Hotho & Neil McGregor eds., 2013) (“The

games industry is far from special, rather it is an industry that like any other

is concerned with manufacturing and selling commodities with the aim of

generating profits.”); cf. Julie E. Cohen, Creativity and Culture in Copyright

Theory, 40 U.C.

DAVIS L. REV. 1151, 1154 (2007) (“Like other cultural

processes, artistic and intellectual processes are substantially and importantly

shaped by the concrete particulars of expression, the material attributes of

artifacts embodying copyrighted works, and the spatial distribution of cultural

resources.”). This Article retains the conventional terminology but

conscientiously interrogates the role that law and economic forces play in

shaping production and cultural content.

17. Kellen Browning, In a World Let Loose, Video Game Makers Are

‘Doubling Down’, N.Y.

TIMES (May 30, 2021), https://perma.cc/CWR3-3RNW

(last updated July 23, 2021). Lockdowns during the COVID-19 pandemic

contributed to 2020 revenues, but 2019 revenues surpassed $150 billion prior

to these developments. Wallace Witkowski, Videogames Are a Bigger Industry

than Movies and North American Sports Combined, Thanks to the Pandemic,

ARKETWATCH (Dec. 22, 2020, 11:36 AM), https://perma.cc/FQA4-YRTK (last

updated Jan. 2, 2021, 10:27 AM).

CREATIVITY WITHOUT IP? 1291

streaming services combined.

It is also capital intensive, with

recent blockbusters costing $100 million or more in production

costs and sometimes just as much in marketing.

Gaming’s

significance is also evident in its cultural impact. What was once

a hobby for teenage boys

now engages 64% of the U.S.

population, nearly half of them women and spanning all age

groups.

Video games have also been a lightning rod in U.S.

culture wars, most notably for prompting debates over violence

in entertainment media;

depictions of sexuality;

and issues

of diversity, equity, and representation.

18. Felix Richter, Gaming: The Most Lucrative Entertainment Industry

by Far, S

TATISTA (Sept. 22, 2020), https://perma.cc/56RE-MFM6. Video game

revenues have exceeded Hollywood’s since at least 2009 and music’s since at

least 2007. Tom Chatfield, Videogames Now Outperform Hollywood Movies,

HE GUARDIAN (Sept. 27, 2009, 6:29 AM), https://perma.cc/P36W-2LHU; see

Jacqui Cheng, Report: Video Game Spending to Surpass Music Spending This

Year, ARS TECHNICA (June 23, 2007, 10:35 AM), https://perma.cc/M2LK-XNTP.

19. See, e.g., Chatfield, supra note 18 (documenting Grand Theft Auto IV’s

production costs).

20. See Data E. USA, Inc. v. Epyx, Inc., 862 F.2d 204, 209–10, 210 n.6

(9th Cir. 1988) (deeming a game’s target audience to be a “discerning

17.5-year-old boy”).

21. E

NT. SOFTWARE ASS’N, 2020 ESSENTIAL FACTS ABOUT THE VIDEO GAME

INDUSTRY 3–5 (2021), https://perma.cc/HGQ5-AT49 (PDF). Players are also

racially diverse. Survey data indicates a greater proportion of Black and

Hispanic respondents self-identify as “gamers” than their white peers. See

Monica Anderson, Views on Gaming Differ by Race, Ethnicity, P

EW RSCH. CTR.

(Dec. 17, 2015), https://perma.cc/UTD5-T73E.

22. See Brown v. Ent. Merchs. Ass’n., 564 U.S. 786, 804 (2011)

(“California’s effort to regulate violent video games is the latest episode in a

long series of failed attempts to censor violent entertainment for minors.”);

Patrick M. Markey & Christopher J. Ferguson, Teaching Us To Fear: The

Violent Video Game Moral Panic and the Politics of Game Research, 10 A

M. J.

LAY 99, 102 (2017) (“As early as 1983 . . . the U.S. Surgeon General[]

suggested that video games . . . were a leading cause of family violence.”);

Ralph Blumenthal, ‘Death Race’ Game Gains Favor, But Not with the Safety

Council, N.Y.

TIMES (Dec. 28, 1976), https://perma.cc/ZB6B-TZAS.

23. See Protect Children from Video Game Sex and Violence Act, H.R.

669, 108th Cong. § 3(a) (2003); Cian Maher, Mass Effect 2’s Jack Was

Originally Pansexual, But Non-Straight Romances Were Cut Because of Fox

News, T

HEGAMER (Jan. 22, 2021), https://perma.cc/FT33-F8GB.

24. Video game history has witnessed progressive reform followed by

backlash. Women and allies in the industry came forward with the

#1reasonwhy movement to confront gendered harassment in video games in

2012, five years before the #MeToo movement emerged in Hollywood. See

ESPER JUUL, HANDMADE PIXELS: INDEPENDENT VIDEO GAMES AND THE QUEST

FOR

AUTHENTICITY 115 (2019). The “GamerGate” incident followed shortly

1292 79 WASH. & LEE L. REV. 1285 (2022)

Video games’ rise to prominence is all the more significant

given that key game elements lack IP protection. While we

normally turn to copyright to protect creative works, copyright

offers only thin protection for game design.

It covers aspects of

increasingly photorealistic games that make them resemble

films—art assets, unique characters, and soundtracks—but it

does not cover design elements unique to games as an

interactive medium.

For over forty years, this gap has meant

that copyright does not prohibit “clones”—games that utilize the

same gameplay and compete for the same set of players.

Game

developers therefore require strategies beyond IP to compete

with those who would copy their works.

Gaming should, under these circumstances, be a prime

candidate for studying how IP—or its absence—impacts a major

creative industry. Yet video games are conspicuously absent

from IP scholarship. The number of law review pieces featuring

“video-game” within ten words of “copyright” is nearly an order

of magnitude less than the number mentioning “music” or

“software.”

What little has been written on video games has

been split across a wide range of topics but seldom focuses on

cloning or the ultimate question of how IP shapes the industry

and creative content of games.

The breadth is not in itself

after, launching a campaign of coordinated harassment that “involved online

attacks and threats toward a number of developers and critics—especially

marginalized developers, women, and developers with nontraditional gender

identities.” Id. at 118.

25. See infra Part II.

26. Cf. Drew S. Dean, Comment, Hitting Reset: Devising a New Video

Game Copyright Regime, 164 U.

PA. L. REV. 1239, 1279 (2016) (advising

designers to infuse games with “more ‘traditional’ forms of expression” for

protection).

27. See infra Part I.

28. Searching Westlaw’s law reviews and journals database through

January 1, 2022, for all hits on “copyright” within 10 words of “music” yielded

6,614 results and a similar search for “software” yielded 7,844. Searching for

“video-game!” yielded only 933. Even restricting the search to publications

since the year 2000—excluding prior decades where games were less

economically and culturally salient—“music” yields 5,361 hits, “software”

5,568, and “video-game!” 642.

29. Notable exceptions include a comment by Drew Dean, supra note 26,

arguing for greater protection in response to cloning by mobile developers, and

the newly published article by Christopher B. Seaman & Thuan Tran,

Intellectual Property and Tabletop Games, 107 I

OWA L. REV. 1615 (2022),

addressing how IP rights impact innovation in the related sector of board

CREATIVITY WITHOUT IP? 1293

surprising given that the copyright issues salient for games

have evolved alongside their technological and social contexts.

The arcade machines of the 1970s and 1980s sat in public places

and forced courts to decide whether gameplay constituted

“public performance;”

the console wars of the 1990s raised

questions of whether games could be reverse engineered or

emulated;

and increasing authenticity has raised questions

around the depiction of real people and places, or even athletes’

tattoos.

In recent years, several pieces—many by enterprising

law students—have interrogated the respective rights of game

developers and fan communities as players have begun

streaming gameplay on platforms like Twitch and YouTube or

animating game characters like puppets to create “machinima”

videos.

games. One of my own students has also written a forthcoming paper on issues

of labor law and unionization in the industry. Laura Newberry, Note, The

ABCs of Gaming: Activision, Biden, and Coronavirus Set the Stage for Labor

Unionization in the Video Game Industry, 2022 W

IS. L. REV. (forthcoming) (on

file with author).

30. See, e.g., Red Baron-Franklin Park, Inc. v. Taito Corp., 883 F.2d 275,

278–79 (4th Cir. 1989).

31. See Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510, 1518–19 (9th

Cir. 1992); Sony Computer Ent., Inc. v. Connectix Corp., 203 F.3d 596,

603–05 (9th Cir. 2000).

32. See E.S.S. Ent. 2000, Inc. v. Rock Star Videos, Inc., 547 F.3d 1095,

1097–98, 1101 (9th Cir. 2008) (rejecting trademark and trade dress claims for

depiction of a strip club); Solid Oak Sketches, LLC v. 2K Games, Inc., 449 F.

Supp. 3d 333, 346–50 (S.D.N.Y. 2020) (finding that in-game depiction of

tattoos on NBA players constituted fair use).

33. See generally David E. Ashley, Note, The Public as Creator and

Infringer: Copyright Law Applied to the Creators of User-Generated Video

Content, 20 F

ORDHAM INTELL. PROP. MEDIA & ENT. L.J. 563 (2009); J. Remy

Green, Note, All Your Works Are Belong to Us: New Frontiers for the Derivative

Work Right in Video Games, 19 N.C. J.L. & TECH. 393 (2018); Shani Shisha,

Fairness, Copyright, and Video Games: Hate the Game, Not the Player, 31

ORDHAM INTELL. PROP. MEDIA & ENT. L.J. 694, 761–69 (2021); Ryan Wallace,

Comment, Modding: Amateur Authorship and How the Video Game Industry

Is Actually Getting It Right, 2014 BYU L. REV. 219 (2014). Scholars have also

documented expansion of end-user license agreements and DMCA

anti-circumvention measures in games alongside similar developments in

software generally. See generally BJ Ard, Notice and Remedies in Copyright

Licensing, 80 M

O. L. REV. 313 (2015) [hereinafter Ard, Notice and Remedies];

Joshua A.T. Fairfield, Nexus Crystals: Crystallizing Limits on Contractual

Control of Virtual Worlds, 38 WM. MITCHELL L. REV. 43 (2011); Guy A. Rub,

Against Copyright Customization, 107 I

OWA L. REV. 677 (2022).

1294 79 WASH. & LEE L. REV. 1285 (2022)

This lack of scholarly attention to cloning is surprising,

however, because cloning has been one of the industry’s few

constants. In gaming’s earliest days, developers crashed the

market by flooding it with Pong clones.

The practice continued

through the arcade, console, and mobile gaming eras because

judicial decisions since as early as 1981 repeatedly held that

cloning does not infringe the copyright in the original

games

—up to a point.

This makes video games ripe for study

on not only how the industry functions in the absence of strong

impacted the industry’s history and evolution.

The industry’s evolution provides remarkable illustrations

of dynamics identified in prior studies of IP’s negative space. On

one side of the industry are highly commercialized AAA games

that cost upward of $100 million to produce.

AAA publishers

copy and build on popular gameplay elements from their

competitors, but cloning disputes are rare.

This sector

resembles the paradigmatic low-IP equilibrium where the

harms of copying are mitigated by features of the works

themselves.

One cannot cheaply clone a multimillion dollar

game and expect it to be competitive: much of the game’s appeal

comes from features like hyper-realistic graphics and sprawling

34. See generally Mark J.P. Wolf, The Video Game Industry Crash of

1977, in B

EFORE THE CRASH: EARLY VIDEO GAME HISTORY 81 (Mark J.P. Wolf

ed., 2012).

35. See Incredible Techs., Inc. v. Virtual Techs., Inc., 400 F.3d 1007,

1012–15 (7th Cir. 2005); Data E. USA, Inc. v. Epyx, Inc., 862 F.2d 204, 209

(9th Cir. 1988); Atari, Inc. v. Amusement World, Inc., 547 F. Supp. 222,

229–30 (D. Md. 1981); Capcom U.S.A., Inc. v. Data E. Corp., No. C 93-3259,

1994 WL 1751482, at *5 (N.D. Cal. Mar. 16, 1994).

36. See Atari, Inc. v. N. Am. Philips Consumer Elecs. Corp., 672 F.2d 607,

617–18 (7th Cir. 1982) (holding defendant infringed on Pac-Man because it

copied the protagonist and enemies too closely); Universal City Studios, Inc. v.

Nintendo Co., 615 F. Supp. 838, 859 (S.D.N.Y. 1985), aff’d, 797 F.2d 70 (2d Cir.

1986).

37. See infra I.C.1.

38. See Eric A. Taub, In Video Games, Sequels Are Winners, N.Y.

TIMES

(Sept. 20, 2004), https://perma.cc/UC5H-2LF2 (“The game industry is not

interested in original ideas. We don’t even waste our time pitching them . . . .”

(internal quotation omitted)); Christopher Lunsford, Note, Drawing a Line

Between Idea and Expression in Videogame Copyright: The Evolution of

Substantial Similarity for Videogame Clones, 18 I

NTELL. PROP. L. BULL. 87,

101 (2013).

39. See infra Part IV.A.1.

CREATIVITY WITHOUT IP? 1295

open worlds that are expensive to duplicate and therefore

resistant to copying regardless of IP protection.

Effectively,

however, major franchises are guilty of cloning their own games

given how heavily they rely on sequels and associated

trademarks.

Critics have derided this sequelization as a sign

of creative stagnation since the advent of the AAA sector in the

early 2000s.

On the other side are “indie” games. Independent studios

have adopted a different ethos; they strive to innovate in theme

and gameplay rather than compete on production value.

This

sector resembles the paradigmatic norm-enforcement regime.

Indie success requires winning approval from the cultural

intermediaries who award exhibition space, prizes, and

networking opportunities to promising developers.

Winning

approval, in turn, requires compliance with community

anti-copying norms, which mitigates cloning among indie

developers.

Indie studios also avert cloning by picking themes

and aesthetics without mainstream appeal,

and they

additionally mitigate risk through financial innovations like

crowdfunding.

Because the novel gameplay mechanics at the

core of many indie games are cheap to emulate, however, they

now face the risk of cloning by opportunistic actors in mobile

gaming.

40. See infra Part IV.B.1.

41. See Taub, supra note 38 (“In the six-month period ending in June,

only two of the 10 best-selling video games were based on original ideas . . . .”).

42. See id.

43. J

UUL, supra note 24, at 34–37; see infra Part I.C.2.

44. See infra .

45. See, e.g., Felan Parker et al., Megabooth: The Cultural Intermediation

of Indie Games, 20 N

EW MEDIA & SOC’Y 1953, 1968 (2017); see infra Part

IV.C.1.

46. See Christian Katzenbach et al., Copies, Clones, and Genre Building:

Discourses on Imitation and Innovation in Digital Games, 10 I

NT’L J. COMMC’N

838, 852–53 (2016); Tom Phillips, “Don’t Clone My Indie Game, Bro”: Informal

Cultures of Videogame Regulation in the Independent Sector, 24 C

ULTURAL

TRENDS 143, 149–51 (2015) (outlining the “evaluation of the artistic integrity

of games” that takes place informally within the indie community, often done

through public shaming).

47. See infra Part IV.C.2.

48. See infra Part IV.C.3.

49. See infra Part IV.C.4.

1296 79 WASH. & LEE L. REV. 1285 (2022)

While this case study advances the debate over IP’s

negative space, the significance of the video game industry goes

beyond vindicating the argument that creative production is

viable with limited IP protection. The video game industry

exemplifies the realities of contemporary creative production

and the complex interplay of legal and non-legal protections

across creative industries. Moving forward, this case study

advances our understanding of the creative industries in four

ways. First, it pushes us beyond asking whether such production

is possible and to grapple with how the interplay of legal and

non-legal protections shapes the substance of what the industry

produces and determines which creators are likely to succeed.

Competing by budget, like AAA publishers, raises the costs of

entry, and, combined with reliance on trademarks, leads to lack

of variety in big-budget games.

Meanwhile, indie studios are

steered toward niche content and arguably under-rewarded for

innovation and risk-taking.

Second, this study requires us to recognize that creative

industries are not monolithic. AAA and indie approaches

represent two very different strategies within the same

industry, and outcomes within each segment vary.

Other

pursuits such as fashion and comedy likewise have incumbents

at the top, amateurs trying to break in, and, undoubtedly, many

tiers of creative and financial success in between.

Assessing

whether a legal regime works—or even whether it is

low-IP—depends on which segments we examine.

Third, close examination of these segments and their

history also shows that the stability of the regime is contingent

on its intersections with broader trends in technology, the

market, and society.

Cloning was rampant in the early years

because games were simple and cheap to copy.

Game

developers responded with technical protections and business

strategies that mitigated cloning until such point that

50. See infra Part V.A.

51. See infra Part V.A.

52. See infra Part V.B.

53. See, e.g., Fabian Holt & Maria Mackinney-Valentin, Can Anyone Be a

Designer?: Amateurs in Fashion Culture, 3 A

RTIFACT: J. DESIGN PRAC. 6.1, 6.1

(2015).

54. See infra Part V.C.

55. See infra Part I.A.

CREATIVITY WITHOUT IP? 1297

top-selling games were so expensive to produce that cloning was

no longer a threat.

Yet cloning reappeared as mobile gaming

became popular because people were once again playing games

that were simple and cheap to copy.

Fourth, this case study demonstrates the shortcomings of a

taxonomy that bifurcates industries into either the “full-IP” or

negative-space category.

Notwithstanding the law’s apparent

indifference to cloning, some may object that games do not

belong in the negative-space discussion.

Others question

whether even paradigmatic examples like fashion and comedy

qualify, given the prominence of trademarks in fashion and the

reality that many comedians seek to profit from copyrighted

specials.

But to quibble over whether any given industry

makes the cut is to risk missing the point. Every category of

creative works features some elements that are legally

protected, some subject to de facto protection through practical

obstacles or norms, and others that competitors can readily

appropriate. Protection regimes exist on a spectrum, not a

binary. To progress our understanding of today’s creative

industries requires opening the field and recognizing the

dynamics playing out across both sides of the supposed divide

between negative-space industries and those, like film and

music, that are conventionally recognized as having full

56. See infra Parts I.B, I.C.1.

57. See infra Part I.C.2.

58. See infra Part V.D.

59. These objections may stem from the observation that copyright law

formally protects against consumer copying in the form of piracy. Even in this

setting, however, formal legal rights do only part of the work. Although full

examination of these dynamics is beyond the scope of this Article, it bears

noting that video game publishers have established comprehensive anti-piracy

protection not by threatening legal action but by adopting technical measures

and business models that create practical obstacles for piracy and dampen its

financial impact. See, e.g., Andrew V. Moshirnia, Giant Pink Scorpions:

Fighting Piracy with Novel Digital Rights Management Technology, 23

EPAUL J. ART, TECH. & INTELL. PROP. L. 1, 2 (2012). I intend to develop these

observations further in future work.

60. See Dreyfuss, supra note 12, at 1450.

61. This broadens the dialog to include, among other scholarship, work

on copyright’s role in structuring investment in capital-intensive works like

films and work documenting the correlation between changes in copyright

enforceability and the output of the music industry. See generally Julie E.

1298 79 WASH. & LEE L. REV. 1285 (2022)

This Article develops the foregoing arguments in five Parts.

Part I traces the history of the gaming industry, with special

attention paid to cloning in the early years; the later emergence

of AAA games, where cloning is not a major threat; and indie

games, where the resurgence of cloning once again raises

problems. Part II engages with legal doctrine to explain why

Part III explains why patent and trademark do not fill this gap.

Part IV introduces the negative-space literature and situates

the video game industry’s non-legal strategies for addressing

cloning within that body of scholarship. Finally, Part V delves

further into the broader implications of this case study for

understanding the interplay between copyright and the creative

industries.

I. S

TATE OF THE INDUSTRY

Understanding the industry requires knowing its history.

Many contemporary struggles echo those the industry faced in

the early years of arcade games, Atari home consoles, and

rampant cloning. More recent trends stem from the industry’s

adoption of digital distribution and online business models. The

following discussion outlines the developments that laid the

groundwork for two contemporary models for competing: the

big-budget, AAA publishers and the lower budget indies.

A. Early Clones, Low Quality, and Market Crashes

The history of the industry begins with the release of the

arcade game Computer Space in 1971 by Nolan Bushnell and

Ted Dabney; the pair would go on to found Atari the following

year and release the arcade hit Pong.

Many imitators followed

Cohen, Copyright as Property in the Post-Industrial Economy: A Research

Agenda, 2011 W

IS. L. REV. 141 (2011); GLYNN LUNNEY, COPYRIGHT’S EXCESS:

MONEY AND MUSIC IN THE U.S. RECORDING INDUSTRY (2018).

62. See S

TEVEN L. KENT, THE ULTIMATE HISTORY OF VIDEO GAMES xii,

38–39 (2001). The history of non-commercial video games reaches back to at

least 1961 with Spacewar!, which was created by a team at MIT. See RANDY

NICHOLS, THE VIDEO GAME BUSINESS 16 (2014). Setting the tone for all that

was to come, Computer Space was itself a clone of Spacewar!. See Casey

O’Donnell, The North American Game Industry, in THE VIDEO GAME INDUSTRY:

FORMATION, PRESENT STATE, AND FUTURE 99, 100 (Peter Zackariasson &

Timothy L. Wilson eds., 2012).

CREATIVITY WITHOUT IP? 1299

with cloned “table tennis” games.

As it turns out, Atari itself

copied from another developer to create Pong:

Bushnell and

Dabney began working on Pong after viewing a pre-release

demonstration of a table tennis game for the first home video

game console, the Magnavox Odyssey.

The Odyssey hit the

market in September 1972 with twelve games, including Table

Tennis at the top of the list; Atari released the virtually identical

Pong two months later.

For a time the games were

complementary: Pong was so popular in arcades that it drove

people to buy the Odyssey to keep playing at home.

The

companies’ relationship soured around Atari’s release of Home

Pong in 1975.

Magnavox responded with a patent suit against Atari and

other imitators, leading to one of the first video game lawsuits

and the only major episode of patent enforcement involving

game clones.

The patent covered the game mechanic whereby

a player-controlled symbol (the paddle) strikes a

computer-controlled symbol (the ball) and causes the latter to

change direction.

Atari and several other defendants elected to

63. See HAROLD GOLDBERG, ALL YOUR BASE ARE BELONG TO US: HOW FIFTY

YEARS OF VIDEOGAMES CONQUERED POP CULTURE 30–31 (2011) (“By the time

the trend peaked, there were well over 100,000 Pong-inspired arcade games

across the United States.”).

64. See T

RISTAN DONOVAN, REPLAY: THE HISTORY OF VIDEO GAMES 14–26

(2010).

65. R

ALPH H. BAER, VIDEOGAMES: IN THE BEGINNING 81 (2005); see Kate

Willaert, Pixels in Print (Part 2): Advertising Odyssey—The First Home Video

Game, VIDEO GAME HIST. FOUND. (Mar. 20, 2020), https://perma.cc/3JQD-

L9FG.

66. See Willaert, supra note 65.

67. See Chris Kohler, How Pong and the Odyssey Console Launched the

Videogame Era, W

IRED (Jan. 9, 2015, 6:30 AM), https://perma.cc/8DXE-W75D

(“Pong’s success was actually visited back onto the Odyssey, which had its

biggest sales in 1974—after Pong had become a huge arcade success, but a

year before Atari could launch its first Home Pong product.”).

