For those new to the issue, the social game company King recently filed with the U.S. Patent and Trademark Office to trademark the common words "candy" and "saga". Aside from that being a legal minefield as common words are, well, common, King then proceeded to file legal disputes with other game studios who used either word in the title of their games... even if they weren't remotely related to King's property.
The breaking news side of this issue is that King has just now settled and/or stepped down from some, if not all, of their claims. The troubling part of that last sentence is the "settled" part which suggests that they still intend or have some way of enforcing a level of ownership over common word usage.
I sat down over the Internet with The Men Who Wear Many Hats to discuss, among other things, their opinions on the whole King trademark debacle. TMWWMH participated in the Candy Jam to show their support of indies and to point out the King's folly in attempting to trademark common words.
All Fail the King
Intern Saga was part of the Candy Jam protestation of King's generous lifting from other games and asserting their claim to common words. What are your thoughts now that they have just backed down from some of their public copyright claims?
Everyone seems pretty tight lipped at this point so everything I can say about it is wild speculation. I wouldn't be surprised if there were NDAs involved. As far as I've seen they only backed down on the candy trademark because their initial goal of taking down Candy Swipe was better served through them buying an earlier trademark that trumped Candy Swipe's. As well they started facing opposition against other larger companies in European countries, I believe. Stoic and Candy Swipe appear to have come to some agreeable terms before going to court. We don't know what those terms are but regardless, King likely backed off because they saw the cost in dollars and bad press to push the issue. I just hope it didn't cost these other guys any money to get to this point. I know it cost us all a lot of stress and anger.
Why do you think that developers and gamers were so unified in their fight against King instead of a company like Zynga who outright copied many popular mobile games?
First off, the community is growing closer and closer and getting better at defending ourselves. Or at least becoming more vocal about the bullshit that some people will pull. I think Zynga was the first major asshole company that came to my attention, in regards to cloning. It set the stage. Big guys vs. Little guys. It makes for a clear good vs evil story that people can attach to quickly.
In the case of King.com attempting to trademark such generic words and swinging their legal prowess around with no ethical regard... that story was even easier to see the "bad guy." Telling everyone they can no longer use the words candy or saga... those are very common words and it affects everyone. We got pissed. As well, their violation notices were obviously bat-shit crazy. No one in the world would confuse Banner Saga and Candy Crush Saga. But part of that insanity is the flawed