68. See D

ONOVAN, supra note 64, at 34–36.

69. See William K. Ford, Copy Game for High Score: The First Video

Game Lawsuit, 20 J. INTELL. PROP. L. 1, 37 (2012). The first suit was filed

between another pair of Pong imitators in 1973. See id. at 3.

70. See generally Magnavox Co. v. Bally Mfg. Corp., 414 F. Supp. 891

(N.D. Ill. 1976).

71. See U.S. Patent No. 28,507 (filed Apr. 25, 1974); Magnavox Co. v. Chi.

Dynamic Indus., Nos. 74 C 1030 & 74 C 2510, 1977 U.S. Dist. LEXIS 17996,

at *4 (N.D. Ill. Jan. 10, 1977).

1300 79 WASH. & LEE L. REV. 1285 (2022)

settle and pay license fees to continue selling Pong, while those

who refused to settle lost in court.

The proliferation of Pong clones also set the stage for the

Video Game Crash of 1977. By 1977 there was a glut of

“first-generation” game consoles, many of which were poorly

made and most of which could only play one game—usually

some version of table tennis—or a handful of pre-installed

games.

Sales stagnated because consumers who bought one

had no reason to buy another.

Retailers’ inability to sell these

consoles compounded following the release of

“second-generation” consoles like the Atari 2600 that allowed

consumers to acquire new games via standalone cartridges.

First-generation stock sat unsold or was sold at a loss, and many

manufacturers were forced out of business.

Atari continued to produce hits in the arcades and on home

consoles—and imitators continued to follow. Its game Asteroids

spawned the clone Meteors, which prompted Atari to file a

pivotal copyright lawsuit.

Both games had the player pilot a

spaceship with the objective of shooting space rocks while

avoiding collisions.

The court enumerated twenty-two

similarities, from inclusion of exactly three different sizes of

rocks to awarding extra lives when the player scored 10,000

points.

Yet the court found no infringement.

As it explained, the

resemblance traced back to “the basic idea of a video game

involving space rocks.”

exclusive rights to an idea; likewise, it does not convey a

72. See Magnavox, 1977 U.S. Dist. LEXIS 17996, at *12; DONOVAN, supra

note 64, at 26.

73. See Wolf, supra note 34, at 83–87.

74. See id.

75. See id.

76. See id. at 83.

77. See generally Atari, Inc. v. Amusement World, Inc., 547 F. Supp. 222

(D. Md. 1981).

78. See id. at 227.

79. Id. at 224–25.

80. Id. at 229–30.

81. Id. at 229.

CREATIVITY WITHOUT IP? 1301

monopoly on expressive elements necessary or inevitable in

depicting that idea.

Undeterred, Atari returned to court to enforce the copyright

in Pac-Man.

Atari did not create the original game.

Rather,

after Pac-Man became an arcade sensation, Atari acquired the

exclusive license to adapt it for home consoles.

Before Atari

could release its version, however, a competitor released the

unauthorized Pac-Man clone K.C. Munchkin!.

Both were maze

chases: “the player directs [a] gobbler through the maze

consuming dots and avoiding capture by the monsters; by

gobbling a power capsule, the player can reverse the roles.”

Screen captures reveal additional similarities:

82. See id. (“[T]he Court must be careful not to interpret [Atari’s]

are inextricably associated with the idea of such a video game.”); see also infra

Part II.C.

83. See Atari, Inc. v. N. Am. Philips Consumer Elecs. Corp., 672 F.2d 607,

620 (7th Cir. 1982).

84. See D

ONOVAN, supra note 64, at 87–89.

85. See Thomas M.S. Hemnes, The Adaptation of Copyright Law to Video

Games, 131 U. P

A. L. REV. 171, 191 n.125 (1982).

86. See Atari, Inc., 672 F.2d at 620.

87. Id. at 611.

1302 79 WASH. & LEE L. REV. 1285 (2022)

Figure 1: Atari v. North American Philips

Pac-Man, left; K.C. Munchkin!, right

This time, Atari prevailed. As in the Asteroids case, the

court recognized Atari could not monopolize the maze-chase

idea.

The court insinuated that if Pac-Man involved common

themes or real-world occurrences—like a bank robber fleeing

security guards—competitors would have latitude to copy the

game and its characters.

What distinguished Pac-Man was its

fanciful artistic choices: a main character who was a

disembodied mouth and antagonists in the form of multicolored

ghosts.

The defendant infringed by taking the same artistic

direction.

88. Id. at 617 (distinguishing unprotectable methods of play from

“concrete details of the visual presentation [that] constitute the copyrightable

expression”).

89. See id. at 617 n.10, 618 (suggesting less protection for characters with

“reference to the real world” as was the case for a competing game Take the

Money and Run).

90. Id. at 617–18.

91. See id. at 618. Other instances where plaintiffs prevailed followed

similar logic. See, e.g., Midway Mfg. Co. v. Bandai-America, Inc., 546 F. Supp.

125, 146 (D. N.J. 1982) (holding the insectile shape of aliens in Galaxian

protectable); Universal City Studios, Inc. v. Nintendo Co., 615 F. Supp. 838,

CREATIVITY WITHOUT IP? 1303

Most games in this era did not approach the success of

Asteroids or Pac-Man.

The market flourished for only a few

short years after the 1977 crash before the more devastating

Video Game Crash of 1983.

Atari’s game sales accelerated

following its 1980 release of the home version of Space Invaders,

the “killer app” of its day.

In the rush to meet consumer

demand, however, developers sacrificed quality. The ill-fated

Atari game E.T. the Extraterrestrial—regarded as “the worst

video game of all time”

—is emblematic. Atari reportedly spent

$20 million for rights to produce a game based on the Spielberg

film.

The rush to release the game in time for Christmas meant

that developers had only six weeks to work—far less than the

industry norm—resulting in a confusing game and

disappointment for movie fans.

While many blame the E.T.

game for the crash, it was merely the tip of the iceberg. Anyone

with rudimentary programming skills could make games for the

Atari 2600.

The market became saturated with low-quality

titles not from studios who could pay millions for film licenses,

but from innumerable small operations looking for a quick

859 (S.D.N.Y. 1985), aff’d, 797 F.2d 70 (2d Cir. 1986) (extending protection to

Mario’s distinctive march in Donkey Kong).

92. See K

ENT, supra note 62, at 143 (“Pac-Man appeared on the cover of

Time magazine, inspired a hit song, and translated into a popular Saturday

morning cartoon show.”). Notwithstanding its mark on pop culture, even

Pac-Man faced mixed success: The arcade original was a fan favorite, but Atari

was ultimately stuck with five million unsold copies of its inferior home

release. See D

USTIN HANSEN, GAME ON!: VIDEO GAME HISTORY FROM PONG AND

PAC-MAN TO MARIO, MINECRAFT, AND MORE 46 (2016).

93. See K

ENT, supra note 62, at 123–77.

94. The Definitive Space Invaders, R

ETRO GAMER, Dec. 2003–Jan. 2004,

at 23, 25.

95. Geoff Brumfiel, Total Failure: The World’s Worst Video Game, NPR

(May 31, 2017), https://perma.cc/TF6K-7AEA.

96. I

AN BOGOST, PERSUASIVE GAMES: THE EXPRESSIVE POWER OF

VIDEOGAMES 175 (2007).

97. See id.; Ted Trautman, Excavating the Video-Game Industry’s Past,

HE NEW YORKER (Apr. 29, 2014), https://perma.cc/CP93-AUEP.

98. See John M. Arnone, Game (Not) Over: How a Mark Saved Video

Games, 19 J. CONTEMP. LEGAL ISSUES 247, 247–48 (2010); see HANSEN, supra

note 92, at 46 (“The real problem wasn’t that there weren’t any good games, it

was that the good games were getting drowned out by the bad ones.”).

1304 79 WASH. & LEE L. REV. 1285 (2022)

profit.

As quality declined, consumer confidence and sales

plummeted.

100

The second generation of consoles met its end as

millions of cartridges sat on shelves and in warehouses

unsold.

101

In just over a decade, the industry established several

trends that would endure into the present. Imitation was

widespread,

102

players were frustrated with quality,

103

and

courts established in these early years that games were only

partly protected.

104

Patents would continue to be important, but

for hardware rather than games.

105

Going forward, the focus

would be copyright, and its exceptions and limitations would

leave room for imitation.

B. Hitting Reset

Nintendo spearheaded the third console generation with

the U.S. release of the Nintendo Entertainment System (NES)

in 1985.

106

The industry learned the importance of quality

control from the 1977 and 1983 crashes.

107

Nintendo pursued

this objective through marketing and the design of its system: it

implemented a lockout code called 10NES so third parties could

not release unauthorized games.

108

This meant Nintendo could

99. See Arnone, supra note 98, at 247 n.2 (noting that even dog food

companies began to create video games).

100. See id. at 248.

101. Or worse. As one journalist reports: “[D]emand for video games had

fallen so much that [Atari] dumped fourteen trucks’ worth of merchandise in

a New Mexico landfill and poured cement over the forsaken games to prevent

local children from salvaging them.” Trautman, supra note 97.

102. See Wolf, supra note 34, at 81–83.

103. See Arnone, supra note 98, at 248.

104. See Atari, Inc. v. Amusement World, Inc., 547 F. Supp. 222, 229–30

(D. Md. 1981); see also Atari, Inc. v. N. Am. Philips Consumer Elecs. Corp., 672

F.2d 607, 617 (7th Cir. 1982).

105. See Kyle Gross, Game On: The Rising Prevalence of Patent-Related

Issues in the Video Game Industry, 12 SMU

SCI. & TECH. L. REV. 243, 247

(2009) (“Of the few patents in effect during the early years of the video game

industry, most focused on gaming hardware . . . .”).

106. See Arnone, supra note 98, at 248.

107. See id.

108. See Julie E. Cohen, Reverse Engineering and the Rise of Electronic

Vigilantism: Intellectual Property Implications of “Lock-Out” Programs, 68 S.

CAL. L. REV. 1091, 1101 (1995) [hereinafter Cohen, Reverse Engineering]; see

CREATIVITY WITHOUT IP? 1305

screen for quality and reject low-effort clones like those that

precipitated prior crashes. This control also assured parents of

child-friendly content, albeit at the price of censorship: beyond

profanity, Nintendo removed practically any reference to

sexuality, religion, or politics.

109

Similar technical restrictions were widely adopted but

ultimately limited in effect. Nintendo sued for copyright

infringement when Atari copied 10NES in its efforts to bypass

it—Atari asserted fair use and lost.

110

This case was unusual,

however, because Atari had obtained Nintendo’s original source

code through false representations to the Copyright Office.

111

Atari had instead obtained the code through reverse

engineering, the court suggested that its actions could have

constituted fair use.

112

The following month, the Ninth Circuit

embraced that dicta in a decision involving a lockout code for the

Sega Genesis console.

113

Prior to that case, third parties could

release games for Genesis only with Sega’s approval, and they

were subject to a ten to fifteen dollar license fee per cartridge.

114

Game maker Accolade reverse engineered the system to bypass

the lockout code.

115

The Ninth Circuit ultimately held that

also Atari Games Corp. v. Nintendo of Am., Inc., 975 F.2d 832, 836 (Fed. Cir.

1992).

109. Dominic Arsenault, System Profile: The Nintendo Entertainment

System (NES), in T

HE VIDEO GAME EXPLOSION: A HISTORY FROM PONG TO

PLAYSTATION AND BEYOND 109, 111 (Mark J.P. Wolf ed., 2008); see also Lewis

Galoob Toys, Inc. v. Nintendo of Am., Inc., 780 F. Supp. 1283, 1296 (N.D. Cal.

1991), aff’d, 964 F.2d 965 (9th Cir. 1992) (emphasizing efforts to prevent harm

to the “Nintendo Culture”).

110. See Atari, 975 F.2d at 843.

111. See id. at 841–42 (“Because Atari was not in authorized possession of

the Copyright Office copy of 10NES, any copying or derivative copying of

10NES source code from the Copyright Office does not qualify as a fair use.”).

112. See id. at 842; see also 4 N

IMMER ON COPYRIGHT § 13.05[D][4] (2022).

Reverse engineering would involve working backwards from published “object

code” to determine the “source code,” revealing details of the lockout

mechanism. Cohen, Reverse Engineering, supra note 108, at 1098, 1098 n.29.

From there, programmers could devise the means to bypass it. Id. Atari

essentially cheated: it lied to obtain the source code without doing the work.

113. See Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510, 1525 (9th Cir.

1992). The Supreme Court subsequently endorsed this decision. See Google

LLC v. Oracle Am., Inc., 141 S. Ct. 1183, 1199, 1208 (2021).

114. See K

ENT, supra note 62, at 381.

115. Sega Enters., 977 F.2d at 1514–15.

1306 79 WASH. & LEE L. REV. 1285 (2022)

reverse engineering to create interoperable software was fair

use.

116

Nearly a decade later, Sony sued the maker of a

PlayStation emulator, that is, a program that runs PlayStation

games on a computer without the purchase of a PlayStation

console.

117

The Ninth Circuit held this too was fair use.

118

Cumulatively, this meant console manufacturers had little

ability to constrain third-party games and add-ons.

These rulings left the door open to unauthorized clones, and

decisions in this era followed the trend of the prior decade.

Competitors could copy gameplay, depictions of the same sports

or other life activities, and even fantasy elements so long as they

were rooted in common tropes. Take the suit by Capcom,

developer of Street Fighter II, against the similar game Fighter’s

History.

119

Both were fighting games that depicted martial

artists in their typical (often stereotypical) garb, many of whom

could execute special moves like throwing fireballs from their

hands.

120

The resemblance was palpable:

Figure 2: Capcom U.S.A. v. Data East

Street Fighter II, left; Fighter’s History, right

116. See id. at 1520 (“Where there is good reason for studying or examining

the unprotected aspects of a copyrighted computer program, disassembly for

purposes of such study or examination constitutes a fair use.”).

117. See generally Sony Comput. Ent. v. Connectix Corp., 203 F.3d 596

(9th Cir. 2000).

118. See id. at 608. The Supreme Court has also cited this case favorably.

See Google, 141 S. Ct. at 1198, 1208.

119. See generally Capcom U.S.A., Inc. v. Data E. Corp., No. C 93-3259,

1994 WL 1751482 (N.D. Cal. Mar. 16, 1994).

120. See id. at *12–15.

CREATIVITY WITHOUT IP? 1307

When Capcom moved to enjoin the game, the district court

deemed Capcom’s copyright claim meritless.

121

It dissected

Street Fighter II’s characters and signature moves and found

them unoriginal because they replicated uniforms and styles

prevalent in real martial arts and pop culture.

122

Even Street

Fighter II’s fantastical elements—like the ability to hurl magical

projectiles—were preceded by examples in earlier games and

comic books.

123

The court refused to award the plaintiff a

monopoly in the genre.

The more novel development was the rise of sequels and

franchises. Popular games spawned sequels with familiar

gameplay alongside incremental improvements to take

advantage of new consoles’ graphical capabilities.

124

Two of the

most prolific were the Super Mario Bros. series of side-scrolling

platformers with ten releases from 1985 through 2002 and the

Final Fantasy roleplaying-game series with eleven releases over

as many years.

125

Popular franchises like Mario also launched

spin-offs beyond the game’s original premise: puzzle games like

Dr. Mario, racing games like Mario Kart, and titles starring his

brother Luigi, his rival Wario, or his dinosaur companion

Yoshi.

126

As commentators observed, sequels crowded out

opportunities for new ideas and market entrants.

127

By 2004,

even contemporary journalists at The New York Times had

taken note, warning: “All licensed and all sequel game titles all

121. See id. at *15.

122. See id. at *11–12. The Ninth Circuit reached a similar conclusion in

earlier litigation featuring the maker of Fighter’s History as plaintiff, where

the similarities originated in the unprotectable “idea of a martial arts karate

combat game” and “idea of the karate sport.” Data E. USA, Inc. v. Epyx, Inc.,

862 F.2d 204, 209 (9th Cir. 1988) (emphasis in original).

123. See Capcom, 1994 WL 1751482, at *15–16.

124. See André Marchand & Thorsten Hennig-Thurau, Value Creation in

the Video Game Industry: Industry Economics, Consumer Benefits, and

Research Opportunities, 27 J.

INTERACTIVE MKTG. 141, 143 (2013).

125. See Mario Through the Years, N

INTENDO, https://perma.cc/D2BU-

F59G; History, S

QUARE ENIX, https://perma.cc/P6EG-CV9B.

126. See Mario Through the Years, supra note 125.

127. See, e.g., David B. Nieborg, Triple-A: The Political Economy of the

Blockbuster Video Game 204–05 (June 22, 2011) (Ph.D. dissertation,

University of Amsterdam) (ResearchGate).

1308 79 WASH. & LEE L. REV. 1285 (2022)

the time will give the consumer the impression that the market

will never get interesting.”

128

The proliferation of sequels coincided with ongoing patterns

of improvement and planned obsolescence in game hardware.

Even without innovations in gameplay or story, technical

advances in graphics allowed console manufacturers and game

publishers to push a narrative of constant improvement: games

just like those you enjoyed before, only better.

129

These advances

are most pronounced with the launch of new console

generations, which push gamers to upgrade roughly every

five years.

130

Constant cycling of sequels and

consoles—we have entered the ninth generation with the

PlayStation 5—nonetheless entails considerable expenses for

consumers and a growing ecological toll.

131

C. Contemporary Sectors

The industry coalesced into roughly its modern form by the

early 2000s.

132

At the forefront are big-budget AAA games that

promise ever-improving graphics and a steady stream of sequels

in well-trodden franchises.

133

Their distinguishing feature,

besides production value, is the dominance of

publishers—publishers decide which games to fund and then

128. Taub, supra note 38.

129. See N

ICHOLS, supra note 62, at 30 (“Reliance on planned obsolescence

through changes in the hardware sector has given the industry two

advantages—a continually changing framework for design and innovation and

a regular source of restimulating dying markets.”); James Newman, Save the

Videogame! The National Videogame Archive: Preservation, Supersession, and

Obsolescence, M/C J. (July 25, 2009), https://perma.cc/Y82U-RUQ5.

130. See J

UUL, supra note 24, at 61 (criticizing the console-era account of

video game history because “in practice video game design changed relatively

little between console generations from Playstation2/Xbox and later”).

131. See N

ICHOLS, supra note 62, at 146 (documenting resultant toxic

waste); Richard Maxwell & Toby Miller, “Warm and Stuffy”: The Ecological

Impact of Electronic Games, in T

HE VIDEO GAME INDUSTRY: FORMATION,

PRESENT STATE, AND FUTURE 179, 185 (Peter Zackariasson & Timothy L.

Wilson eds., 2012) (documenting outsized impact on vulnerable youth and

communities in the Global South).

132. See Dmitri Williams, Structure and Competition in the U.S. Home

Video Game Industry, 4 I

NT’L J. ON MEDIA MGMT. 41, 46–48 (2002); Nieborg,

supra note 127, at 82–83.

133. See Felan Parker, Canonizing Bioshock: Cultural Value and the

Prestige Game, 12 G

AMES & CULTURE 739, 739–40 (2015).

CREATIVITY WITHOUT IP? 1309

delegate production to in-house or external studios.

134

While

these games implicate a range of IP issues, cloning disputes

among AAA developers have become rare.

135

Independent

studios—commonly known as “indie studios”—take a contrary

approach.

136

Rejecting the prevailing trend of publisher control,

indie studios instead play with alternative aesthetics, themes,

and game mechanics.

137

The price of this freedom has been

greater precarity, including vulnerability to a resurgence of

cloning.

1. AAA Productions

Game publishers began using the AAA designation in the

1990s as games became big business.

138

Appropriately enough,

publishers adapted the term from finance. As recent scholarship

explains:

Triple-A or AAA rank games refers to the bond credit

classification system developed by the largest American

credit rating agencies—Moody’s, S&P, and Fitch. On their

scale, the AAA is the highest mark, assigned for the safest

bonds that have the strongest capacity to meet financial

expectations . . . . [W]hat it essentially stands for are games

with large teams, larger budgets, and the largest prospective

returns, aimed as selling the highest possible number of final

products to recoup the astronomical investment: games as

commodities.

139

One might have thought publishers would decline in importance

beginning in the early 2000s as digital distribution eliminated

the direct expenses of publishing and distributing physical game

134. See Alexander Bernevega & Alex Gekker, The Industry of Landlords:

Exploring the Assetization of the Triple-A Game, 17 G

AMES & CULTURE 47,

51–53 (2022).

135. See Marie Dealessandri, Clone Culture and Its Continuous Impact on

Indie Developers, G

AMESINDUSTRY.BIZ (Feb. 18, 2022), https://perma.cc/XBS4-

APPF.

136. For two of the most comprehensive treatments of the indie sector to

date, see J

UUL, supra note 24, and Felan Parker’s meta-analysis of indie-game

scholarship, F

ELAN PARKER, INDIE GAME STUDIES YEAR ELEVEN 1 (2014)

https://perma.cc/QG5S-ULM4 (PDF).

137. See J

UUL, supra note 24, at 12–14.

138. See Bernevega & Gekker, supra note 134, at 48.

139. Id. (emphasis in original) (internal citations omitted).

1310 79 WASH. & LEE L. REV. 1285 (2022)

disks.

140

Publishers have retained their positions, however,

because they hold the capital—and often the trademark

rights—that developers require in order to be competitive in this

environment.

141

AAA game development entails significant production

costs.

142

Studios employ hundreds of programmers and artists,

many dedicated to crafting the increasingly photorealistic

graphics and animation that gamers have come to expect, at an

estimated running expense of $10,000 per month per employee

over several years.

143

Demands have also increased with the

growing popularity of “open worlds” in which players can freely

explore large virtual areas.

144

Some open worlds now exceed 100

square miles of virtual space, requiring developers to populate

every street, alley, and forest.

145

As a result, contemporary AAA

games routinely cost $100 million or more for development

alone.

146

Marketing comprises the other major expense. It is not

unusual for publishers to spend $30 million or more promoting

a new release.

147

Lying between development costs and

marketing costs are the sums paid to celebrities and sports

leagues. Developers have enlisted A-list celebrities as voice

140. See Williams, supra note 132, at 48–49.

141. See Andrew Grantham & Raphael Kaplinsky, Getting the Measure of

the Electronic Games Industry: Developers and the Management of Innovation,

9 I

NT’L J. INNOVATION MGMT. 183, 191–92 (2005); Williams, supra note 132, at

47; Nieborg, supra note 127, at 104–05.

142. See Parker, supra note 133, at 740.

143. See J

ASON SCHREIER, BLOOD, SWEAT, AND PIXELS 3 (2017); Parker,

supra note 133, at 740.

144. See Julie Muncy, Open-World Games Are Changing the Way We Play,

IRED (Dec. 3, 2015, 6:30 AM), https://perma.cc/4LEG-53EA.

145. See id. (“Expansive worlds are expensive and difficult to design, and

as such tend to be filled with repetitive content: cookie-cutter tasks,

collectibles, and encounters designed to fill a game space that might otherwise

be nearly empty.”).

146. As former Sony Interactive CEO Shawn Layden admitted: “[I]t’s just

not sustainable. Major triple-A games in the current generation go anywhere

from $80 million to $150 million or more to build, and that’s before marketing.”

Dean Takahashi, Shawn Layden Interview: The Man with the Crash Bandicoot

T-shirt, V

ENTUREBEAT (June 23, 2020, 8:00 AM), https://perma.cc/64CX-

QELQ.

147. See, e.g., Karyne Levy, The Most Expensive Video Games Ever Made,

NSIDER (July 7, 2014, 9:30 PM), https://perma.cc/CQB9-MHQM.

CREATIVITY WITHOUT IP? 1311

actors for game characters for over a decade, and we have

entered an era where games model in-game characters after

these performers. Notable examples include Gwen Stefani in

Band Hero

148

and Keanu Reeves’ high-profile involvement with

Cyberpunk 2077.

149

These performers must be paid.

150

Likewise,

developers of sports games pay hundreds of millions of dollars

to leagues like the National Football League and Major League

Baseball for licenses to depict their teams and trademarks.

151

Another feature of AAA games is the continuous

proliferation of sequels. Of the worldwide top 100 selling games

of 2018, eighty were sequels, including all but one of the top

twenty.

152

The outlier was fifth-placed Spider-Man, part of the

larger Marvel franchise.

153

When industry participants speak of

obtaining or developing “an IP,” they generally mean

trademarks and related character copyrights needed for sequels

or spin-offs in an established franchise.

154

Publishers maintain

ownership of these rights and license them to studios when the

time comes for future installments.

155

In addition, publishers

have expanded their markets by releasing their games across all

current platforms and for PC. Gamers can purchase the

eighteenth installment in the Call of Duty franchise, for

148. No Doubt v. Activision Publ’g, Inc., 122 Cal. Rptr. 3d 397, 401 (Cal.

Ct. App. 2011).

149. Keanu Reeves’ Newest Role Is in the Video Game Cyberpunk 2077.

Whoa, NPR

(Dec. 10, 2020, 3:56 PM), https://perma.cc/3TG5-F83W.

150. See Kemp Powers, Videogames Give Actors Second Chance, R

EUTERS

(Jan. 31, 2008, 5:45 AM), https://perma.cc/48XP-RJHZ (reporting

compensation of $500,000 or more “to do an hour’s worth of voice work”).

151. See N

ICHOLS, supra note 62, at 132–33 (documenting EA’s $750

million deal “for the exclusive use of ESPN’s logo and images” and similar NFL

deals); Sarah E. Needleman, NBA Inks Billion-Dollar Deal with Maker of 2K

Videogame, W

ALL ST. J. (Jan. 15, 2019, 4:58 PM), https://perma.cc/4JQ5-

XTWG.

152. Global Yearly Chart 2018, VGC

HARTZ, https://perma.cc/J25M-5QKB.

153. Id.

154. While the terminology may confound IP lawyers, insiders use “an IP”

as shorthand for an existing franchise, fantasy world, or set of characters,

whether from a game, film, or television series. See, e.g., Sarah Impey, Part 1:

The Pros and Cons of Using a Licensed IP, G

AMEANALYTICS (Dec. 16, 2020),

https://perma.cc/FW8N-8QLH; Ankit Jain & Richie Hecker, To IP or Not To

IP, That Is the Question, TECHCRUNCH (Nov. 2, 2016, 9:00 PM),

https://perma.cc/4W3R-MHGS.

155. See Nieborg, supra note 127, at 83.

1312 79 WASH. & LEE L. REV. 1285 (2022)

example, for any of five current systems.

156

In parallel, console

manufacturers have moved past the age of lockout codes and

have become liberal in making third-party content, including

indie games, available for purchase.

157

While games have grown increasingly formulaic, AAA

publishers have raced to pioneer new commercialization

strategies. Historically, games were products.

158

Anyone who

wanted to play Super Mario Bros. in 1985 could buy a copy;

having paid once, they could play as often as they liked and

access all game features. Many recent games have moved

instead to the “software as service” model.

159

Rather than

drawing revenues primarily from the sale of finished games,

they seek to monetize each title indefinitely by making desirable

features subscription based, selling downloadable content, or

introducing microtransactions.

160

Two more infamous strategies

are the sale of “loot boxes,” transactions where the player pays

for a randomized chance to obtain in-game goods, and the sale

of “day one DLC,” content already developed by release day that

the player must nonetheless pay extra to access.

161

Many players and critics have voiced dissatisfaction with

current offerings. Some question overreliance on sequels and the

perceived rent-seeking of new business models.

162

Others take

issue with quality directly, complaining of an increase in bugs

156. See Call of Duty: Black Ops Cold War Editions FAQ, ACTIVISION

SUPPORT (Dec. 21, 2020), https://perma.cc/R5V4-Y4PA; see also Barry Ip,

Technological, Content, and Market Convergence in the Games Industry, 3

GAMES & CULTURE 199, 214 (2008).

157. See J

UUL, supra note 24, at 124.

158. See Jason Schreier, Top Video Game Companies Won’t Stop Talking

About ‘Games as a Service’, K

OTAKU (May 30, 2017, 3:40 PM),

https://perma.cc/D6S5-57DC.

159. See id.

160. See id.

161. See generally Allen Copenhaver & O. Hayden Griffin III, White-Collar

Criminality Within the Video Game Industry, 16 G

AMES & CULTURE 783 (2021);

Kishan Mistry, P(l)aying To Win: Loot Boxes, Microtransaction Monetization,

and a Proposal for Self-Regulation in the Video Game Industry, 71 RUTGERS U.

L. REV. 537 (2018); Leon Y. Xiao et al., Regulating Gambling-Like Video Game

Loot Boxes: A Public Health Framework Comparing Industry Self-Regulation,

Existing National Legal Approaches, and Other Potential Approaches,

URRENT ADDICTION REP., no. 9, July 2022, at 163.

162. See, e.g., Bernevega & Gekker, supra note 134, at 57; Mistry, supra

note 161, at 541.

CREATIVITY WITHOUT IP? 1313

and a decline in enjoyability.

163

The decline in quality may be

partly due to the industry’s poor labor conditions. Game

development has come under scrutiny for forcing “crunch” on

workers, as in 80-hour workweeks without overtime pay.

164

Employees also face precarity as they often find themselves

terminated once the crunch is over and a game is released.

165

Little wonder, then, that so many developers dream of becoming

independent and forming their own studios.

2. Indie Games

Indie studios seek to break free from publishers. As with

indie films, articulating what it means to be an indie studio is

more art than science. Financial independence is only part of

the story.

166

Contemporary indie developers also seek cultural

independence as expressed through the rejection, subversion,

and remixing of mainstream trends in gameplay and theme.

167

Interviews indicate that many indie developers seek financial

independence in service of cultural independence—they define

success as having the resources to continue making the games

they want to make.

168

Widespread diffusion of indie games has become possible

through two business innovations. First, digital distribution

through platforms like Steam has allowed indie studios to

market to players without winning the approval of publishers or

shelf space at brick-and-mortar retailers.

169

Second,

crowdfunding platforms like Kickstarter have made it possible

for indie studios to obtain upfront investments without

163. See, e.g., Copenhaver & Griffin, supra note 161, at 788 (“[A]fter

consumers have complained about misleading or broken games, governments

and regulatory bodies have taken actions indicating that these institutions

may be taking these issues more seriously.”); Barry Ip & Gabriel Jacobs,

Quality in the Games Industry: An Analysis of Customer Perceptions, 23 I

NT’L

J. QUALITY & RELIABILITY MGMT. 531, 545 (2006).

164. See generally S

CHREIER, supra note 143.

165. See generally id.

166. See J

UUL, supra note 24, at 12–14, 90–91.

167. Id. at 12–14.

168. See Jennifer R. Whitson et al., The Missing Producer: Rethinking

Indie Cultural Production in Terms of Entrepreneurship, Relational Labour,

and Sustainability, 24 E

UROPEAN J. CULTURAL STUD. 606, 611 (2018).

169. See J

UUL, supra note 24, at 123–24.

1314 79 WASH. & LEE L. REV. 1285 (2022)

publishers.

170

In practice, many players and studios treat

crowdfunding pledges as pre-sales; donors often receive early

access to the game or other perks such as thanks or cameo

appearances in the game.

171

Success for indies depends on marketing, albeit marketing

of a different sort than in the AAA sector. Indie games strive to

stand out not with the sleekest graphics, but by establishing

themselves as more authentic than mainstream commercial

offerings.

172

How can a game be validated as authentic? More

concretely, how is a game to stand out amidst more than 8000

games released each year on Steam?

173

The answers lie in

impressing the actors who perform cultural intermediation in

this space—the individuals and institutions to whom the

community looks for validation.

174

To impress these intermediaries requires meeting

community expectations regarding game design and acceptable

copying.

175

The indie community craves innovation.

176

Sometimes this means experimenting with new art styles or

themes within established genres;

177

other times, this means

experimenting at the level of gameplay itself to introduce novel

game mechanics.

178

Community norms permit copying within

170. See SCHREIER, supra note 143, at 6–7 (tracing the “crowdfunding

revolution” to the 2009 campaign for Double Fine Adventure).

171. See id.

172. J

UUL, supra note 24, at 33–34.

173. See J. Clement, Number of Games Released on Steam Worldwide from

2004 to 2021, STATISTA (June 7, 2021), https://perma.cc/FM9T-M78W.

174. See, e.g., Parker et al., supra note 45, at 1955; Matthew E. Perks et

al., Autonomy, Integration, and the Work of Cultural Intermediation in Indie

Games, 6 M

EDIA INDUS., no. 2, 2019, at 18, 23; Whitson et al., supra note 168,

at 611.

175. See Perks et al., supra note 174, at 30.

176. See J

UUL, supra note 24, at 6 (“Independent and experimental games

contain a fundamental newness: they are about playing in new ways, solving

new problems, solving old problems for new reasons, being free to ignore

something we used to have to do, or framing video games in a new way . . . .”);

Andreas Jahn-Sudmann, Innovation NOT Opposition: The Logic of Distinction

of Independent Games, E

LUDAMOS, Mar. 2008, at 5, 7–8 (“[I]ndependent game

designers . . . pointedly work on alternative concepts on the configurational

level.”).

177. J

UUL, supra note 24, at 42, 150.

178. Id. at 92, 187.

CREATIVITY WITHOUT IP? 1315

limits.

179

Game developers recognize their craft has improved

over the past fifty years because they have had room to build on

what has come before.

180

The implicit tradeoff for borrowing,

however, is the expectation that the second comer will add

something new and avoid copying any facet of the game in its

entirety.

181

The second game must be distinct enough that

players would not regard the two as direct substitutes.

182

Indie games’ aesthetics and subject matter also differ from

those of AAA games. Indie studios lack the budgets to

distinguish themselves by having the most photorealistic 3D

graphics.

183

They have instead embraced “retro” aesthetics with

intentionally pixelated graphics or experimental styles that

evoke pre-digital art forms, like 2D cartoon animation or

impressionist painting.

184

Many also experiment with themes

and subject matter seldom featured in mainstream games. On

one side are survival-horror games, designed to be emotionally

unsettling;

185

on the other are those about working through

emotions productively, for example, grappling with depression

or overcoming enemies without violence.

186

Each design decision

provides indie studios with a chance to innovate and to carve a

distinctive niche in the market.

Despite these aspirations, the reality of indie development

is harsh. Some games become breakout hits—Minecraft and

Stardew Valley both originated with solo developers

187

—but

countless others never find their audience. Moreover, indie

developers do not face consistently better working conditions.

Having eschewed traditional publishers, indie studios must

179. See Lies van Roessel & Christian Katzenbach, Navigating the Grey

Area: Game Production Between Inspiration and Imitation, C

ONVERGENCE,

Apr. 2020, at 403, 408.

180. See id. at 416.

181. See id. at 408.

182. See id.

183. J

UUL, supra note 24, at 6.

184. Id. at 56.

185. See Katarzyna Marak, Independent Horror Games Between 2010 and

2020: Selected Characteristic Features and Discernible Trends, 29 I

MAGES

PECIAL ISSUE) 175, 182 (2021).

186. See J

UUL, supra note 24, at 139–40, 160; Jahn-Sudmann, supra note

176, at 9.

187. See S

CHREIER, supra note 143, at 79.

1316 79 WASH. & LEE L. REV. 1285 (2022)

carry out the networking and logistical work a publisher would

have otherwise handled. This administrative burden falls

unevenly, often along gendered lines, and goes unappreciated.

188

Indie workers also face crunch. Although the deadlines are

imposed by the reality of small studios’ financial needs rather

than by publishers, the burden of unhealthy and unrealistic

work hours once again weighs on employees.

189

Compounding this pressure, indie studios face real risks of

copying. The rise of indie games coincided with the emergence

of mobile gaming on devices like the iPhone.

190

Mobile

developers such as Zynga attained notoriety in the early 2010s

for copying games created by smaller developers.

191

The risk was

especially acute for games with simple graphics and mechanics.

Take the indie game Threes!. Its developers spent months

perfecting its simple mechanics: the player combines numbered

tiles on a four-by-four grid to create ever higher numbers.

192

They then released it for the nominal price of $1.99.

193

Days

later, a 19-year-old student released 2048 with practically

identical mechanics and layout:

194

188. See Perks et al., supra note 174, at 25–26 (observing that cultural

intermediaries, especially women in the field, must perform “emotional labor

management” as an aspect of their job); see also Laine Nooney, The Uncredited:

Work, Women, and the Making of the U.S. Computer Game Industry, F

EMINIST

MEDIA HIST., Jan. 2020, at 119, 126–27 (documenting marginalization of

women’s administrative and emotional labor beginning with the earliest days

of the computer gaming industry).

189. See, e.g., Amanda Peticca-Harris et al., The Perils of Project-Based

Work: Attempting Resistance to Extreme Work Practices in Video Game

Development, 22 O

RG. 570, 574 (2015); Whitson et al., supra note 168, at 613.

190. See Adrian Wright, It’s All About Games: Enterprise and

Entrepreneurialism in Digital Games, N

EW TECH. WORK & EMP., Mar. 2015, at

32, 38.

191. See Phillips, supra note 46, at 149. Copying popular games is not,

however, exclusive to the mobile format, as witnessed in the wave of clones

following the 2020 cross-platform indie hit Hades. See, e.g., Ari Notis, Myth:

Gods of Asgard Sure Looks Like Hades, K

OTAKU (June 22, 2021, 3:45 AM),

https://perma.cc/VY7M-8CJX.

192. See Kyle Vanhemert, Design Is Why 2048 Sucks, and Threes Is a

Masterpiece, W

IRED (May 7, 2014, 6:38 AM), https://perma.cc/7MM3-VNHG.

As one analyst concludes: “Creating a game this minimal is hard.” Ben

Kuchera, Why It Took a Year to Make, and Then Break Down, an Amazing

Puzzle Game, P

OLYGON (Feb. 6, 2014, 1:01 PM), https://perma.cc/QA5F-2MKL.

193. Kuchera, supra note 192.

194. See van Roessel & Katzenbach, supra note 179, at 412.

CREATIVITY WITHOUT IP? 1317

Figure 3: Threes! and 2048

Threes!, left; 2048, right

2048 eclipsed the original despite being regarded as inferior by

insiders. The developer tweaked 2048 to be easier, which was

less satisfying to game aficionados but more appealing to mass

audiences.

195

The developer of 2048 also released the game for

free and collected revenues from ads—at the time a novel

business model—effectively dooming the game that inspired

it.

196

Though copying was undeniable, litigation in these

clone-heavy years was rare. One of the few successful

anti-cloning suits from the mobile era came not from an indie

studio but the makers of Tetris, as detailed below.

II. L

IMITS OF COPYRIGHT FOR GAME DESIGN

The resurgence of clones in the context of indie games

prompts a question: Why are these not open-and-shut cases of

touches all aspects of our lives, especially our engagement with

195. See Vanhemert, supra note 192; van Roessel & Katzenbach, supra

note 179, at 412.

196. See van Roessel & Katzenbach, supra note 179, at 413.

1318 79 WASH. & LEE L. REV. 1285 (2022)

digital media.

197

In our experiences with video games and other

software we are accustomed to overlapping IP and contractual

restrictions via terms-of-use and end-user-license

agreements.

198

These restrictions, however, are aimed at piracy

and consumer behavior. Although copyright and related

protections have obvious applications against bootlegging,

different rules are at play when competitors copy one another to

make new games. Copyright in the latter context leaves ample

space for cloning.

A. Copyright Coverage

Copyrights can protect video game plotlines and characters

as well as discrete game assets like art, music, and underlying

code.

199

This means that a competitor cannot copy games

wholesale nor directly replicate graphics and programming;

making a clone generally requires starting from the ground up.

Moreover, copyright sets limits on such duplication by

precluding creation of derivative works that are “substantially

similar.”

200

The prohibition on derivative works is nonetheless subject

to major caveats. Copyright’s goal of promoting creativity

requires leaving room for subsequent creators.

201

denies protection entirely to ideas, systems, and methods of

operation, and it limits coverage of stock characters and other

necessary elements.

202

The collective impact of these limitations

constrains game developers’ ability to assert copyright against

clones.

197. See BJ Ard, More Property Rules Than Property? The Right To

Exclude in Patent and Copyright, 68 E

MORY L.J. 685, 688 (2019) [hereinafter

Ard, More Property Rules]; Ard, Notice and Remedies, supra note 33, at 322.

198. Ard, Notice and Remedies, supra note 33, at 334; Rub, supra note 33,

at 726.

199. See, e.g., MDY Indus., LLC v. Blizzard Ent., Inc., 629 F.3d 928, 952

(9th Cir. 2010) (recognizing copyright in game assets like “the roar a particular

monster makes” or “a virtual image of that monster” (citation omitted)).

200. See Skidmore v. Led Zeppelin, 952 F.3d 1051, 1064 (9th Cir. 2020).

201. See, e.g., Google LLC v. Oracle Am., 141 S. Ct. 1183, 1195 (2021).

202. See id. at 1196.

CREATIVITY WITHOUT IP? 1319

B. Character Copyright

203

The key

criterion is whether the character has been “distinctively

delineated.”

204

Courts applying this standard have extended

protection to characters from Mickey Mouse

205

to Rocky

Balboa,

206

Batman,

207

and even the Batmobile (apart from

Batman)

208

because they are distinct in appearance and

personality.

209

This standard has historically favored characters in visual

media, like comic books and films, relative to those who appear

only in prose.

210

Video game characters would seem to enjoy the

same status. While not phrased in terms of character copyright,

the Pac-Man case illustrates this point.

211

Though his

personality was thin, Pac-Man was visually distinctive.

212

Competitors could not lawfully release a game “which made [its

central character] substantially similar to PAC-MAN”—a

mouth-shaped hero chased by “ghost monsters”—without

213

Subsequent characters like Mario have

become increasingly elaborate in their appearance and

backstory and therefore even more squarely protectable.

214

203. See 1 NIMMER ON COPYRIGHT §§ 2.09[G], 2.12[A][1].

204. Id. § 2.12.

205. Walt Disney Prods. v. Air Pirates, 581 F.2d 751, 757–58 (9th Cir.

1978).

206. Anderson v. Stallone, 11 U.S.P.Q.2d 1161, 1166 (C.D. Cal. 1989).

207. DC Comics v. Reel Fantasy, 696 F.2d 24, 27 (2d Cir. 1982).

208. DC Comics v. Towle, 802 F.3d 1012, 1024–25 (9th Cir. 2015).

209. See Warner Bros., Inc. v. Am. Broad. Cos., 720 F.2d 231, 241 (2d Cir.

1983) (“In determining whether a character in a second work infringes a

cartoon character, courts have generally considered not only the visual

resemblance but also the totality of the characters’ attributes and traits.”).

210. See Walt Disney Prods., 581 F.2d at 755 (“[I]t is difficult to delineate

distinctively a literary character.”).

211. See Atari, Inc. v. N. Am. Philips Consumer Elecs. Corp., 672 F.2d 607,

617–18 (7th Cir. 1982); see supra notes 83–91 and accompanying text.

212. See Atari, 672 F.2d at 617.

213. Id. at 617–18.

214. Characters embodying common tropes may nonetheless be protected

only against literal copying. See infra Part II.E. Nintendo thus prevailed when

Universal asserted that Nintendo’s gorilla Donkey Kong infringed King Kong’s

Cir. 1984). Nintendo subsequently named a new, now-popular character

1320 79 WASH. & LEE L. REV. 1285 (2022)

the right to create sequels. Courts have consistently found

unauthorized sequels in literature and visual media to be

infringing.

215

At least one video game case has reached the same

conclusion.

216

In a dispute over the first-person shooter Duke

Nukem 3D, the Ninth Circuit found infringement likely when an

unauthorized third party released new playable maps:

A copyright owner holds the right to create sequels, and the

stories told in the N/I MAP files are surely sequels, telling

new (though somewhat repetitive) tales of Duke’s fabulous

adventures. A book about Duke Nukem would infringe for

the same reason, even if it contained no pictures.

217

Plot protection beyond sequels is more limited. While many

clones are so similar that copying is undeniable, this replication

only becomes actionable when it targets protected elements like

specific characters and plots.

218

Similarities are non-actionable

when they flow from the same basic idea or underlying tropes.

219

C. Idea-Expression Dichotomy

The idea-expression dichotomy is a bedrock principle

establishing that copyright covers only the expression of an idea,

not the idea itself. This principle drove the court’s reasoning in

the Asteroids-Meteors case.

220

As the court observed, the games

shared at least twenty-two “similar or identical” design features

and “[i]t seem[ed] clear that defendants based their game on

plaintiff’s copyrighted game.”

221

The court nonetheless held that

“Kirby” in honor of attorney John Kirby, who represented Nintendo against

Universal. Tim Turi, Miyamoto Talks Wii U, Zelda, and Nintendo’s Past, G

AME

INFORMER (June 17, 2011, 11:00 AM), https://perma.cc/37FL-ZBJA.

215. See, e.g., Salinger v. Colting, 607 F.3d 68, 83 n.11 (2d Cir. 2010)

(finding infringement likely in an unauthorized Catcher in the Rye sequel

regardless of “whether Salinger own[ed] a valid copyright in the [main]

character”).

216. See generally Micro Star v. Formgen Inc., 154 F.3d 1107 (9th Cir.

1998).

217. Id. at 1112 (citation omitted).

218. See 4 N

IMMER ON COPYRIGHT § 13.03[B][2] (2022).

219. See id.

220. See Atari, Inc. v. Amusement World, Inc., 547 F. Supp. 222, 230 (D.

Md. 1981).

221. Id. at 224–25, 230.

CREATIVITY WITHOUT IP? 1321

there was no infringement because the similarities resulted

from both games starting with “the idea of a game involving a

spaceship combatting space rocks.”

222

Some specific game details may have crossed the line from

idea into expression, in which case the idea-expression

dichotomy would not have applied directly. To bridge the gap,

the court also invoked the merger doctrine: “[W]hen an idea is

such that any use of that idea necessarily involves certain forms

of expression, one may not copyright those forms of expression,

because to do so would be in effect to copyright the underlying

idea.”

223

Accordingly, even though many elements of the two

games’ expression were the same, there was no infringement

because “[t]here are certain forms of expression that one must

necessarily use in designing a video game in which a player

fights his way through space rocks and enemy spaceships.”

224

The idea-expression dichotomy and the merger doctrine also

implicate gameplay,

225

though many aspects of gameplay are

better understood from the perspective of copyright’s

systems-methods exclusion.

D. Systems-Methods Exclusion

226

In caselaw, these doubts have often

found expression in terms of the idea-expression dichotomy,

conceptualizing game rules as unprotectable “ideas” and

ostensibly expressive game elements as unprotectable because

they have “merged” with those ideas.

227

However, the

222. Atari, Inc., 547 F. Supp. at 229 (emphasis added).

223. Id. at 228 (emphasis in original).

224. Id. at 229.

225. See, e.g., Capcom U.S.A., Inc. v. Data E. Corp., No. C 93-3259, 1994

WL 1751482, at *7–8 (N.D. Cal. Mar. 16, 1994) (excluding “control sequences”

due to merger of idea and expression).

226. See, e.g., 1 N

IMMER ON COPYRIGHT § 2A.14 (2022); Bruce E. Boyden,

Games and Other Uncopyrightable Systems, 18 G

EO. MASON L. REV. 439, 440

(2011); Seaman & Tran, supra note 29, at 1634.

227. See, e.g., Data E. U.S., Inc. v. Epyx, Inc., 862 F.2d 204, 209 (9th Cir.

1988) (finding the various mechanical elements of a karate game, such as types

of kicks and punches, merge with the idea of a martial arts combat game

therefore making the mechanics inseparable from the idea); Atari, Inc., 547 F.

Supp. at 229.

1322 79 WASH. & LEE L. REV. 1285 (2022)

idea-expression dichotomy has engendered confusion over

where to draw the line, particularly for software.

228

As Judge

Learned Hand once observed, “Nobody has ever been able to fix

that boundary, and nobody ever can.”

229

This confusion could be

avoided by attending to another limiting doctrine in copyright:

the exclusion of coverage for functional elements including any

“system” or “method of operation.”

230

1. Scope of the Exclusion

Many cases where courts invoked the idea-expression

dichotomy are better understood as exclusion-of-method cases.

Both principles are encapsulated in section 102(b) of the

of operation” from copyright protection.

231

Likewise, both

principles stem from the foundational case Baker v. Selden.

232

Although Baker is credited with introducing the idea-expression

dichotomy,

233

the “idea” in Baker was an approach to accounting,

specifically, “a system of book-keeping.”

234

The Court’s rationale

for denying copyright did not depend on the metaphysical

distinction between “idea” and “expression”—the opinion did not

even use the word “idea” in this context.

235

Instead, the Court

held that such a system “is the province of letters-patent, not

236

Less archaically, it held that copyright is not

228. See Pamela Samuelson, Why Copyright Law Excludes Systems and

Processes from the Scope of Its Protection, 85 T

EX. L. REV. 1921, 1976–77

(2007).

229. Nichols v. Universal Pictures, Corp., 45 F.2d 119, 121 (2d Cir. 1930).

But see Bruce E. Boyden, Learned Hand: You’re Reading Him Wrong, M

ARQ.

UNIV. L. SCH.: MARQ. UNIV. L. SCH. FAC. BLOG (Apr. 13, 2018),

https://perma.cc/FQH2-UVD3 (“Hand saw the inexpressible nature of the test

for infringement as, not a problem, but rather an indication it was a task

tailor-made for judicial discretion.”).

230. See 17 U.S.C. § 102(b).

231. Id.

232. 101 U.S. 99 (1879).

233. See id. at 103; 1

NIMMER ON COPYRIGHT § 2A.04(A)(2) (2022). But see

Samuelson, supra note 228, at 1924 (questioning this common conception).

234. Baker, 101 U.S. at 100.

235. Samuelson, supra note 228, at 1226 (“[T]he Supreme Court’s decision

in Baker used the word ‘ideas’ only twice, and in neither context was the Court

saying that copyright did not protect abstract ideas.”).

236. Baker, 101 U.S. at 102.

CREATIVITY WITHOUT IP? 1323

meant to protect functional systems or similarly utilitarian

subject matter; these must be protected by patent or not at all.

237

This ensures more rigorous evaluation.

238

It also pares the term

of protection down from copyright’s life of the author plus

seventy years to patent’s more modest twenty years total.

239

Subsequent decisions likewise exclude methods and

systems even though many have articulated their holdings in

terms of the idea-expression dichotomy and merger.

240

Take

Morrissey v. Proctor & Gamble Co.

241

This case dealt with a

sweepstakes—a game of chance.

242

The plaintiff sued the

defendant for “copying, almost precisely” the published rules for

its competition.

243

The court found that “the substance of the

contest was not copyrightable,” citing Baker.

244

But the opinion

was ambiguous regarding the precise doctrine at work. For

decades, the conventional understanding was that Morrissey

stood for the merger doctrine, which applies “when there is only

one or but a few ways of expressing an idea.”

245

Revisiting the

case and the import of Baker opens another reading:

sweepstakes rules are uncopyrightable because they specify a

method for operating a system.

The same logic extends to non-sweepstakes games, whether

players operate them manually (board games) or digitally (video

games). Indeed, one introductory text for game designers defines

games as “machines for playing with,” and game rules as

“mechanics” to “be assembled into systems.”

246

systems-methods exclusion thus prevents copyright owners

from monopolizing game mechanics through a backdoor

237. Id.

238. Id.

239. See 17 U.S.C. § 302(a) (copyright duration); 35 U.S.C. § 154(2) (patent

term). Some video games constitute “works made for hire,” in which case

240. See Samuelson, supra note 228, at 1942.

241. 379 F.2d 675 (1st Cir. 1967).

242. Id. at 676.

243. Id.

244. Id. at 678.

245. P

ETER S. MENELL ET AL., 2 INTELLECTUAL PROPERTY IN THE NEW

TECHNOLOGICAL AGE: 2020, 576 (2020).

246. R

OBERT ZUBEK, ELEMENTS OF GAME DESIGN 2, 5 (2020) (emphasis in

original).

1324 79 WASH. & LEE L. REV. 1285 (2022)

patent.

247

As one scholar argues in the context of games, it also

precludes the copyright owner from claiming creative efforts

properly attributed to the player.

248

And, again, it avoids the

confusion of trying to distinguish idea from expression.

249

2. The Tetris Decision

Tetris Holding, LLC v. Xio Interactive, Inc.

250

merits

discussion because it is the most significant example of a court

recognizing copyright protection in game mechanics.

251

Its

conclusion that practically verbatim copying may constitute

infringement is defensible, but its analysis of game mechanics

252

is flawed.

253

The copyright owner for the famous 1984 puzzle

247. See Baker v. Selden, 101 U.S. 99, 102 (1879).

248. See Boyden, supra note 226, at 442 (“Games . . . do not communicate

expression to the players so much as provide a forum for the gameplay

experience to occur.”); see also B

OGOST, supra note 96, at ix (arguing the

expressive form distinctive to games is “procedural rhetoric, the art of

persuasion through rule-based representations and interactions” (emphasis in

original)).

249. See Samuelson, supra note 228, at 1974–77.

250. 863 F. Supp. 2d 394 (D.N.J. 2012).

251. See John Kuehl, Video Games and Intellectual Property: Similarities,

Differences, and a New Approach to Protection, 7 C

YBARIS 313, 329 (2016).

252. Tetris Holding, 863 F. Supp. 2d at 411–15.

253. Notwithstanding the general trend against copyright enforcement

with respect to game mechanics, the risk of another decision like Tetris

Holding may give copyists pause. See Kuehl, supra note 251, at 332 (“[Tetris

Holding] was also viewed as a possible killing blow to ‘knock-off’ games:

improvements in technology significantly expand the creative limits of game

developers, developers of cloned video games may have diminishing success in

arguing that their wholesale copying is permissible because expression has

merged with idea.” (citation omitted)). Yet remarkably few cases have followed

the same logic or expressly rebutted Tetris Holding in the decade since that

decision. The closest to follow it was the Spry Fox case, decided the same year,

where the court denied a motion to dismiss litigation involving Triple Town

and Yeti Town, two games with similar underlying mechanics; it settled

without setting precedent. See Dean, supra note 26, at 1267–68 (“Although

Spry Fox only came up on a motion to dismiss, the case is significant for the

fact that, unlike the identical copying in Tetris Holding, the court found

substantial similarity plausible even though Yeti Town’s artwork and sound

elements were readily distinguishable from Triple Town’s.”); Spry Fox LLC v.

LOLApps, No. 2:12-cv-00147, 2012 U.S. Dist. LEXIS 153863, at *22 (W.D.

Wash. Sept. 18, 2012). In my discussions with defenders and critics of Tetris

Holding, the one point of common ground was surprise that it did not set off

decisions either following or expressly rejecting it.

CREATIVITY WITHOUT IP? 1325

game Tetris sued the maker of the mobile game Mino.

254

The

defendant’s game was practically identical in gameplay and

shared similarities beyond those dictated by game rules.

255

The

court observed, for example, that the defendant chose to use

“virtually identical” colors for pieces of the same shape, and that

“shading and gradation of color are used in substantially similar

ways to suggest light is being cast on the pieces.”

256

The opinion

included side-by-side comparisons:

Figure 4: Illustration from Tetris Holding v. Xio

Tetris pieces on left of each pair; Mino pieces on right

Other visual similarities included the pieces changing color once

they locked in place and the gameboard filling with squares from

top to bottom upon game over.

257

The court ruled for the plaintiff

based on near-total copying—the court could discern no

meaningful innovation in the defendant’s copying of Tetris’s

gameplay and stylistic choices.

258

The court’s analysis of gameplay elements within the

idea-expression framework was nonetheless problematic. It

defined the high-level “idea of Tetris” as “fitting different shaped

pieces together to form complete lines,” and treated any

decisions implementing the idea as expression.

259

It found, for

254. Tetris Holding, 863 F. Supp. 2d at 396–97.

255. See id. at 410.

256. Id. at 410, 411 n.11.

257. See id. at 413.

258. See id. at 410–11, 416 (finding both games styles and gameplay nearly

indistinguishable). Finding liability against copying without meaningful

innovation also aligns with game-developer norms, which permit copying only

if the copyist adds something new. See supra notes 175–182 and accompanying

text.

259. Tetris Holding, 863 F. Supp. 2d at 411. A later decision dealing with

a card game drew a more defensible line, extending protection to the artwork

and characters for a game but excluding it as to the special abilities and other

game mechanics associated with each character. See generally DaVinci

Editrice S.R.L. v. Ziko Games, LLC, 183 F. Supp. 3d 820 (S.D. Tex. 2016).

1326 79 WASH. & LEE L. REV. 1285 (2022)

example, that Tetris’s choice of shapes was protectable

expression.

260

Likewise, it determined that Tetris’s use of a

playing field taller than it was wide was arguably an idea, but

Tetris’s use of a playing field specifically twenty units high by

ten units wide was expression.

261

One could contest the court’s

findings on each element, but the core difficulty for this mode of

analysis is the lack of clear parameters for setting the correct

level of abstraction for distinguishing idea from expression.

262

Shifting the frame to ask instead whether a particular

design choice was necessary to carry out the system or method

of the game would clarify the analysis. The interface between

patent and copyright is instructive: copyright does not cover

elements that constitute patentable subject matter

263

and

issuance of a patent for a system suggests it is functional and

should be excluded from copyright.

264

This presents obstacles for

puzzle games like Tetris because patents have been granted on

puzzles and methods for solving them.

265

Tetris Holding itself

references a patent for gameplay in the puzzle game Dr.

Mario.

266

Although the court leveraged this patent to argue

there are other ways to express the rules of Tetris, the better

argument is that the patent on similar gameplay elements

suggests that analogous elements in Tetris should be excluded

as functional.

Prior litigation involving non-digital puzzles bolsters the

conclusion. The most famous puzzle patent is the Nichols patent

for a 2x2 puzzle cube and a method for solving it,

267

which the

inventor successfully asserted against the makers of the

260. See Tetris Holding, 863 F. Supp. 2d at 411.

261. See id. at 413.

262. See generally Margot E. Kaminski & Guy A. Rub, Copyright’s

Framing Problem, 64 UCLA

L. REV. 1102 (2017).

263. See 1 N

IMMER ON COPYRIGHT § 2A.07[D][4][c][iii] (2022).

264. See id. § 2A.07[D][5] (explaining “to the extent that a utility patent

covers a given production, that fact alone indicates that it is functional, and

hence outside the boundaries of vindication under copyright laws”); Pamela

Samuelson, Strategies for Discerning the Boundaries of Copyright and Patent

Protections, 92 N

OTRE DAME L. REV. 1493, 1531 (2017).

265. See, e.g., U.S. Patent No. 3,655,201 (filed Mar. 4, 1970).

266. See Tetris Holding, LLC v. Xio Interactive, Inc., 863 F. Supp. 2d 394,

412 (D.N.J. 2012) (referencing U.S. Patent No. 5,265,888 (filed Feb. 19, 1993)).

267. See U.S. Patent No. 3,655,201 (filed Mar. 4, 1970).

CREATIVITY WITHOUT IP? 1327

Rubik’s cube.

268

The original 3x3 Rubik’s cube was held

non-infringing—the change in dimensions meant the puzzle and

methods for solving it differed from those claimed in the

patent.

269

The lesser-known Rubik’s Pocket Cube, however, was

held to infringe because it embodied the 2x2 design.

270

Patent

availability for those elements of a puzzle that determine the

method of play and viable solutions indicates these elements fall

outside copyright.

271

Bringing this logic back to Tetris Holding, asking whether

something like a twenty by ten playing field is an “abstract

idea”

272

is needlessly metaphysical. Asking instead whether

those dimensions impact the method of play or potential

solutions makes the inquiry concrete. The fact that different

dimensions would require different strategies suggests these

mechanics are functional and therefore non-copyrightable: a

taller playing field would allow more blocks to pile up, making

the puzzle easier to solve. A narrower playing field would allow

the player to complete the puzzle with fewer blocks but would

also require more careful planning, changing the method of play

even more fundamentally. Tetris’s selection of playing pieces

falls outside copyright for similar reasons. The game utilizes all

possible combinations of four blocks connected end to end.

273

remove or add any shapes would change the nature of the puzzle

and the methods for solving it.

274

268. See Moleculon Rsch. Corp. v. CBS, Inc., 793 F.2d 1261, 1273 (Fed. Cir.

1986).

269. See id. at 1271–72.

270. See id. at 1272.

271. See supra note 264; see also Laureyssens v. Idea Grp., Inc., 964 F.2d

131, 142 (2d Cir. 1992) (observing that defendant’s change to the puzzle design

“result[ed] in a qualitatively different challenge to the puzzler”).

272. See supra note 261 and accompanying text.

273. Eric Adler, A Game of Clones: Video Game Litigation Illustrated,

PNW

STARTUP LAW. (July 10, 2014), https://perma.cc/SL36-TE65.

274. As one observer explained, albeit in the language of the

idea-expression dichotomy:

1328 79 WASH. & LEE L. REV. 1285 (2022)

E. Scènes à Faire

Scènes à faire shields video games from liability for covering

typical game subject matter because it precludes copyright

owners from suing over the use of tropes and standard

conventions of a genre.

275

It establishes that no film studio can

claim the exclusive right to produce Westerns in which good

guys wear white hats and bad guys wear black hats, just as no

game developer can stop competitors from including crosses,

stakes, or baroque costuming in a vampire-hunter game.

276

The

doctrine also applies to technical or stylistic conventions—in the

Pac-Man case, for example, the court refused to find

infringement for copying “standard game devices” like a maze,

scoring table, or the use of dots to score points.

277

Courts often use scènes à faire to deny infringement in

games depicting similar real-world activities. In Data East v.

Epyx,

278

for example, the Ninth Circuit dismissed the

similarities between two karate-fighting games because “the

visual depiction of karate matches is subject to the constraints

inherent in the sport of karate itself.”

279

The Street Fighter II

case extended the logic further: the copyright owner could not

assert protection over stereotypical martial arts garb or special

moves regardless of whether they appeared in the real world or

[T]he 7 basic Tetris shapes seem more like idea than expression. There are

only 7 tetrominos. Selecting all of them seems like embodiment of the idea

of tetrominos. Imagine a falling puzzle game with trominos (left) or

pentominos (right). Sure it’s possible, but would you really want to play it?

Id. (emphasis in original).

275. See Apple Comput., Inc. v. Microsoft Corp., 35 F.3d 1435, 1444 (9th

Cir. 1994) (“[W]hen similar features in a videogame are as a practical matter

indispensable, or at least standard, in the treatment of a given [idea], they are

treated like ideas and are therefore not protected by copyright.” (internal

quotation omitted)).

276. Cf. Davis v. Walt Disney Co., 393 F. Supp. 2d 839, 847 (D. Minn. 2005)

(identifying “superhero capes, leotards, masks, chest emblems, boots, belts,

and flared gloves” as stock elements), aff’d on other grounds, 430 F.3d 901 (8th

Cir. 2005).

277. Atari, Inc. v. N. Am. Philips Consumer Elecs., 672 F.2d 607, 617 (7th

Cir. 1982); 4 N

IMMER ON COPYRIGHT § 13.03[B][4] (2022) (explaining that

“certain patterns and situations are bound to recur” across different works

because there are “‘incidents, characters or settings which are as a practical

matter indispensable, or at least standard, in the treatment of a given topic”).

278. 862 F.2d 204 (9th Cir. 1988).

279. See id. at 209.

CREATIVITY WITHOUT IP? 1329

only in comic books.

280

Similar results followed in litigation

involving golf arcade games, where the court invoked scènes à

faire to excuse similarities inherent in depicting the same

underlying sport, in the use of standard menu screens, and even

in both games’ inclusion of commentary to “mimic

condescending real television golf announcers.”

281

Many conventions could arguably be excluded as ideas or

game rules; indeed, when courts exclude an element for being

“indispensable” they seldom clarify whether they mean

indispensable in the sense of merger, finding there are only so

many ways to express the idea, or scènes à faire, finding the

elements standard for the genre.

282

Scènes à faire is nonetheless

useful because it provides a mechanism for excluding these

elements without the line-drawing problems of the

idea-expression dichotomy.

283

F. Fair Use

Fair use is the best-known and mostly widely discussed

doctrine in copyright.

284

It requires balancing four factors: (i) the

purpose and character of the use, (ii) the nature of the

copyrighted work, (iii) the amount and substantiality used, and

(iv) the effect on the potential market for the work.

285

Fair use

was instrumental in the reverse engineering of video game

280. Capcom U.S.A., Inc. v. Data E. Corp., No. C 93-3259, 1994 WL

1751482, at *13 (N.D. Cal. Mar. 16, 1994) (“[T]he Court finds that even a

majority of the moves that are allegedly special and fanciful are ultimately

unprotectable either because they are unoriginal scenes-a-faire or have not

actually been copied by Data East.”); see supra notes 119–123 and

accompanying text.

281. Incredible Techs., Inc. v. Virtual Techs., Inc., 400 F.3d 1007, 1015 (7th

Cir. 2005).

282. See, e.g., Data East, 862 F.2d at 209 (introducing both doctrines before

finding similarities between two karate games “inseparable from,

indispensable to, or even standard treatment of the idea of the karate sport”

(emphasis in original)); Atari, Inc. v. Amusement World, 547 F. Supp. 222,

228–29 (D. Md. 1981) (introducing both doctrines before concluding “these

similarities are inevitable”).

283. See supra Part II.C.

284. See 4 N

IMMER ON COPYRIGHT § 13.05 (2022) (“[I]ndeed, more law

review articles are published about fair use than cases actually adjudicating

the subject!”).

285. 17 U.S.C. § 107.

1330 79 WASH. & LEE L. REV. 1285 (2022)

consoles to create compatible games.

286

Despite its prominence

elsewhere in copyright, however, fair use has not been central

to cloning disputes.

Fair use would not assist defendants in most cloning cases

because courts tend to analyze the four factors through

the lens of transformative use.

287

Where the work is

transformative—meaning it “adds something new, with a

further purpose or character, altering the first with new

expression, meaning, or message”—courts tend to excuse such

use as fair.

288

While transformativeness is not strictly required

to establish fair use,

courts have become reluctant to find fair

use without it.

289

Transformativeness presents an obstacle for clones because

the act of cloning implies a lack of transformative purpose.

Developers create these games for the same purpose as the

originals, namely, to provide entertainment for players who

enjoy that type of game.

290

Unfortunately for these imitators,

transformation of purpose is the most essential factor for

establishing transformative use.

291

In relevant caselaw, fair use

has been denied in many cases dealing with reference guides or

similar add-ons for popular television shows or movies because

286. See generally Sony Comput. Ent., Inc. v. Connectix, Corp., 203 F.3d

596 (9th Cir. 2000); Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir.

1992). See also supra notes 110–118 accompanying text.

287. See Neil Weinstock Netanel, Making Sense of Fair Use, 15 L

EWIS &

CLARK L. REV. 715, 734 (2011); 4 NIMMER ON COPYRIGHT § 13.05[A][1][b] (2022).

288. See Campbell v. Acuff-Rose Music, 510 U.S. 569, 579 (1994).

289. Empirical analysis of all decisions discussing transformativeness

shows that defendants prevailed in fewer than 10% of decisions where the use

was found non-transformative. Clark D. Asay et al., Is Transformative Use

Eating the World?, 61 B.C. L. R

EV. 905, 942 (2020).

290. Instances where the copyist achieves this goal while also providing

transformation are rare but not unheard of. For example, 2013’s Organ Trail

borrows extensively from the classic educational game Oregon Trail, complete

with the risk of cholera or dysentery. See Jim Sterling, Review: The Organ

Trail, D

ESTRUCTOID (Apr. 2, 2013), https://perma.cc/P2FV-9ZFH. The

difference in this well-regarded parody is that the westward journey is by

station wagon and the goal is not homesteading but rather escaping zombies.

Id.

291. See 4

NIMMER ON COPYRIGHT § 13.05[B] (2022).

CREATIVITY WITHOUT IP? 1331

creating new works for the purpose of entertaining the same fan

base was deemed non-transformative.

292

III. P

ROTECTION BEYOND COPYRIGHT

against clones. Given copyright’s exclusion of methods and

systems, it is natural to turn toward patent because functional

inventions are the core of the utility-patent regime. But

doctrinal and practical hurdles limit patent’s applicability to

video games. Trademark law is also worth considering. Indeed,

when participants in the industry talk about “the IP” for a game,

they typically mean the trademarks and related rights

necessary to produce sequels within an established franchise.

293

Video game publishers take great care to protect and cultivate

these trademarks. Trademark law does not, however, prevent

competitors from making substantively similar games. The use

of trademarks and related rights to police the boundary of

existing franchises is thus significant on its own terms, but not

as an obstacle to cloning.

A. Gameplay Patents

Patentable subject matter includes any “process, machine,

manufacture, or composition of matter” that meets the

requirements of patentability.

294

Developers could, in theory,

seek patents for uncopyrightable gameplay methods. Indeed,

many IP scholars have argued copyright’s functionality

exclusion is meant to channel rights-seekers into the patent

292. See, e.g., Castle Rock Ent. v. Carol Publ’g Grp., 150 F.3d 132, 142 (2d

Cir. 1998) (concluding Seinfeld trivia book’s “purpose” was “to repackage

Seinfeld to entertain Seinfeld viewers”); Twin Peaks Prods. v. Publ’ns Int’l,

996 F.2d 1366, 1375–76 (2d Cir. 1993) (finding no transformative purpose in

an unauthorized Twin Peaks guidebook); Toho Co. v. William Morrow & Co.,

33 F. Supp. 2d 1206, 1217 (C.D. Cal. 1998) (finding no transformative purpose

in an unauthorized Godzilla guidebook).

293. See supra note 154 and accompanying text.

294. 35 U.S.C. § 101.

1332 79 WASH. & LEE L. REV. 1285 (2022)

system.

295

Whoever obtained that patent would hold exclusive

rights to the claimed gameplay method for twenty years.

296

Patents are common in the industry, but most cover

technical aspects relating to hardware or system

performance.

297

While some game mechanics are

patented—like the “falling object” gameplay of

Dr. Mario

298

—patents in gameplay are rare and have seldom

been asserted against clones. The major outlier, Magnavox’s

litigation against “table tennis” clones like Pong, was a product

of its time.

299

As an electronics manufacturer in the 1970s,

Magnavox would have been more familiar with patent than

established that copyright applied to software (generally)

300

video games (specifically).

301

Few gameplay patents have been

asserted in the fifty years since.

302

While the absence of

295. See, e.g., Viva R. Moffat, The Copyright/Patent Boundary, 48 U. RICH.

L. REV. 611, 615 (2014) (explaining how IP law’s functionality exclusions

perform a channeling function).

296. See 35 U.S.C. § 154(a)(2).

297. See, e.g., McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299,

1303–08 (Fed. Cir. 2016) (involving patents for automatically synchronizing

facial expressions in video games); Atari Corp. v. Sega of Am., Inc., 869 F.

Supp. 783, 786–88 (N.D. Cal. 1994) (involving a patent on horizontal scrolling

with minimal interruption of memory access).

298. U.S. Patent No. 5,265,888 (filed Feb. 19, 1993); see supra note 266 and

accompanying text; see also U.S. Patent No. 5,390,937 (filed Mar. 16, 1992)

(patenting Final Fantasy’s active time battle system); U.S. Patent No.

6,935,954 (filed Dec. 14, 2000) (patenting a “Sanity System for Video Game”);

U.S. Patent No. 7,402,104 (filed Sept. 20, 2004) (patenting rolling objects into

a ball in Katamari Damacy); U.S. Patent No. 10,926,179 (filed Mar. 25, 2016)

(patenting the “nemesis system” for customized antagonists in Middle Earth:

Shadow Over Mordor).

299. Magnavox Co. v. Chi. Dynamic Indus., 201 U.S.P.Q. 25, 27 (N.D. Ill.

1977); see supra notes 69–72 and accompanying text.

300. See Computer Software Copyright Act of 1980, Pub. L. No. 96-517,

§ 101, 94 Stat. 3015, 3028 (1980) (adding “computer program” to the copyright

laws in 17 U.S.C. § 101); Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183, 1199

(2021) (“By defining computer programs in § 101, Congress chose to place this

subject matter within the copyright regime.”).

301. See Atari Games Corp. v. Oman, 979 F.2d 242, 247 (D.C. Cir. 1992)

(reversing the Copyright Office’s refusal to register a video game).

302. One case that surprised developers involved Sega’s patent on the

gameplay of Crazy Taxi, which covered features like virtual pedestrians who

dodge oncoming cars and floating directional arrows pointing to the next

objective. See U.S. Patent No. 6,200,138 (filed Oct. 30, 1998). Sega sued when

CREATIVITY WITHOUT IP? 1333

decisions leaves few cases to analyze, patent doctrine and

practical obstacles explain why obtaining and enforcing

gameplay patents would be difficult.

1. Doctrinal Barriers

Gameplay methods face difficulty meeting two patentability

requirements. The first is non-obviousness.

303

A developer

seeking a patent must do more than create something new.

304

The developer must invent something not obvious to the “person

having ordinary skill in the art,” in this case the typical game

designer.

305

In practice, courts often look to whether it would

have occurred to the designer to combine elements in the prior

art—pre-existing inventions—to arrive at the invention claimed

in the patent application.

306

For games, this would mean determining whether the

typical designer would have thought to combine features from

prior games to arrive at a particular game mechanic.

307

If so, the

method would be deemed obvious and therefore unpatentable.

308

The problem is that so many titles are iterative improvements

on what has already been done.

309

Predictable permutations of

mechanics from prior games are thus barred from patenting.

The second hurdle is patentable subject matter. Patents do

not cover “abstract ideas.”

310

The concept is elusive in

patent—much like in copyright—and courts continue to puzzle

over the Supreme Court’s latest guidance in Alice.

311

Litigation

these features appeared in a Simpsons-themed clone. See Case Analysis: Sega

v. Fox, P

ATENTARCADE (July 12, 2010), https://perma.cc/AB44-3TXC. The case

caught attention because suits like this are rare, and it generated no precedent

because it settled before trial. See id.

303. 35 U.S.C. § 103.

304. See id. § 102(a).

305. Id. § 103.

306. See KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 416 (2007).

307. See id. at 418.

308. See id. at 417.

309. See supra note 180 and accompanying text.

310. Alice Corp. Pty. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014).

311. 573 U.S. at 216–17; see Amdocs (Isr.) Ltd. v. Openet Telecom, Inc.,

841 F.3d 1288, 1294 (Fed. Cir. 2016) (“The problem with articulating a single,

universal definition of ‘abstract idea’ is that it is difficult to fashion a workable

1334 79 WASH. & LEE L. REV. 1285 (2022)

following Alice has, however, resulted in the invalidation of

patents directed at gameplay involving standard card decks or

dice for merely implementing “abstract rulesets.”

312

Of course, filing for patents requires assistance from

attorneys regardless of subject matter. The arcane nature of the

abstract-ideas questions surrounding game rules compounds

this need, foregrounding a set of practical obstacles.

2. Practical Concerns

The absence of patents from cloning disputes also stems

from practical considerations. Patenting is expensive and takes

years: the average cost is over $20,000 and patents may not

issue for twenty-three months.

313

This arrangement is especially

unfortunate for indie developers because, even assuming that

indie studios are more innovative and therefore likely to develop

non-obvious and therefore patent-eligible mechanics, they are

less likely to have resources for patenting.

314

One might think indie studios could file for patents after a

game proved commercially successful. But this would be difficult

because a developer must file no later than one year after “public

disclosure” of the gameplay method.

315

At the latest, this means

within one year of the game’s release.

316

However, the clock

could start running years earlier; pre-sales would likely

constitute disclosure under what is known as the “on-sale bar,”

as would public demonstrations or promotional materials

depicting patentable aspects of gameplay in sufficient detail.

317

In an industry where presales through crowdfunding campaigns

and detailed pre-release trailers are common, the decision to

patent would need to be made prior to release.

definition to be applied to as-yet-unknown cases with as-yet-unknown

inventions.”).

312. E.g., In re Marco Guldenaar Holding B.V., 911 F.3d 1157, 1162 (Fed.

Cir. 2018); In re Smith, 815 F.3d 816, 819 (Fed. Cir. 2016).

313. U.S.P.T.O.,

FY 2020 PERFORMANCE & ACCOUNTABILITY REP. 35,

46–47 (2020), https://perma.cc/J5LY-2D8X (PDF); David Fagundes &

Jonathan S. Masur, Costly Intellectual Property, 65 VAND. L. REV. 677,

689–90 (2012).

314. See supra Part I.C.2.

315. See 35 U.S.C. § 102(b)(1)(B).

316. Id. § 102(b)(1).

317. Id. § 102(a)(1).

CREATIVITY WITHOUT IP? 1335

B. Franchise Rights

Game developers often speak of obtaining “the IP” for a

game or about their aspirations to create their own IP. When

they refer to IP this way, they mean primarily trademarks and

any relevant copyright in characters or plot.

318

Trademark

rights are key to creating sequels to a popular game or

launching a new franchise.

319

These rights, however, do not stop

competitors from making clones or even promoting a game as

the “spiritual successor” to an earlier title.

320

1. Trademark

Trademark law is central to game franchises. Game titles

and iconic characters like Mario or Halo’s Master Chief set

established games apart regardless of whether other games

feature similar gameplay or subject matter.

321

Trademark law

prohibits clones or other competing games from using titles,

logos, or promotional materials that are confusingly similar.

322

This secures the publisher the exclusive right to develop games

under that title, release sequels, or authorize tie-ins like action

figures and television adaptations.

323

Trademark nonetheless poses few obstacles to cloning—it

protects titles and logos, not game mechanics or themes. Even

protection for titles is limited if using the trademarked words is

318. See supra note 154 and accompanying text.

319. See infra Part IV.B.2.

320. See Nathaniel Ng, New Castles with Familiar Bricks—Balancing

Copyrights, Spiritual Successor Video Games, and Competition, 58 I

DEA 337,

364–66 (2018). A “spiritual successor” is “a game designed to be very similar

to a previously released game while distinguishing itself as a separate IP, often

made by many of the same team members who worked on the earlier game.”

DAN CARREKER, THE GAME DEVELOPER’S DICTIONARY: A MULTIDISCIPLINARY

LEXICON FOR PROFESSIONALS AND STUDENTS 206 (2012).

321. One poll of U.S. schoolchildren in 1990 showed Mario was already

more recognizable than Disney’s Mickey Mouse. D

AVID SHEFF, GAME OVER:

HOW NINTENDO CONQUERED THE WORLD 9–10 (1993).

322. See 15 U.S.C. § 1125(a)(1)(A)–(B).

323. Video game publishers enjoy two layers of protection with respect to

these activities—copyright also prohibits unauthorized sequels, adaptations,

and depictions of copyrighted characters. See supra Part II.B.

1336 79 WASH. & LEE L. REV. 1285 (2022)

necessary.

324

Descriptive fair use, distinct from copyright fair

use, allows competitors to use trademarked terms in their

original descriptive sense.

325

Hence the developer of the 2014

Viking game Banner Saga rebuffed opposition from the makers

of Candy Crush Saga (who sought to stop others from using

“candy” or “saga” in game titles) because the “sagas,”

descriptively, are epic stories featuring Vikings and figures from

Norse legend.

326

Nominative fair use and similar doctrines also

permit using game titles for comparison,

327

as dozens of

journalists have done in describing the Fall 2021 game

Eastward as “Zelda-like.”

328

This allowance leaves room for

developers to market clones to fans of popular games. Indeed,

first-person shooter games—now represented by best sellers like

Call of Duty—were originally called “Doom clones” in reference

to the genre-defining game Doom from 1993.

329

2. Trade Dress

Trade dress works like trademark, but for distinctive

product packaging or product configurations.

330

For software

products like video games, commentators have suggested that

324. See KP Permanent Make-Up, Inc., v. Lasting Impression I, Inc., 543

U.S. 111, 122 (2004).

325. See id.

326. See Wesley Yin-Poole, King vs The Banner Saga, E

UROGAMER,

https://perma.cc/WR9H-KD7X (last updated June 26, 2014).

327. See Peter M. Brody & Alexandra J. Roberts, What’s In a Domain

Name? Nominative Fair Use Online After Toyota v. Tabari, 100 T

RADEMARK

REP. 1290, 1301–02 (2010).

328. E.g., Teddy Amenabar, ‘Eastward’ Is a Love Letter to Classic RPGs

Without a Clear, Coherent Story, WASH. POST (Oct. 1, 2021, 4:16 PM),

https://perma.cc/SQ3H-PJL6; Nicole Carpenter, Eastward Is Equal Parts

Zelda, Earthbound, and Itself, P

OLYGON (Sept. 14, 2021, 9:00 AM),

https://perma.cc/92CM-7D79.

329. See GRENVILLE ARMITAGE ET AL., NETWORKING AND ONLINE GAMES 18

(2006). Similar designations remain in use for other genres, including

“roguelike,” a term for dungeon crawlers with procedurally generated levels

like those of the 1980 title Rogue, and “metroidvania,” a portmanteau of the

1986 titles Metroid and Castlevania referencing a distinct blend of action and

exploration. Marek Suchanek, The Language of Videogames 53 (June 30,

2021) (Ph.D. dissertation, Silesian University in Opava),

https://perma.cc/H2CT-PGCT (PDF).

330. See TrafFix Devices, Inc. v. Mktg. Displays, Inc., 532 U.S. 23, 28–29

(2001).

CREATIVITY WITHOUT IP? 1337

protected elements might include onscreen graphics or user

interfaces.

331

This possibility notwithstanding, few cases have

alleged trade dress infringement in video games. This may be

due to the limits of trade dress. Like copyright, trade dress

excludes functional elements; it does not cover anything that

affects “cost or quality” or where exclusive rights would put

competitors at a “significant non-reputation-related

disadvantage.”

332

As one scholar recently explained, this means

that trademark does not protect any feature with benefits that

would endure regardless of how many competitors used the

same feature.

333

Game mechanics and graphical features relating to

gameplay would thus be excluded from trade dress protection

due to their functionality just as they are excluded from

334

To the extent deviating from established gameplay

would make a game more frustrating or less rewarding,

competitors would be disadvantaged if they could not copy it. As

with copyright, the one case to seriously test trade dress

functionality was Tetris Holding.

335

That court held that

“neither the color and style of the pieces nor the game board

being 20 units by 10 units . . . are functional in the context of

trade dress law.”

336

This conclusion may be sound with respect

to purely decorative aspects of color or style.

337

Like the

331. See Benjamin C.R. Lockyer, Comment, Trying on Trade Dress: Using

Trade Dress to Protect the Look and Feel of Video Games, 17 J.

MARSHALL REV.

INTELL. PROP. L. 109, 129 (2017); Lauren Fisher Kellner, Comment, Trade

Dress Protection for Computer User Interface “Look and Feel”, 61 U. C

HI. L.

REV. 1011, 1017 (1994).

332. TrafFix, 532 U.S. at 33 (citation omitted).

333. See Matthew G. Sipe, A Fragility Theory of Trademark Functionality,

169 U.

PA. L. REV. 1825, 1873–77 (2021). For example, using bright orange for

traffic cones would remain advantageous to the original user regardless of

copying because the color improves visibility. Referring to all carbonated

beverages as “Cokes,” by contrast, would reduce the mark’s value to the

original user by undermining the mark’s ability to specify Coca-Cola products.

See id. at 1873.

334. See Karen Leisten & Annemarie Ettinger, Protecting a Company’s

Graphical User Interface, W

ILMERHALE (May 6, 2002), https://perma.cc/D238-

9MNY; supra Part II.D.

335. Tetris Holding, LLC v. Xio Interactive, Inc., 863 F. Supp. 2d 394

(D.N.J. 2012); see supra Part II.D.2.

336. Tetris Holding, 863 F. Supp. 2d at 415.

337. See id.

1338 79 WASH. & LEE L. REV. 1285 (2022)

playing field dimensions is unsatisfying. The court concluded

that these aspects are nonfunctional because the game could be

designed differently and still “function perfectly well.”

338

While

the game would still be playable, it would not be playable in the

same way.

339

Changing the dimensions of play would make the

game harder in some ways and easier in others, and it would

thwart players who attempted to apply strategies they

developed playing Tetris.

340

Granting Tetris exclusive rights to

use these dimensions would thus confer a non-reputation-

related advantage—the ability to offer a game with a familiar,

popular set of mechanics—indicating that recognition of trade

dress rights was improper.

IV. C

OMPETING WITHOUT IP

Commercial success in the video game industry follows from

serving the demand for games similar to prior best-sellers. This

means keeping the same basic formula—familiar game

mechanics and story beats—but adding new content and

sharper graphics. The game mechanics and story beats of

popular games are common knowledge, and the foregoing

discussion explains why IP does not stop competitors from

duplicating them. One might expect competitors to break into

the market by copying these features, yet blatant cloning is rare

among major releases.

Consider a AAA example. The 2011 title The Elder Scrolls

V: Skyrim is an open-world action role-playing game in which

the player lives out the fantasy trope of playing the destined

hero.

341

The game has earned over $1.3 billion in revenue to

date.

342

The standard AAA strategy would be to release sequels

in the same vein.

343

But Skyrim’s publisher, Bethesda, has not

338. Id. at 416.

339. See supra note 274.

340. See supra notes 271–274 and accompanying text.

341. See generally B

EING DRAGONBORN: CRITICAL ESSAYS ON THE ELDER

SCROLLS V: SKYRIM (Mike Piero & Marc A. Ouellette eds., 2021).

342. See Mistry, supra note 161, at 552.

343. See supra note 133 and accompanying text.

CREATIVITY WITHOUT IP? 1339

simply released a new game like this one.

344

Instead, it

re-released the same game—Skyrim—in 2016 for a newer

generation of PlayStation and Xbox consoles and again in 2017

for Nintendo Switch.

345

Around the same time, it released

Skyrim–Special Edition (with remastered graphics) and Skyrim

VR (a virtual-reality version).

346

Yet another remaster hit the

latest generation of PlayStation and Xbox consoles on Skyrim’s

tenth anniversary in November 2021.

347

Remarkably, Skyrim

still ranked among the 100 top-selling and most-played games

on the leading PC-gaming platform Steam as of 2021 despite

being over a decade old by end of year.

348

So why has no

competitor overtaken Skyrim by releasing a game tailored to the

demand for similar games?

The answer lies beyond just IP. Legally speaking, other

developers are free to create their own open-world action

role-playing games that feature the player as a hero of legend.

Indeed, Skyrim popularized the open world-format, and its

systems for character advancement, crafting, and emergent

quest design have become standard among AAA role-playing

games.

349

The frequency and impact of copying is nonetheless

dampened by practical obstacles. Skyrim took $100 million to

develop and market even before it was remastered to take

344. Bethesda has, however, released games that riff on Skyrim with a

different gameplay mode (The Elder Scrolls Online, a massively multiplayer

online role-playing game in the same fictional universe) or a different theme

(Fallout 4, an open-world single-player game with similar gameplay set in a

post-apocalyptic future). See D

ANIEL REARDON & DAVID WRIGHT, THE DIGITAL

ROLE-PLAYING GAME AND TECHNICAL COMMUNICATION: A HISTORY OF

BETHESDA, BIOWARE, AND CD PROJEKT RED 8, 240–41 (2021).

345. See Dylan Candelora, Skyrim: Every Major Re-Release So Far (&

What Each One Improved About the Game), C

OMIC BOOK RES. (Nov. 19, 2021),

https://perma.cc/J9NY-KFKT.

346. See id.; see also R

EARDON & WRIGHT, supra note 344, at 8.

347. “Why build another Skyrim, the logic seems to run, when Skyrim

already exists—and, apparently, always will?” William Hughes, The Skyrim

Decade: How Bethesda’s Dragon-Slaying Opus Transformed Gaming, A.V.

CLUB (Nov. 11, 2021, 1:00 AM), https://perma.cc/G7GJ-72LM.

348. See Best of 2021: Top Sellers, S

TEAM, https://perma.cc/L2N8-E7KN;

Best of 2021: Most Played, S

TEAM, https://perma.cc/88Z3-MFH6; Best of 2021:

Best of VR, S

TEAM, https://perma.cc/EG7M-8DTQ.

349. See R

EARDON & WRIGHT, supra note 344, at 222–24, 240–41.

1340 79 WASH. & LEE L. REV. 1285 (2022)

advantage of new consoles’ greater graphical capabilities.

350

One

cannot recapture Skyrim’s magic without similar expenditures

toward graphics and filling a massive open world.

351

Bethesda

itself strains to craft a sequel that meets fan expectations.

352

Nor

is it easy to break into this market without name recognition.

353

Though it has not yet spawned its own sequels, Skyrim is the

fifth major release in the Elder Scrolls series.

354

Its reputation

gives it staying power that trademark helps secure. Moreover,

even without online gameplay, Skyrim has generated a

community of fans who release “mods,” stream themselves

playing, and share memes from the game—all of which generate

network effects that accrue to Bethesda’s benefit.

355

To make sense of these dynamics requires going beyond IP

to consider IP’s “negative space” through case studies showing

how creators compete in markets where IP is unavailable. The

following Subparts unpack those studies. As the discussion will

show, the AAA and indie sectors of the game industry are

remarkable exemplars of two very different modes of

competition in this space. If the AAA sector follows trends in the

fashion industry, then the indie sector falls in the same

neighborhood as haute cuisine and stand-up comedy.

350. See Solomon Thompson, 25 Crazy Things Fans Didn’t Know Behind

the Making of Skyrim, T

HE GAMER (Apr. 26, 2019), https://perma.cc/WE46-

EJNR.

351. See supra notes 145–146 and accompanying text.

352. See Kat Bailey, Todd Howard: Making Starfield Was Now or Never,

Even if Elder Scrolls 6 Had to Wait, IGN (Nov. 9, 2021, 2:05 PM)

https://perma.cc/JD79-HPHZ.

353. See Taub, supra note 38.

354. See Jerrad Wyche, Every Elder Scrolls Game, Its Starting Region &

Opening Quest, T

HE GAMER (May 6, 2022), https://perma.cc/67LH-A8SA.

355. See Piia Varis & Jan Blommaert, Conviviality and Collectives on

Social Media: Virality, Memes, and New Social Structures, 2 M

ULTILINGUAL

MARGINS 31, 40 (2015) (explaining how Skyrim’s “then I took an arrow in the

knee” meme “became wildly productive and can now be tagged to an almost

infinite range of different expressions”).

CREATIVITY WITHOUT IP? 1341

A. Adventures in Negative Space

The conventional economic rationale for intellectual

property centers on the problem of free-riding.

356

Society wants

creators to invest in intellectual works because we benefit from

them.

357

Complications arise, however, because intellectual

works tend to be expensive to produce and cheap to copy.

358

This

dynamic leaves creators vulnerable to being undercut by

copyists who would free-ride by making and selling cheap copies,

which the copyists could afford to do because they would not

bear the same upfront costs.

359

The risk of being undercut in this

way could discourage creators from making these works in the

first place.

360

IP laws—like copyright and patent—avert this

problem by endowing creators with exclusive rights to make and

sell copies.

361

To illustrate, consider a film like James Cameron’s Titanic.

Adjusted for inflation, it is one of the most expensive films ever

made, costing $200 million in 1997.

362

Profit-motivated studios

invest in these projects because they expect to make enough

money not only to cover their expenses, but also to profit.

363

Copying threatens this objective. It costs twenty-five cents to

burn a film to DVD.

364

Digital filesharing is even cheaper.

365

Studios could not compete with copyists who free-rode off the

studio’s efforts and sold bootleg DVDs; market competition could

356. See Stephanie Plamondon Bair & Laura G. Pedraza-Fariña,

Anti-Innovation Norms, 112 N

W. U. L. REV. 1069, 1076 (2018) (critiquing

negative-space scholarship for doing the same).

357. See id. at 1080.

358. See Landes & Posner, supra note 9, at 326.

359. Id.; see also Glynn S. Lunney, Jr., Copyright and the 1%, 23 S

TAN.

TECH. L. REV. 1, 8 (2020).

360. See Landes & Posner, supra note 9, at 328.

361. See id. at 326.

362. See Madeline Berg, The Most Expensive Movies Ever Made, F

ORBES

(Apr. 27, 2016, 9:30 AM), https://perma.cc/8RR5-J2KC.

363. See Landes & Posner, supra note 9, at 327.

364. See How to Burn a DVD,

WIKIHOW, https://perma.cc/2JYV-XZRG (last

updated Apr. 20, 2022); Smart Buy 100 Pack DVD-R 4.7gb, A

MAZON,

https://perma.cc/E7RD-3684.

365. See Arista Rec. LLC v. Lime Grp. LLC, 784 F. Supp. 2d 398, 410–11

(S.D.N.Y. 2011).

1342 79 WASH. & LEE L. REV. 1285 (2022)

drive the DVD price as low as the marginal cost of 25 cents.

366

Profit-seeking studios would not invest upfront without

protection against this sort of copying and movies like this would

not be made.

367

investment by giving studios exclusive rights to sell their

films.

368

Many commentators have (over)simplified this logic to

the notion that IP rights provide the incentives necessary for

creators to produce new works.

369

Scholarship on IP’s negative space challenges the

traditional account. IP’s negative space, as defined by one of the

scholars who coined the term, consists of areas of intellectual

production where we would expect intellectual property to play

a role but “for some reason—an accident of history, or doctrine,

or as a result of the norms of a particular creative

community”—creativity proceeds without it.

370

The study of

negative space throughout creative industries is predominated

by case studies on industries where participants seem to have

solved the free-riding problem through strategies other than

IP.

371

366. This simplification ignores commercialization strategies other than

DVD sales. Perhaps studios would try to thwart bootlegging by screening the

film only in theaters and making sure no copies left the theater, or perhaps

they would find ways to elevate the theater experience to make it more

appealing than home viewing. Studios might even initiate an ad campaign to

convince consumers that buying unauthorized DVDs harmed artists. These

strategies would mitigate free-riding, but not eliminate it. Moreover, the

expense of these strategies would impact creators’ bottom lines.

367. See Landes & Posner, supra note 9, at 335.

368. See id. at 326.

369. See Cohen, supra note 61, at 143 (“[T]he incentives-for-authors story

is wrong as a descriptive matter. Everything we know about creativity and

creative processes suggests that copyright plays very little role in motivating

creative work.”).

370. Christopher Jon Sprigman, Conclusion: Some Positive Thoughts

About IP’s Negative Space, in C

REATIVITY WITHOUT LAW: CHALLENGING THE

ASSUMPTIONS OF INTELLECTUAL PROPERTY (Kate Darling & Aaron Perzanowski

eds., 2017), 249, 252 [hereinafter Sprigman, Positive Thoughts]; see also

Rosenblatt, supra note 7, at 319 (“In IP law, negative space is a series of nooks,

crannies and occasionally oceans—some obscure, some vast—where creation

and innovation thrive in the absence of intellectual property protection.”).

371. See Perzanowski & Darling, supra note 8, at 1, 5–7.

CREATIVITY WITHOUT IP? 1343

1. Copy-Resistant Markets

Free-riding is averted in some industries by features of the

product or the market.

372

Kal Raustiala and Christopher

Sprigman inaugurated the study of IP’s negative space by

identifying this pattern in the fashion industry.

373

Fashion

designers produce new designs each year.

374

Contrary to the

received wisdom that IP is necessary to induce creativity, they

produce these designs even though neither copyright, trade

dress, nor design patent protects fashion designs.

375

Raustiala

and Sprigman found that the industry was viable due to synergy

between producing new designs and copying by imitators.

376

When designers introduce a look, copying by other designers

establishes it as a trend and drives sales.

377

Fast-fashion

operators subsequently take up the look and sell it through

affordable mass-market retailers.

378

Once it reaches the masses,

high-fashion customers seek something new to set themselves

apart.

379

The stage is thus set for a fashion designer to introduce

yet another new look, restarting the cycle.

380

The fashion case study has drawn a range of criticism due

to its prominence. Some question whether it truly exemplifies a

negative space given the substantial role trademarks play in

fashion (and the litigiousness of prominent brands).

381

Garment

designs may lack legal protection, but many garments sport

trademarked logos for which customers are willing to pay a

372. See Bair & Pedraza-Fariña, supra note 356, at 1076.

373. See generally Raustiala & Sprigman, The Piracy Paradox, supra note

374. Id. at 1693.

375. See id. at 1699–1705.

376. See id. at 1726 (“Rapid diffusion leads early-adopter consumers to

seek out new designs on a regular basis, which in turn leads to more copying,

which fuels yet another design shift.”).

377. See id. at 1728–29.

378. See id. at 1721.

379. See id.

380. See id.

381. See, e.g., Dreyfuss, supra note 12, at 1450. On the litigiousness of

Louis Vuitton, see Mike Masnick, Louis Vuitton’s International Tour of

Trademark Bullying Runs Smack Dab into UPenn Law School Who Explains

Trademark Law in Return, T

ECHDIRT (Mar. 6, 2012, 5:46 AM),

https://perma.cc/3PFD-7BSA.

1344 79 WASH. & LEE L. REV. 1285 (2022)

premium. The cycle itself also leads to waste through

expenditures on advertising and the staggering environmental

consequences of stoking demand for products that consumers

may discard within the year.

382

Notwithstanding the criticism, fashion is an important

example because, due to distinctive features of the market, it

has been identified as an industry where copying ultimately

benefits those who are copied.

383

This characteristic is unusual

in the literature. More commonly, industries avert free-riding

not because copying helps them, but because features of the

product or market make copying expensive or impractical. I call

this feature “copy resistance.” Stand-up comedy demonstrates

how features of a creative work can mediate the difficulty of

copying.

384

Jokes are subject to only thin copyright protection.

385

In earlier decades when jokes were more generic, the absence of

legal protection meant comedians could nab popular jokes to

retell as their own.

386

Beginning in the latter twentieth century,

however, comedy has become increasingly personalized, even

autobiographical, making jokes harder to appropriate.

387

would be difficult for a comedian without a similar background

to land jokes that reflect, say, Margaret Cho’s experience as a

Korean-American woman and LGBTQ+ social activist or

Kumail Nanjiani’s as a Pakistani-American immigrant man.

This change in substance has made jokes more copy-resistant.

388

382. See Dreyfuss, supra note 12, at 1460; Kal Raustiala & Christopher

Jon Sprigman, Faster Fashion: The Piracy Paradox and Its Perils, 39 C

ARDOZO

ARTS & ENT. L.J. 535, 546 (2021) [hereinafter Raustiala & Sprigman, Faster

Fashion] (“[A]s of 2015, greenhouse gas emissions from textiles production and

the fashion industry were ‘more than those of all international flights and

maritime shipping combined.’”); see also id. at 547 (questioning why society

“treat[s] fashion differently from any other form of economic activity that

produces environmental harms”).

383. See Raustiala & Sprigman, Piracy Paradox, supra note 1, at 1691.

384. See Oliar & Sprigman, supra note 2, at 1854–56.

385. See id. at 1801–05.

386. See id. at 1844–45.

387. See id. at 1852–53 (explaining that contemporary comedy emphasizes

“the individual comedian’s point of view,” making appropriation less attractive

in an industry in which “stealing is condemned”).

388. See Kapczynski, supra note 7, at 1547 n.37 (stating that it is difficult

for comedians to steal or copy jokes because modern comedy favors “jokes that

are ‘point-of-view’ driven”).

CREATIVITY WITHOUT IP? 1345

Related case studies document the efforts of conventional

“full-IP” industries to attain copy resistance. Music and

pornographic films provide two examples.

389

Even though

albums and films are subject to copyright protection, digital

file-sharing has precipitated a de facto decrease in copyright

effectiveness for these media products.

390

In response, the

industries have moved to live musical performances or exclusive

“cam shows;” would-be copyists cannot replicate these as

cheaply because their value stems from the live performance

rather than the recording.

391

This shift does not make copying

impossible. Extending the example of music, a competitor could

host a live musical performance based on another’s act by

renting space and hiring performers. The problems associated

with free-riding would nonetheless be diminished because the

expense would preclude the competitor from aggressively

undercutting prices.

392

2. Norm Enforcement

Exploration of IP’s negative space began with a case study

in fashion, an industry where features of the market render

copying beneficial to those whose work is copied. In contrast to

that dynamic, an even greater number of case studies have

identified negative spaces where participants mitigate

free-riding through enforcement of community norms.

393

This

work builds on the insights of property scholar Bob Ellickson,

whose book Order Without Law follows dispute resolution

389. See Sprigman, Positive Thoughts, supra note 370, at 261–63.

390. See Kate Darling, IP Without IP?: A Study of the Online Adult

Entertainment Industry, 17 S

TAN. TECH. L. REV. 655, 684 (2014); Christopher

Jon Sprigman, Copyright and Creative Incentives: What We Know (And Don’t),

55 HOUS. L. REV. 451, 461 (2017) [hereinafter Sprigman, Copyright and

Creative Incentives]; see also L

UNNEY, supra note 61, at 74 (approaching

file-sharing “as a natural experiment in radically reduced copyright

protection”).

391. See Darling, supra note 390, at 693 (explaining how the adult

entertainment industry has adapted by creating more live video content);

Sprigman, Copyright and Creative Incentives, supra note 390, at 461 (“[T]he

music industry adapted to piracy by re-emphasizing the live concert

experience, which, unlike recordings, cannot effectively be pirated.”).

392. See Sprigman, Positive Thoughts, supra note 370, at 262–63.

393. See Bair & Pedraza-Fariña, supra note 356, at 1076.

1346 79 WASH. & LEE L. REV. 1285 (2022)

among cattle ranchers in Shasta County, California.

394

demonstrated the primacy of social norms in governing

relations. Neighbors aspired to conduct themselves or make

reparations in conformity with community norms regardless of

what the law required, and those who did not conform faced

social sanctions from gossip to ostracism.

395

Studies of IP’s

negative spaces have revealed similar trends in norm

enforcement as a solution to free-riding across creative fields as

varied as stage magic, haute cuisine, tattoo art, and

fan-fiction.

396

Video games have also featured in this

literature—but with respect to fan creations rather than

professional developers.

397

Comedy is also of special interest

because, in addition to demonstrating copy resistance, it stands

as a paradigmatic example of norm enforcement.

398

Governance through norms holds intuitive appeal, driven

by the sense that it avoids the acrimony of legal proceedings and

allows participants to tailor rules to better fit their needs.

Norms among Michelin-star chefs, for example, strike a more

subtle balance than formal IP law by encouraging chefs to

publicize innovative recipes while punishing those who copy

others’ recipes exactly or pass off others’ as their own.

399

Any

warm feelings about relying on norms rather than law must be

tempered, however, by recognizing that violence often

accompanies enforcement: when warnings fail, ranchers and

comedians alike may fall back to their fists.

400

Moreover,

394. See generally ROBERT ELLICKSON, ORDER WITHOUT LAW: HOW

NEIGHBORS SETTLE DISPUTES (1994).

395. Id. at 176–78.

396. See generally Loshin, supra note 3 (stage magic); Fauchart & von

Hippel, supra note 4 (haute cuisine); Perzanowski, supra note 5 (tattoo art

industry); Hetcher, supra note 6 (fan-fiction).

397. E.g., Shisha, supra note 33, at 760 (explaining that professional

gamers “wield considerable power and influence, and are well-positioned to

dispense harsh reputational sanctions” in the gaming industry); Wallace,

supra note 33, at 228–30.

398. See Oliar & Sprigman, supra note 2, at 1809–31.

399. See Fauchart & von Hippel, supra note 4, at 192–93, 195–96. But see

Oliar & Sprigman, supra note 2, at 1864 (finding norms in comedy “simple and

crude” relative to copyright).

400. See E

LLICKSON, supra note 394, at 131; Oliar & Sprigman, supra note

2, at 1796–97; id. at 1820 (“It is significant . . . that such acts of violent or

potentially violent retribution enjoy considerable legitimacy within the

comedic community.”).

CREATIVITY WITHOUT IP? 1347

communities where norms predominate are those where

participants have latched onto conformity and norm-policing as

markers of esteem and belonging.

401

Several scholars have

documented how these social and emotional commitments can

lead to overenforcement, difficulties adapting to change, and the

entrenchment of biases and incumbents.

402

The most significant limitation of this strategy is that

norms only bind community members.

403

This is not to say

subscribing to norms is entirely voluntary; communities that

control access to resources may be able to insist.

404

Consider the

plight of an aspiring comic or magician. Clubs will refuse to book

her for shows if she attains notoriety as a norm-breaker, ending

her career.

405

Likewise, she may not be invited to the

conferences or nominated for the awards that would allow her

to advance.

406

Yet norms may lack force against those already at

the top. Accusations of stealing by newcomers against

established participants are less likely to stick, and a star may

401. See Rosenblatt, supra note 15, at 8, 10.

402. See, e.g., Richard McAdams, The Origin, Development, and

Regulation of Norms, 96 M

ICH. L. REV. 338, 419–23 (1997) (arguing that when

norms are enforced excessively or too zealously, they may prove inefficient or

even harmful); Anthony J. Casey & Andres Sawicki, The Problem of Creative

Collaboration, 58 W

M. & MARY L. REV. 1793, 1822–23 (2017); Rosenblatt, supra

note 15, at 10; see also Madhavi Sunder, Cultural Dissent, 54 S

TAN. L. REV.

495, 555–56 (2001) (problematizing the law’s uncritical reinforcement of

traditional norms for “insulating cultures from change and entrenching the

existing power structures of a community”).

403. See Dreyfuss, supra note 12, at 1458–62.

404. See, e.g., Katherine J. Strandburg, Curiosity-Driven Research and

University Technology Transfer, in U

NIVERSITY ENTREPRENEURSHIP AND

TECHNOLOGY TRANSFER: PROCESS, DESIGN, AND INTELLECTUAL PROPERTY 93,

108–09 (Gary D. Liecap ed., 2005) (explaining how non-compliance with

academic science norms may lead to “denial of the scarce resources of research

funding and attention”).

405. See Oliar & Sprigman, supra note 2, at 1817–18.

406. See Loshin, supra note 3, at 137–39 (“Magicians whom other

magicians perceive as behaving badly may not be invited to give lectures,

invited to perform in magic competitions, or featured in magic trade

publications.”); cf. Daniel J. Hemel & Lisa Larrimore Ouellette, Beyond the

Patents–Prizes Debate, 92 T

EX. L. REV. 303, 316–19 (2013) (exploring “prizes,

grants, or tax incentives” as alternatives or complements to patents for

spurring innovation).

1348 79 WASH. & LEE L. REV. 1285 (2022)

be able to trade off her name to book performances and media

appearances despite her transgressions.

407

3. Non-Pecuniary Motivations

Another undercurrent in the negative-space literature is

the salience of non-pecuniary motivations.

408

While profits drive

studios and their investors, motives vary for individual

creators.

409

If you asked an artist what drove her, it is unlikely

she would parrot the conventional story of copyright

incentives.

410

Depending on the artist, money might not even

approach the top the list. Rather, creators often speak of

intrinsic motivations such as the need to express

themselves—to do what they love or satisfy a compulsion.

411

Creators also act on social motivations, such as a desire to build

reputation or esteem.

412

These social motivations provide a

partial explanation for the efficacy of norm-enforcement regimes

documented in prior case studies.

413

Some creators may also

forego payment on a project because they seek to build

reputation or notoriety that they can translate into more

profitable ventures in the future.

414

Together these

407. See Oliar & Sprigman, supra note 2, at 1824 (“[E]nforcement was

relatively unlikely to succeed when the appropriator was a more popular comic

than the originator. . . . Also, intermediaries are less likely to enforce the

norms or refuse to deal when the alleged thief enjoys public appeal.”).

408. See Yochai Benkler, Coase’s Penguin, or, Linux and The Nature of the

Firm, 112 Y

ALE L.J. 369, 426–27 (2002) [hereinafter Benkler, Coase’s Penguin]

(explaining that intrinsic and social-psychological rewards sometimes

motivate creative production more than monetary rewards); Rosenblatt, supra

note 7, at 343–45.

409. See Rosenblatt, supra note 7, at 320–21.

410. See Cohen, supra note 61, at 143 (“Everything we know about

creativity and creative processes suggests that copyright plays very little role

in motivating creative work.”).

411. See id.; see also Rebecca Tushnet, Economies of Desire: Fair Use and

Marketplace Assumptions, 51 W

M. & MARY L. REV. 513, 524 (2009) (“Some of

these reasons are pleasant, some are unpleasant, even destructive.”).

412. See Benkler, Coase’s Penguin, supra note 408, at 427–28; Rosenblatt,

supra note 7, at 344–46.

413. See e.g., Rosenblatt, supra note 7, at 332.

414. See Benkler, Coase’s Penguin, supra note 408, at 424–25 (explaining

how free software development can be motivated by “reputation gains” or

“more mundane benefits, such as consulting contracts, customization services,

and increases in human capital”).

CREATIVITY WITHOUT IP? 1349

non-pecuniary motives provide an additional layer of

incentives—effectively a subsidy—for creative production.

While these incentives facilitate creation of more works for

society to enjoy, we should take care not to romanticize the idea

of creating for the love of art. It can all too easily obscure the

problems that follow from overworking and underpaying

creative workers.

415

Nor should we take creativity as some sort

of mystery divorced from artists’ material realities.

416

These

dynamics also compound problems for marginalized workers

across creative industries, given that many of the workers

whose labor goes unrewarded or undercompensated are women,

indigenous peoples, or members of the LGBTQ+ community.

417

Full assessment of any domain of creative production requires

accounting for these costs and their impact on what is

produced.

418

B. AAA Games

1. Copy Resistance

Video games present a rich case study because they are the

face of modern creative production. Their economic and social

significance alone would merit attention, as would the

industry’s unique configuration of IP and non-IP protections. As

closer examination shows, the industry also embodies several

trends previously documented in copyright’s negative space. The

AAA sector guards itself from cloning because the expense of

making AAA games renders them copy resistant. Recall that one

major concern with copying is free-riding—when a work is

expensive to produce but cheap to copy, third parties can

undercut the creator by making copies and selling them for

415. See Dreyfuss, supra note 12, at 1464; Renyi Hong, Game Modding,

Prosumerism and Neoliberal Labor Practices, 7 I

NT’L J. COMMC’N. 984, 985

(2013) (documenting extraction of value from unpaid video-game modders).

416. See Cohen, supra note 61, at 146–47.

417. See, e.g., Dreyfuss, supra note 12, at 1464 (women and indigenous

peoples); J

UUL, supra note 24, at 113–19 (transgender and gender non-binary

developers); Bonnie Ruberg, The Precarious Labor of Queer Indie

Game-Making: Who Benefits from Making Video Games “Better”?, 20

ELEVISION & NEW MEDIA 778, 780 (2019).

418. See e.g., Ruberg, supra note 417, at 779–80.

1350 79 WASH. & LEE L. REV. 1285 (2022)

less.

419

Legal protection is less urgent where the expenses of

copying are comparable to those of producing the original.

420

Later entrants might choose to copy something popular, but

they would be restricted in their ability to undercut the price

because they too would have to recoup their upfront

investments.

421

Such is the case with AAA games. Blockbuster games now

cost upward of $100 million to develop and market due to

investment in features like graphics, celebrity involvement, full

voice acting, and open worlds.

422

These games are expensive to

clone because competing head-to-head with the original requires

comparable expenditures on graphics and marketing.

423

Competitors can benefit from the original game’s marketing to

the degree that it popularizes a genre, but popular genres are so

crowded that a game is unlikely to stand out without its own

marketing.

424

Even if there are no legal obstacles to making

similar games, the cost of competing via budget, as it were,

presents practical obstacles that mitigate cloning.

Overt piracy would present a different problem. A game

that cost $100 million to produce could be burned to a disc for

twenty-five cents, giving rise to the risk of free-riding.

425

This

problem is averted, however, because copying and selling a

game outright remains prohibited.

426

prohibits competitors from copying specific art assets or lines of

code.

427

They may create similar art and code, but they must

start from square one, forcing them to incur comparable

expenses. Copyright thus prohibits specific forms of copying that

raise serious free-riding problems while leaving game makers to

sort out others.

419. See supra notes 356–360 and accompanying text.

420. David Friedman, Standards as Intellectual Property: An Economic

Approach, 19 U.

DAYTON L. REV. 1109, 1116 (1994).

421. See id. at 1118.

422. See supra notes 143–151 and accompanying text.

423. See supra Part I.C.1.

424. See, e.g., Chatfield, supra note 18.

425. See supra note 364 and accompanying text.

426. See supra Part II.A.

427. See supra Part II.A.

CREATIVITY WITHOUT IP? 1351

2. Franchise Entrenchment

AAA games also benefit from legal and non-legal protection

over franchises. Recall that eighty of the top 100 games of 2018

were sequels.

428

So too were all but one of the top twenty.

429

The

outlier, Spider-Man, may not have been a video game sequel but

it was an extension of an established franchise for a superhero

whose popularity spans sixty years.

430

Publishers’ investment in these franchises is no accident.

Imitating a popular game may be viable in a market where

players want more games like that game. That strategy is not

viable, however, if players are loyal to a franchise and resistant

to substitutes. By wielding trademarks and related licensing

rights to protect their franchises, publishers insulate

themselves against competition. Publishers bolster these efforts

through additional non-legal strategies to cultivate and lock in

their established fan bases.

a. Trademarks and Third-Party Licenses

The absence of comprehensive copyright protection does not

necessarily mean the industry gets by without IP. Participants

may instead rely more heavily on whatever IP rights remain

available. Much like fashion relies on trademark in the absence

of copyright, participants in the video game industry rely on

trademarks and related rights to protect franchises.

431

Trademark law does not protect substantive game design

elements, but it does give developers exclusive rights to release

sequels and spin-offs.

432

428. See Global Yearly Chart 2018, supra note 152.

429. Id.

430. Additionally, though 2018’s Spider-Man was not marketed as a sequel

and did not continue the story arc from any prior game, it followed at least

twenty-two prior Spider-Man games across several platforms spanning four

decades beginning with the 1982 Spider-Man for the Atari 2600. See Chris

Hodges, Every Spider-Man Video Game, Ranked from Worst to Best,

CREENRANT (July 10, 2017), https://perma.cc/7ZXQ-UBNT. If a game

qualifies as a sequel by utilizing the same title, the same characters, and the

same trademarks and character copyrights, then all twenty best sellers of 2018

were sequels.

431. See supra Part III.B.

432. See supra Part III.B.

1352 79 WASH. & LEE L. REV. 1285 (2022)

Reliance on trademark also makes sense given the

industry’s historical issues with quality. Trademarks are

important in markets where it would be difficult to evaluate

quality before purchasing a good.

433

Brands and similar marks

allow purchasers to make informed decisions despite this

difficulty by relying on past experience and brand reputation.

434

If unethical sellers falsely used other manufacturers’ marks,

however, brands would be useless because purchasers could not

rely on them.

435

Trademark prohibits this deception.

This rationale fits the video game industry. Players cannot

inspect game quality firsthand prior to purchase and hundreds

of new titles are released for Nintendo, PlayStation, and Xbox

home consoles each year; the number is an order of magnitude

greater for PC games and greater still for mobile games.

436

Many

consumers also regret prior bad purchases.

437

Consumer

reliance on known franchises makes sense in light of these

dynamics and the industry’s focus makes sense as a response to

this consumer strategy.

Producers also rely on third-party licenses with celebrities

and sports leagues that make games costly if not impossible to

duplicate. Inclusion of celebrities generates media buzz, and the

right of publicity provides legal support for publishers’

marketing and promotion.

438

The 2020 title Cyberpunk 2077, for

example, received considerable attention prior to release

because one of the main characters was voiced by and modeled

433. See MENELL ET AL., supra note 245, at 891.

434. See William M. Landes & Richard A. Posner, Trademark Law: An

Economic Perspective, 30 J.L.

& ECON. 265, 269–70 (1987).

435. See id. at 270.

436. See, e.g., List of PlayStation 4 Games (A–L), WIKIPEDIA,

https://perma.cc/XJQ7-4U7Q (documenting 3,419 PlayStation 4 games

released since the console’s introduction in 2013); List of PlayStation 4 Games

(M–Z), W

IKIPEDIA, https://perma.cc/Y65Y-TR58 (noting an additional 3,386

PlayStation 4 games); Clement, supra note 173 (documenting over 8,000 new

PC games per year); J. Clement, Apple App Store: Number of Available

Gaming Apps as of Q1 2021, S

TATISTA (Jan. 24, 2022), https://perma.cc/JU6P-

S5CU (documenting over 18,000 new iPhone gaming applications from Q4

2020 to Q1 2021).

437. See supra notes 95–101, 158–161 and accompanying text.

438. See, e.g., C

AL. CIV. CODE § 3344(a) (2022) (prohibiting use of “another’s

name, voice, signature, photograph, or likeness” for advertising or selling or

soliciting purposes). See generally JENNIFER E. ROTHMAN, THE RIGHT OF

PUBLICITY: PRIVACY REIMAGINED FOR A PUBLIC WORLD (2018).

CREATIVITY WITHOUT IP? 1353

after actor Keanu Reeves;

439

in like fashion, Giancarlo Esposito

of Breaking Bad fame lent his voice and likeness to the

antagonist of the 2021 release Far Cry 6.

440

Studios pay

significant sums to include A-list celebrities.

441

Because the

right of publicity protects celebrities’ likenesses, including their

voices, it prohibits other studios from including these or other

celebrities unless they incur comparable expenses.

442

graphics and other production expenses, the inclusion of

celebrities contributes to copy resistance.

Licenses with sports leagues provide even more significant

advantages. If an action star like Sylvester Stallone assigns

exclusive rights to his likeness to developers at Acme Studios,

then Bruce Willis may still be available to Weyland-Yutani;

better or worse substitutes exist.

443

But consider the result of

licenses like the seven-year, $1.1 billion deal the NBA signed

with Take-Two Interactive, maker of the NBA 2K series of

games.

444

Most basketball fans who play video games want the

experience of using actual teams, with actual logos, with actual

players.

445

Competitors who are excluded from using these may

still offer a genericized basketball game, but they will face an

uphill battle for a market share. Competing via license deals is

prohibitively expensive for smaller studios, but enforceability of

the relevant trademarks leaves the availability of copyright

439. See supra note 149 and accompanying text.

440. See Audrey Cleo Yap, Giancarlo Esposito on Playing a Gus

Fring-esque Dictator in ‘Far Cry 6’, V

ARIETY (July 12, 2020, 1:07 PM),

https://perma.cc/UY4E-SG9T.

441. See supra note 150 and accompanying text.

442. The right of publicity would likewise stop game studios from imitating

celebrities’ voices. See Midler v. Ford Motor, 849 F.2d 460, 463 (9th Cir. 1988)

(holding that the imitation of Bette Midler’s “distinctive voice” in an

advertisement supported a right-of-publicity claim).

443. The example might sound farfetched if one was unaware that both

actors recently reprised their roles from the action films Rambo and Die Hard,

respectively, for a Call of Duty ’80s Action Hero DLC. See Eddie Makuch, Call

of Duty Devs Talk Die Hard Missions and What It Took to Bring Rambo and

McClane to the Game, G

AMESPOT (May 18, 2021, 4:19 PM),

https://perma.cc/AX9X-HSKM.

444. See Needleman, supra note 151.

445. See Jake Dee, 10 Best Basketball Video Games, Ranked by Metacritic,

CREENRANT (July 13, 2021), https://perma.cc/8LHR-WSM6 (demonstrating

that all of the top-ranked basketball video games are NBA games with

real-world players and teams).

1354 79 WASH. & LEE L. REV. 1285 (2022)

protection, other than the right to prohibit wholesale piracy,

largely beside the point.

b. Network Effects

Many games also accrue value through the growth of their

player bases; this provides established games another asset that

cannot be appropriated. The literature on network effects

provides perspective. Some goods and services become more

valuable because others use the same good or service.

446

The

canonical examples come from communications: the value of

phone service increases as more people have phones, much like

the value of a service like Facebook increases as more people

join. Games benefit from similar dynamics.

The point is most evident for online multiplayer games.

Take the popular battle-royale game Fortnite. It has attracted

over 350 million registered users, with a record of over 12

million online at the same time.

447

A large player base is

valuable for a multiplayer game because it facilitates

matchmaking, allowing players to find others of comparable

skill levels to play against at any time of day.

448

This gives

Fortnite a competitive advantage. A new entrant could not

out-compete Fortnite simply by introducing a game with better

graphics, gameplay, and other design features; it would need to

be sufficiently better to overcome the network effects supporting

the incumbent game.

A popular game may also simply attract a fanbase that

promotes the game and makes it more popular. As referenced

above, even single-player games like Skyrim reap benefits by

attracting large online communities eager to share strategies,

memes, and game mods.

449

These mods—adding sometimes

hundreds of hours of free, fan-made content—provide value and

replayability to the game through fans’ uncompensated labor.

450

446. See Rosenblatt, supra note 7, at 348.

447. Mansoor Iqbal, Fortnite Usage and Revenue Statistics (2022), B

US.

APPS., https://perma.cc/7JKF-L4EY (last updated June 30, 2022).

448. See generally Mingliu Chen et al., Matchmaking Strategies for

Maximizing Player Engagement in Video Games (Sept. 22, 2021) (unpublished

manuscript), https://perma.cc/EQW2-HBRC (PDF).

449. See Reardon & Wright, supra note 344, at 100–06.

450. See Note, Spare the Mod: In Support of Total-Conversion Modified

Video Games, 125 H

ARV. L. REV. 789, 800–01 (2012) (discussing how “free labor

CREATIVITY WITHOUT IP? 1355

Streaming platforms like YouTube and Twitch, where many

players congregate, have also become important networks for

organic or sponsored promotion of whichever games popular

streamers choose to play.

451

Those games popular enough to

attract streamers’ attention accordingly attract even more

players, entrenching their popularity.

Games, like other online services, may also be designed to

lock players in. One way of achieving this is by exploiting the

decision-making weaknesses outlined in the behavioral

economics literature.

452

The sunk cost fallacy, for example, may

keep players attached to a game after they have spent money on

subscriptions or microtransactions.

453

Various aspects of the

software-as-service business model may therefore not only

generate immediate revenue, but also contribute to long-term

player retention.

454

3. Feedback Loop: More of the Same

Publishers’ strategy of investing heavily in graphics and

other high-budget assets intensifies their reliance on

established franchises. There is a feedback loop between the

two. When investors put $100 million toward a game, they want

assurances that the game will sell enough copies to return a

profit. One way to increase that likelihood is to create sequels

for games that sold well in the past—if the seventeenth

installment of Call of Duty sold twenty-million copies, it is a

good bet that the nineteenth installment will also sell.

455

Besides

pushing studios to keep gameplay consistent, this drive to tap

and leisure . . . lets the industry sidestep copyright issues through the

‘ideological masking of modding as a collaborative process’”).

451. See Mark R. Johnson & Jamie Woodcock, The Impacts of Live

Streaming and Twitch.tv on the Video Game Industry, 41 M

EDIA CULTURE &

SOC’Y 670, 676 (2018).

452. See generally Christine Jolls et al., A Behavioral Approach to Law and

Economics, 50 S

TAN. L. REV. 1471 (1998).

453. See Erica L. Neely, Come for the Game, Stay for the Cash Grab: The

Ethics of Loot Boxes, Microtransactions, and Freemium Games, 16 GAMES &

CULTURE 228, 238 (2019).

454. See id.

455. See Call of Duty, W

IKIPEDIA, https://perma.cc/YEA2-TJZD

(documenting the release of the nineteenth installment in 2022); see Taub,

supra note 38 (“[I]ncreasingly, the game industry shares something else with

Hollywood: a heavy reliance on sequels.”).

1356 79 WASH. & LEE L. REV. 1285 (2022)

into an established audience may also discourage studios from

touching cultural or political controversy, such as the inclusion

of police and police misconduct in games where it would be

thematically appropriate. One recent example that drew

attention was Spider-Man: Miles Morales, which omitted law

enforcement rather than confronting the complicated themes

featured in the original source material in connection with Miles

Morales’ experience as a Black and Puerto Rican teen whose

father is on the force.

456

Another was Cyberpunk 2077, a game

set in a dystopian future, where the developers promised police

corruption and brutality but underdelivered on these themes in

the final release.

457

C. Indie Games

The video game industry is financially precarious for small

studios, including most indie studios. Cloning adds to this

precarity. In rare cases of particularly egregious cloning,

developers may possess viable IP claims,

458

but indie studios’

innovations tend to consist of game mechanics and novel

themes, categories with only thin IP protection. Barring legal

recourse, indie studios cannot avert copying the same way as

AAA studios. They generally lack resources to engage in a

graphics or marketing arms race with other entrants to the

same genre. Indeed, the story of Threes! and 2048 outlined above

highlights an unfortunate dynamic where one studio releases a

game but a clone captures the market through better polish and

marketing.

459

Yet cloning has not derailed indie development as much as

one might expect. This may be partly due to a different

orientation to financial risk.

460

Asked to define success, many

456. See, e.g., Eliana Dockterman, Spider-Man: Miles Morales Could’ve

Tackled Police Reform Head-On. Instead, the Cops Are Almost Entirely Gone,

TIME (Nov. 10, 2020, 3:34 PM), https://perma.cc/66TU-GHYU (criticizing the

game’s avoidance of any discussion of police brutality).

457. See Wes Fenlon, 9 Features that Didn’t Make It to the Final Version

of Cyberpunk 2077, PCG

AMER (Dec. 16, 2020), https://perma.cc/7U2G-T585.

458. See, e.g., Spry Fox LLC v. LOLApps, No. 2:12-cv-00147-RAJ, 2012 WL

5290158, at *1–2 (W.D. Wash. Sept. 18, 2012); see supra note 253 and

accompanying text.

459. See supra notes 192–196 and accompanying text.

460. See Whitson et al., supra note 168, at 611.

CREATIVITY WITHOUT IP? 1357

indie developers simply wish to have the freedom to keep

making the kinds of games they want to make.

461

Some measure

of financial success remains necessary, but intrinsic motivations

partly explain why indie studios keep making games despite the

risks.

462

Developers also benefit from systemic barriers to cloning.

Community norms restrict copying among indie developers, and

selection of niche aesthetics and themes gives indie games a

measure of copy resistance. Crowdfunding also alleviates risk

because it provides revenues prior to release and therefore

(usually) prior to the risk of cloning.

463

This equilibrium remains

fragile, however, and the explosion of mobile games threatens it.

1. Community Norms

Cloning among indie developers is averted because the

community is one where norm enforcement is viable. Too many

games are released each year for players to navigate simply by

browsing the virtual shelves on a platform like Steam.

464

Additionally, dedicated indie-game players are selective in

screening games for the sort of subcultural authenticity often

associated with indie games, much like aficionados of indie

music or films.

465

Success requires developers to win the

approval of cultural institutions within the indie sector so they

can win invitations to expos, nominations for awards, and

connections to potential investors for future projects.

466

Securing

this approval requires conforming to indie norms.

461. See id.

462. See supra Part IV.A.3.

463. Exceptions arise where developers announce a game in progress and

a third party immediately begins making a clone; motivated copyists may beat

the original creator to market. See, e.g., Russ Pitts, Cloned at Birth: The Story

of Ridiculous Fishing, P

OLYGON (Apr. 24, 2013, 12:00 PM),

https://perma.cc/U8YS-6KLX. Recall that the industry began with Atari’s

co-founders copying Magnavox’s Table Tennis after witnessing a pre-release

demonstration. See supra note 65 and accompanying text.

464. See supra note 436.

465. See J

UUL, supra note 24, at 38–39.

466. See, e.g., Whitson et al., supra note 45; Perks, supra note 174, at 17;

Whitson et al., supra note 168.

1358 79 WASH. & LEE L. REV. 1285 (2022)

Indie developers pride themselves on originality.

467

Some

degree of copying is expected, but subsequent developers are

expected to innovate beyond what has come before.

468

Similarly,

case studies on haute cuisine uncovered a norm among chefs

against copying another chef’s recipe exactly.

469

Imitation is

permitted, but chefs must add their own spin.

470

This standard

resists precise specification; whether a recipe follows the

original too closely is the sort of thing chefs claim to know when

they see.

471

Research on game developers and players reveals

similar norms. It is a breach of community norms to copy an

entire system unchanged.

472

Moreover, it is a breach to simply

reskin a game—to keep the same underlying mechanics and

change only the artwork or overall theme.

473

As with cuisine,

how much must be changed is left to community discretion: indie

developers “openly admit they borrow elements from other

games themselves, so they are careful in judging fellow game

developers who are accused of cloning.”

474

Motives also matter.

One who copies to profit off of the original is scorned, while a fan

who copies in homage may be tolerated or even welcomed.

475

Norm enforcement is difficult, however, against those who

stand outside the community. Shaming is a common sanction

for breach of norms in the indie community as in others and, in

the age of social media, it can in theory be deployed even against

outsiders.

476

Indie studios that have attempted such public

shaming campaigns against outside developers who have

467. See, e.g., van Roessel & Katzenbach, supra note 179, at 408–10.

468. See id.

469. See Fauchart & von Hippel, supra note 4, at 192–93.

470. See id.

471. See id. at 193.

472. See van Roessel & Katzenbach, supra note 179, at 408.

473. See id. at 408 (“Developers generally agree on these extreme ends of

imitation: a wholesale copying of any of the three main components is not

acceptable.”).

474. Phillips, supra note 46, at 149 (“[E]valuation of the artistic integrity

of games is done via informal channels, by the indie development community

themselves . . . .”); van Roessel & Katzenbach, supra note 179, at 411.

475. See van Roessel & Katzenbach, supra note 179, at 413.

476. See Phillips, supra note 46, at 149. See generally Kate Klonick,

Re-Shaming the Debate: Social Norms, Shame, and Regulation in an Internet

Age, 75 M

D. L. REV. 1029 (2016); Elizabeth L. Rosenblatt, Fear and Loathing:

Shame, Shaming, and Intellectual Property, 63 D

EPAUL L. REV. 1 (2013).

CREATIVITY WITHOUT IP? 1359

imitated indie games too closely have realized only limited

success.

477

2. Finding a Niche

Many indie developers also make creative decisions that

render their games copy-resistant. They do this not by ramping

up production value or otherwise making their games expensive

to copy, per se. Instead, they choose aesthetics, themes, and

mechanics that are less popular and therefore less profitable to

copy.

Indie developers are the hipsters of the industry: they

define game-design criteria in opposition to the mainstream.

478

Some of these decisions, particularly with respect to aesthetics,

are driven by financial constraints. Indie developers have

smaller budgets than AAA developers. They cannot afford to

make games with hyper-realistic 3D graphics; if they tried, the

resulting game would convey the disappointing impression that

it could have been good if only it had a proper budget.

479

Many

indie developers have nonetheless produced memorable,

aesthetically pleasing games by adopting an intentionally retro

style evoking the pixelated look of video game consoles of the

1980s and 1990s.

480

Pixelated graphics can be achieved on a

smaller budget and without enlisting nearly as many artists as

the contemporary AAA game.

481

Other decisions are driven by developers’ desire to explore

perspectives and ways of being that are missing from AAA

games. Many mainstream games follow action-hero plotlines

where players conquer obstacles through violence. Depression

Quest—the indie game sadly best known as the initial target of

GamerGate—charts a different course; it puts the player in the

position of battling depression while managing medications and

relationships.

482

Another notable entry, Undertale, adopts the

trappings of a combat-heavy, 90s-era roleplaying game, but it

provides the option to overcome opponents by befriending them

477. See infra Part IV.C.4.

478. See supra notes 165, 176–178 and accompanying text.

479. J

UUL, supra note 24, at 34.

480. Id. at 28.

481. Id.

482. Id. at 139–40.

1360 79 WASH. & LEE L. REV. 1285 (2022)

(at greater difficulty than simply killing them).

483

Recent indie

games have also featured stories and relationships grounded in

the experiences of the LGBTQ+ community.

484

Indeed, games

like Depression Quest have prompted some gamers to complain

that “politics” should be kept out of games.

485

Adopting non-mainstream aesthetics and themes is no

guarantee against copying, but it does impact the calculus for a

profit-driven appropriator. The protection is not durable,

however, if an indie trend goes mainstream. Consider the

trajectory of “survival horror” games. The survival horror genre

was utilized by mainstream publishers as early as 1996 and

represented a partial turn away from traditional action games,

subverting player expectations by requiring them to sometimes

run or hide.

486

Even so, by 2008, AAA horror games had

succumbed to the conventions of standard action-shooter games

to better appeal to mainstream audiences.

487

Around the same

time, indie developers launched a contrary approach to survival

horror. The indies armed players with little more than a

flashlight.

488

They restricted player autonomy so thoroughly

that some hapless protagonists could do little more than sit at a

desk, anxiously watching security cameras.

489

This approach

proved surprisingly popular through titles like the 2012 game

Slender: The Eight Pages (featuring the infamous Slender Man)

and the 2014 game Five Nights at Freddy’s (a nightmarish take

on the animatronics of Chuck E. Cheese), both of which

benefited from streaming by YouTubers.

490

As a result, however,

483. Id. at 156–62.

484. See id. at 112–17.

485. See Simon Parkin, Zoe Quinn’s Depression Quest, THE NEW YORKER

(Sept. 9, 2014), https://perma.cc/J3F3-CMCT. These complaints admit no hint

of irony. The implicit position is that the typical game featuring a gun-toting

vigilante solving problems through gratuitous violence is politically neutral.

486. See Laurie N. Taylor, Gothic Bloodlines in Survival Horror Gaming,

in H

ORROR VIDEO GAMES: ESSAYS ON THE FUSION OF FEAR AND PLAY (Bernard

Perron ed., 2009), at 46–47.

487. See B

ERNARD PERRON, THE WORLD OF SCARY VIDEO GAMES: A STUDY IN

VIDEOLUDIC HORROR 34, 220–21, 232 (2018); Jim Sterling, How Survival

Horror Evolved Itself Into Extinction,

DESTRUCTOID (Dec. 8. 2008),

https://perma.cc/6Z94-A8UP.

488. See P

ERRON, supra note 487, at 238.

489. See id. at 239.

490. See id. at 71; supra note 451 and accompanying text.

CREATIVITY WITHOUT IP? 1361

non-combat survival horror has ascended in popularity and

spawned numerous clones.

491

3. Alternative Funding

Crowdfunding also provides indie studios a buffer against

the financial impact of cloning. Indie studios launch campaigns

on platforms like Kickstarter and Indiegogo to fund their

games.

492

These campaigns typically consist of early-stage

presales: supporters pay money upfront in exchange for a copy

of the game months or years later.

493

This dampens commercial

risk. If the developer has already covered its expenses and paid

its employees, it is not fatal to the studio if a clone outcompetes

the game after its release.

494

The unfortunate side effect is that crowdfunding may also

inadvertently contribute to a decline in quality. Pressure to

succeed on the market provides an incentive for studios to

release a well-polished game that will receive high reviews and

sell an adequate number of copies. Studios that make enough

presales through crowd funding can afford to worry less about

the quality of the final release.

4. The Pressure of Mobile

Mobile games pose a threat to indie studios because many

mobile developers stand outside the indie community but make

games similar in scope. Indie studios enjoy some measure of

security vis-à-vis other indie studios because they can count on

shared norms to mitigate copying. They need not worry about

copying by major studios because AAA publishers generally lack

interest in making similar games. Even setting aside niche

aesthetics and themes, indie games tend to be modest in scope,

while AAA publishers seek to create expansive worlds with

491. See PERRON, supra note 487, at 239. See generally Marak, supra note

185.

492. See supra notes 170–171 and accompanying text.

493. See supra note 171 and accompanying text.

494. To a degree, crowdfunding shifts game development away from the

market-based funding system contemplated by IP law and toward a patronage

system where interested parties invest in promising creators. Cf. M

ARK ROSE,

1362 79 WASH. & LEE L. REV. 1285 (2022)

hours of gameplay, if not an experience that extends indefinitely

with ongoing subscription revenues.

495

None of these obstacles deter non-indie mobile developers.

Mobile developers are heterogenous—some are major

corporations while others are shoestring operations in other

countries—but few identify with the indie community.

496

As a

class, mobile games also tend to be relatively simple. Some of

the most popular mobile games are built around just one central

game mechanic, like the slingshot action of Angry Birds or the

match-three puzzles of Candy Crush Saga.

497

Indie studios that

develop an innovative new game mechanic face the risk of

mobile developers appropriating the mechanic and releasing

competing games. This was the context for the Threes! and 2048

story introduced above.

498

The makers of Threes! spent months

honing the number-combination mechanic for their puzzle

game.

499

After release, the makers of 2048 created their own

version in mere days.

500

2048 subsequently dominated the

market partly because the developers made the game easier,

enticing a wider audience, and in even greater part because they

released the game for free and monetized it through in-app

advertising.

501

The latter developer won out not because its

makers put in the work to make a better game, but because they

appropriated a well-honed game mechanic and applied their

superior fluency with the marketing and monetization of

smartphone apps.

502

495. See supra Part I.C.1.

496. See N

ICHOLS, supra note 62, at 100, 104. Norm enforcement is further

complicated by the diversity of contexts in which the industry operates outside

the United States. See Hailey J. Austin & Robin J.S. Sloan, Through the

Shanzhai Lens: Reframing the Transmedial Copying and Remaking of Games,

12 BRITISH J. CHINESE STUD., July 2022, at 133, 148 (using a case on Chinese

copying to develop “an additional lens through which to understand and

interpret game remakes and copying in different cultural contexts”).

497. See N

ICHOLS, supra note 62, at 93.

498. See supra notes 192–196 and accompanying text.

499. See Vanhemert, supra note 192.

500. See id.

501. See id.

502. See id.

CREATIVITY WITHOUT IP? 1363

V. I

MPLICATIONS

Critics of the negative-space literature argue that

formalization of property rights is inevitable for any industry

that grows sufficiently profitable or cost intensive.

503

Their

position finds confirmation in the perception that the

negative-space case studies are confined to niche areas of

creative production.

504

French cuisine, tattoos, and comedy are

not major industries compared to fixtures of popular culture like

movies or music. Nor are recipes, tattoo designs, or jokes

expensive to produce; they can be devised by a single individual

or small team without need to coordinate the hundreds of

workers involved in producing something like a film.

505

The

fashion industry is a more complicated example. Fashion is a

major industry, but one where trademark law is important even

without copyright.

506

Moreover, if we focus on the design of

specific garments, as Raustiala and Sprigman did, then we once

again find ourselves looking at a type of creative work both

inexpensive to produce and within the grasp of an individual

designer.

507

Scholars have yet to dispel this criticism by providing a case

study that identifies a major creative industry operating in IP’s

negative space. To be sure, scholars have identified examples in

science and engineering. Yochai Benkler pioneered the study of

commons-based peer production, which undergirds development

of the open-source software constituting a significant portion of

our digital infrastructure.

508

Addressing the negative-space

literature directly, Amy Kapczynski detailed the operation of

503. Kapczynski, supra note 7, at 1545–46; see Barnett, supra note 12, at

1755. See generally Harold Demsetz, Toward a Theory of Property Rights, 57

M. ECON. REV. 347, 347–57 (1967) (positing property rights emerge whenever

benefits of formal property rights exceed costs of administering a property

system).

504. See Kapczynski, supra note 7, at 1545.

505. See Barnett, supra note 12, at 1785.

506. See Dreyfuss, supra note 12, at 1450.

507. See Raustiala & Sprigman, The Piracy Paradox, supra note 1, at

1705–17.

508. See Benkler, Coase’s Penguin, supra note 408, at 381–84. Wikipedia,

a non-fiction peer-production project, has likewise been extraordinarily

impactful. See Y

OCHAI BENKLER, THE WEALTH OF NETWORKS: HOW SOCIAL

PRODUCTION TRANSFORMS MARKETS AND FREEDOM 70–74 (2006).

1364 79 WASH. & LEE L. REV. 1285 (2022)

the Global Flu Network—the collaborative network responsible

for creating the flu vaccine each year—to vindicate the existence

of a capital-intensive site of intellectual production of immense

social importance that operates without recourse to IP.

509

Yet

the implications of these studies for creative production remain

unclear. In addition to focusing on scientific rather than creative

pursuits, these examples feature modes of production distinct

from those typically utilized in negative-space creative

industries: they involve the unique dynamics of commons-based

peer production and open science rather than those of the

copy-resistant markets and community norms featured in fields

like fashion and comedy.

510

Against this backdrop, the video game industry provides a

crucial example. The foregoing discussion of video games

demonstrates the viability of creative production without

extensive IP protection in a high-revenue, capital-intensive

industry. Though many prior negative-space case studies were

confined to small-scale creative production, study of the game

industry shows this mode of production exists in a major

entertainment sector. Remarkably, this case study also

advances two threads often treated separately in the literature:

the AAA sector of the industry instantiates a low-IP equilibrium

made possible because features inherent to big-budget games

make them copy-resistant while the indie sector features

norm-based enforcement.

But the video-game industry is more than just another

example. It also calls the assumptions and focus of

negative-space scholarship into question. Prior studies have

been imprecise in their criteria for the existence and viability of

a negative space. Most seem to suggest that it is sufficient to

show that creative production occurs in a sector without full IP

protection. This sets the bar too low. As the following discussion

shows, to truly evaluate creative production without IP requires

more robust definitions of success, more attention to the

diversity of strategies throughout each industry, and more

recognition that the stability of any IP or non-IP regime is

contingent. The video game industry also opens a new paradigm

509. See Kapczynski, supra note 7, at 1542.

510. See Benkler, Coase’s Penguin, supra note 408, at 375–76; Kapczynski,

supra note 7, at 1591–95.

CREATIVITY WITHOUT IP? 1365

for thinking about the creative industries as a whole. The world

is not neatly divided into “full-IP” and negative-space

industries. Rather, all creative industries feature a combination

of elements protected by IP, elements subject to de facto

protection, and elements that are freely appropriable. To insist

on an artificial divide is to obscure trends that cut across both

sides of the line.

A. Measuring Success

This case study underscores the need to go beyond the

threshold question of whether creative production is possible

without IP. More recent contributions to the negative-space

literature have recognized that the configuration of IP and

non-IP protections impacts not only the number of new works

produced—the usual concern of IP policy—but also their

substance and ultimate social utility.

511

The video game

industry provides a rich case study to interrogate these impacts

further.

1. Revenues and Productivity

Assessing the revenues and productivity of the current

regime relative to potential alternatives is one starting point for

analysis, though this assessment is indeterminate with present

data. Part of what makes the video game industry attractive for

study is its financial success. As a $170 billion-per-year

industry, it generates tremendous revenues.

512

It is also

successful relative to other sectors of the entertainment

industry, as evidenced by how thoroughly its revenues surpass

those of Hollywood and the music industry.

513

There is also the question of productivity. Conventional

analysis of creative production—throughout IP scholarship but

also in some of the negative-space literature—often seeks to

511. See, e.g., Kapczynski, supra note 7, at 1546 (“Magicians and

comedians produce creative works, to be sure, but do they produce enough of

them, or the right kind, from a social perspective?”); Sprigman, Positive.

Thoughts, supra note 370, at 258–59 (reflecting on how changes in jokes’

substance accompanied the emergence of anti-copying norms).

512. See Browning, supra note 17.

513. See sources cited supra note 18.

1366 79 WASH. & LEE L. REV. 1285 (2022)

calibrate the system to maximize output.

514

The present

arrangement performs well in absolute terms, with thousands

of releases on Steam each year, hundreds on consoles, and tens

of thousands more for mobile.

515

We do not know how many

games would be produced in a counterfactual scenario with

greater or lesser formal protection. We have only the assertions

from some developers that the present arrangement is

preferable to greater IP because formal protection for game

mechanics would inhibit the creation of future games.

516

2. Creative Content

IP scholars and video game critics are of course also

concerned with indicators other than raw productivity. The

industry’s exclusion mechanisms and competitive strategies

shape not only how much is made but also the substance of it.

This aspect of competition without IP has been observed in

comedy.

517

One reason jokes have become more

autobiographical, scholars hypothesize, is that it makes them

harder to appropriate despite thin copyright protection.

518

Some trends in game development likewise embody design

decisions that make games more copy resistant. Among AAA

publishers, intense reliance on sequels takes advantage of

formal IP protection via trademark and character copyright; it

also leads to more of the same. AAA games also enjoy de facto

protection because key elements are expensive to copy. Pursuit

of these strategies impacts the substance of what is made

beyond encouraging sequels. Consider “open world” gameplay,

which provides a sprawling environment for players to explore

rather than discrete levels.

519

Many players enjoy the model, but

it is expensive to develop this volume of content and it forecloses

514. See Bair & Pedraza-Fariña, supra note 356, at 1076.

515. See supra note 436.

516. See, e.g., Phillips, supra note 46, at 149; van Roessel & Katzenbach,

supra note 179, at 411.

517. See Kapczynski, supra note 7, at 1547 n.37.

518. See supra notes 387–388 and accompanying text; cf. Chance

Solem-Pfeifer, ‘Jokes Seth Can’t Tell’ Is the Best New Segment in Late Night,

ULTURE (July 15, 2016), https://perma.cc/WQU9-F8CV (“Meyers would be

off-brand and out-of-bounds to do the material, but remiss to let it die in the

writer’s room.”).

519. See Muncy, supra note 145.

CREATIVITY WITHOUT IP? 1367

the possibilities of a more tightly crafted narrative.

520

consider games with full voice acting. Such dialog is more

immersive, but also more expensive.

521

It also imposes

constraints on the games’ writers—they must finalize dialog

earlier in development so it can be recorded, and budgetary

constraints preclude the breadth and depth of earlier text-based

approaches.

522

Indie developers, by contrast, define their content in

opposition to what they perceive as mainstream.

523

This is

simultaneously expressive and instrumental: niche or

controversial subject matter is less likely to be copied. There

may be social value in this insofar as it encourages development

of a wider array of perspectives. For the same reasons niche

content is unlikely to be copied, however, it is also unlikely to

sell many copies, cabining the financial incentives that might

support such diversity.

3. Broader Impact

Examining the total social impact of games is beyond the

scope of this paper. To be sure, the predominance of

market-based incentives skews industry investment toward

what is popular, and money spent on first-person shooters might

be better spent on games that promote human connection or

something entirely different, like renewable energy research.

524

But these objections cut across essentially all creative

production, in or out of IP’s negative space.

525

More germane to the present discussion is the observation

that the strategies developers have adopted in lieu of IP impact

the social utility of games in specific ways. As in the fashion

industry, the planned obsolescence of each console generation

produces significant waste with consequent harms to the

environment and the marginalized communities where that

520. See id.

521. See N

ICHOLS, supra note 62, at 126.

522. But see Shreyas Nivas, The Promise of Voice AI in Game Development,

ENTUREBEAT (Sept. 14, 2020, 6:16 AM), https://perma.cc/3FPD-FTA6.

523. See supra Part IV.C.2.

524. See Kapczynski, supra note 7, at 1546–47.

525. See id.

1368 79 WASH. & LEE L. REV. 1285 (2022)

waste is dumped.

526

Moreover, the move to software as a service,

and the ensuing drive to retain players, has driven developers

to compete in some instances not by making better games, but

by designing more addictive gameplay loops and exploiting

common decision-making foibles to keep players coming back

day after day.

527

Developers’ pursuit of formal rights other than copyright

also has wider societal consequences. For example, the game

industry has moved toward non-disclosure agreements (NDAs)

to reduce its exposure to copying via employee leaks, but these

agreements come at the expense of employee mobility,

knowledge sharing, and innovation.

528

As a collateral

consequence, these NDAs also reduce industry transparency,

thereby insulating it from scrutiny.

529

B. Success for Whom?

Divergence in competitive strategies between AAA and

indie developers also speaks to a larger issue with the study of

creative industries: the need to account for variation within each

industry. Stepping back to consider who wins in the industry as

a whole and within each subsector is necessary to answer the

sorts of questions the negative-space literature sets out to

answer.

Even basic descriptive claims about whether the industry

relies on IP are difficult to establish without attending to

intra-industry variation. Prior criticism of the negative-space

literature has touched on this. As one scholar observed, top

performers in ostensibly low-IP fields like comedy turn to formal

IP protections to secure rights in recorded performances.

530

Superstars in the indie gaming sector have likewise turned to

trademark, much like AAA developers, after finding themselves

526. See supra notes 131, 382 and accompanying text.

527. See supra notes 452–454 and accompanying text.

528. See J

AMIE WOODCOCK, MARX AT THE ARCADE: CONSOLES, CONTROLLERS

& CLASS STRUGGLE 64–65 (2019); see also Orly Lobel, Exit, Voice & Innovation:

How Human Capital Policy Impacts Equality (& How Inequality Hurts

Growth), 57 HOUS. L. REV. 781, 784 (2020) (describing NDAs as “impediments

to mobility”).

529. See W

OODCOCK, supra note 528, at 64–65.

530. See Dreyfuss, supra note 12, at 1450.

CREATIVITY WITHOUT IP? 1369

with a hit like Minecraft or Stardew Valley.

531

Critics who argue

greater profits in the industry inevitably lead to greater reliance

on formal IP

532

paint with too broad a brush; greater profits for

individual actors in an industry may lead to greater reliance on

formal IP by those stars relative to other participants.

Breaking the analysis apart is also necessary to evaluate

normative arguments about whether the configuration of IP and

non-IP protections is working. Take the lack of formal IP for

game mechanics. Even the straightforward question of how lack

of IP impacts financial success depends on the subsector. It

seems to be a non-issue for AAA games since gameplay

innovations are not their selling point; they borrow mechanics

from other games and have theirs borrowed in turn.

533

It is,

however, a problem for indie games, whose core innovations

often center on gameplay.

534

And it is a boon for non-indie

developers working in mobile development because they may

freely poach popular indie innovations and monetize them.

535

Notice also how this segmentation intersects with more

complicated questions of how the absence of thicker IP impacts

creativity. AAA games face criticism for redundancy and lack of

imagination in part because they direct most of their

investments toward elements with de facto protection from

copying, which may yield games innovative in their technical

artistry rather than gameplay or storytelling. Indie developers

continue to innovate in aspects like gameplay and theme,

though the risk of cloning by outside actors may diminish their

incentives to do so.

Some configurations of legal and non-legal protections

impact market entry directly. An important critique of IP rights

is that they contribute to market concentration, with potentially

deleterious effects for innovation.

536

Non-IP exclusionary

strategies can, unfortunately, have similar effects. Recall

531. See, e.g., SCHREIER, supra note 143, at 79.

532. E.g., Barnett, supra note 12.

533. See supra Part I.C.1.

534. J

UUL, supra note 24, at 34–35; see supra Part I.C.2.

535. See supra notes 496–502 and accompanying text.

536. For the canonical account, see Kenneth J. Arrow, Economic Welfare

and the Allocation of Resources for Invention, in T

HE RATE AND DIRECTION OF

INVENTIVE ACTIVITY: ECONOMIC AND SOCIAL FACTORS 619 (1962).

1370 79 WASH. & LEE L. REV. 1285 (2022)

Nintendo’s response to the crash of 1983.

537

That crash, like the

1977 crash before it, was precipitated by the proliferation of

low-quality games including low-effort clones.

538

In the absence

of legal protection, Nintendo implemented technological

protection and took an active role in choosing which developers

would be allowed to bring their games to the popular Nintendo

console.

539

Other console manufacturers like Sega followed

suit.

540

To enter the market required satisfying a gatekeeper.

Now, entry into the mainstream gaming market is regulated by

the sheer expense of producing a competitive AAA title.

541

Scholars of innovation theory warn that gatekeeping has stifled

the diversity of ideas in other contexts, calling for further

investigation of this dynamic in gaming.

542

The indie sector’s reliance on community norms also creates

potential barriers to entry. Norms-based protection for a

creative industry has significant intuitive appeal; it can be

calibrated to the needs of a particular community in a way

general copyright law cannot and it can be enforced without the

time and expense of litigation.

543

But, as noted above, norms

tend to entrench the status of established insiders within a

creative community.

544

C. Contingent Stability

The emerging precarity of indie studios also underscores

just how contingent the stability of any protection regime is. The

ultimate impact of any configuration of rights depends on wider

developments in technology, the market, and society at large.

545

537. See supra notes 106–109.

538. See supra notes 98–101 and accompanying text.

539. See supra notes 106–109 and accompanying text.

540. See supra notes 113–118 and accompanying text.

541. See supra notes 143–146 and accompanying text.

542. See, e.g., B

ARBARA VAN SCHEWICK, INTERNET ARCHITECTURE AND

INNOVATION 320–28 (2010); Mark A. Lemley & Lawrence Lessig, The End of

End-to-End: Preserving the Architecture of the Internet in the Broadband Era,

48 UCLA

L. REV. 925, 945 (2001).

543. See supra notes 399–400 and accompanying text.

544. See supra note 402 and accompanying text.

545. See Perzanowski & Darling, supra note 8, at 5–6 (“The dominant

narrative of IP largely overlooks the role that social norms, marketplace

strategy, and architectural changes can play in shaping an environment

CREATIVITY WITHOUT IP? 1371

This concern is implicit in the low-IP equilibrium terminology

used in negative-space scholarship.

546

The absence of copyright

in fashion design is viable because several factors come into

alignment. When a fashion house introduces a design, it enjoys

a first-mover advantage because, for a time, it is the only one

selling the design; it takes time before imitators can start

production, especially since most fashion houses are situated in

the developed world while many garment factories are situated

in less-developed nations.

547

They make money by selling to

fashion-forward customers during that window. Over time,

retailers diffuse the design to the masses, fashion-forward

customers demand novelty, and fashion houses introduce

something new, repeating the cycle.

548

This equilibrium has

strained as advances in communications technology have

facilitated ever faster copying.

549

A copyist can snap photos from

a Paris runway and text them to a garment factory in seconds.

These developments should be of interest even if the equilibrium

holds steady because they mark the opportunity to study what

makes an equilibrium stable.

550

The video game industry illustrates this point further

because its history is one where the equilibrium has come and

hospitable to creativity.”). See generally LAWRENCE LESSIG, CODE VERSION 2.0

(2006).

546. See, e.g., Raustiala & Sprigman, The Piracy Paradox, supra note 1, at

1698–99; Rosenblatt, supra note 7, at 322.

547. See Raustiala & Sprigman, The Piracy Paradox, supra note 1, at

1761–62; Rosenblatt, supra note 7, at 346–47 (“[F]irst mover advantages and

network effects explain how originators continue to thrive in the absence of

strong intellectual property rules . . . .”). But see Raustiala & Sprigman, Faster

Fashion, supra note 382, at 542 (discounting this advantage).

548. See supra notes 377–380 and accompanying text.

549. See, e.g., Arielle K. Cohen, Designer Collaborations as a Solution to

the Fast-Fashion Copyright Dilemma, 11 C

HI.-KENT J. INTELL. PROP. 172

Supreme Court’s Decision in Star Athletica v. Varsity into an Art-First

Approach to Copyright Protection for Fashion Designers, 26 UCLA

ENT. L. REV.

19, 52–53 (2019). But see Raustiala & Sprigman, Faster Fashion, supra note

382, at 541–42 (“Those claims always seemed ahistorical and overblown—the

camera and the fax machine made fashion copying rapid decades ago—and

now, after more than a quarter-century online and the industry yet to be

destroyed, we submit that the Internet has been exonerated . . . .”).

550. See BJ Ard, Making Sense of Legal Disruption, 2022 W

IS. L. REV.

FORWARD 42, 51 (arguing disruption arises when existing institutions lack the

capacity to recalibrate the regime).

1372 79 WASH. & LEE L. REV. 1285 (2022)

gone. Cloning posed a real threat in the Pong era because games

were simple and cheap to copy.

551

Through the 1980s and 1990s,

console manufacturers took measures to increase game quality

and weed out low-effort clones.

552

Through design and business

strategy, the manufacturers inserted themselves as gatekeepers

over which games would be released. By the early 2000s,

however, games had become copy resistant because they were

expensive to duplicate.

553

Gatekeeping was no longer needed to

halt cloning, or at least so it would seem from the dominant

players’ opening of their consoles to third-party developers.

554

parallel, however, indie and mobile game developers introduced

games that were once again simple and relatively cheap to

produce.

555

The threat of cloning likewise reappeared.

556

These studies also demonstrate that the viability of a

particular arrangement in one area of law is often contingent on

the state of others. In fashion as in video games, trademarks

remain available and they favor established incumbents.

557

Major studios also benefit from patent protection for graphical

advances and from trade secret law and its related employee

restrictions that help them leverage the talents of designers.

558

The creative industries historically have not been shy about

seeking the expansion of copyright.

559

But it may be that we

have not seen the same sort of agitation with respect to video

games because the established studios are satisfied with the

status quo.

560

551. See supra Part I.A.

552. See supra Part I.B.

553. See supra Part I.C.1.

554. See supra Part I.C.1.

555. See supra Part I.C.2.

556. See supra Part I.C.2.

557. See supra Part IV.B.2.a.

558. See supra notes 528–529 and accompanying text.

559. See, e.g., J

industry involvement in the Copyright Act of 1976); id. at 128–45 (detailing

industry involvement in the Digital Millennium Copyright Act).

560. Indeed, this sort of political equilibrium was the focus of the original

fashion case study. See Raustiala & Sprigman, The Piracy Paradox, supra note

1, at 1699 (“When we use that phrase [‘low-IP equilibrium’], we mean that the

three core forms of IP law . . . provide only very limited protection for fashion

designs, and yet this low level of legal protection is politically stable.”

(emphasis added)).

CREATIVITY WITHOUT IP? 1373

Consider also the impact of other areas of the law on the

substance of what is produced. The availability—or lack

thereof—of copyright and trademark shape game quality. But

so does labor and employment law around issues like the

enforcement of NDAs.

561

Pressed to explain why game quality

has suffered in recent years, some commentators point to poor

working conditions—crunch and financial precarity force

studios to rush games out the door before they are finished.

562

Labor and employment law may be just as important as IP law,

if not more so, for diagnosing and addressing these problems.

D. Breaking the Binary

Do video games occupy IP’s negative space? The question

defies easy answers, particularly in the AAA sector. Copyright

covers finished games on the consumer side, trademarks and

similar rights play a major role throughout development, and

this Article has barely touched on the link between patents and

the technical artistry of video game hardware and

programming. Yet game design itself lacks substantial formal

protection and popular themes are freely appropriable as ideas

or tropes. This has led to cloning and reliance on non-IP

strategies for dealing with cloning. If the use of formal IP for

some aspects of game design disqualifies the industry, then the

paradigmatic negative-space industries rest on the same shaky

foundations. Most consumers experience comedy and magic not

through live performances, but through copyrighted

recordings.

563

We see high-profile copyright suits over the

duplication of tattoo art in films and movies even though

litigation is not the standard way of addressing copying among

tattoo artists.

564

And fashion, the original object of inquiry, is

561. See supra notes 528–529 and accompanying text.

562. See, e.g., Alex Pareene, Video Games are a Labor Disaster: Why Do

Game Studios Keep Imploding?, NEW REPUB. (June 25, 2021),

https://perma.cc/W9YB-ZWFT.

563. See Dreyfuss, supra note 12, at 1450.

564. See, e.g., Solid Oak Sketches, LLC v. 2K Games, Inc., 449 F. Supp. 3d

333 (S.D.N.Y. 2020); David Kravets, Hangover Tattoo Lawsuit: Can You

IRED (May 27, 2011, 3:25 PM), https://perma.cc/HB9W-

7QDP.

1374 79 WASH. & LEE L. REV. 1285 (2022)

the paradigmatic example of an industry centered around

trademarks.

565

Placing industries on one side or the other of the dividing

line is not what matters. That taxonomy was important for

answering the preliminary question of whether creative

production could be sustained without IP. The scholarship has

settled that question decisively. The divide is less helpful for the

remaining questions, like the impact of a particular

configuration of rights on the substance of what is produced, the

distributive consequences of that protection regime, and the

regime’s long-term stability. Every sector of creative production

features some elements that are legally protected, some subject

to de facto protection because of copy-resistant features or

enforceable anti-copying norms, and some elements free for

appropriation. What new insights may come from comparison

across these sectors? The work has already begun in studies

synthesizing the negative-space literature alongside “natural

experiments” in fields like music that have experienced de facto

reduction in copyright protection due to file-sharing.

566

Scholars

have also studied the interplay of proprietary software, which

utilizes conventional copyright protection, and open-source

software, which takes a contrary stance toward IP.

567

Further

work remains to disentangle the formal and de facto protections

of the “full-IP” creative industries, how they have changed over

time, and how they align with the observations of the

negative-space literature.

ONCLUSION

The video game industry vindicates the argument that

capital-intensive creative production is possible with thin

standard paradigm for studying IP’s negative space. The time

has come to move past the question of whether such production

is possible. Every industry has its own configuration of IP and

non-IP protections, and it is now incumbent on those of us

working in this space to explore how these regimes shape what

565. See supra note 381 and accompanying text.

566. See Sprigman, Copyright and Creative Incentives, supra note 390; see

also L

UNNEY, supra note 61, at 74.

567. See, e.g., Benkler, Coase’s Penguin, supra note 408.

CREATIVITY WITHOUT IP? 1375

the industry produces, what its broader impacts are, and which

creators can enter the market. Each of these industries has a

history with lessons for how changes in technology, the market,

and the works themselves make a particular production regime

viable—or push it to fail. Emerging social and technological

trends will continue to shape and reshape these industries and

test the limits of our frameworks for understanding them.

Beyond its implications for IP’s negative space, the video

game industry also sets the paradigm for studying creative

production in the information age. This is not an argument for

video game exceptionalism, but for recognition of greater

complexity throughout the creative industries. The study of

creative production has focused too long on a dated paradigm

modeled on the operation of legacy industries like Hollywood

and the recording industry in the twentieth century. Examining

the video game industry compels us to recognize and grapple

with the complex realities of partial legal rights, overlapping

legal and non-legal protections, and the existence of very

different regimes for the regulation of competing developers

relative to consumers. Only by confronting these challenges can

we progress our understanding of how the law intersects with

creative production and align our prescriptions for legal reform

with the realities of culture and entertainment in the

twenty-first century.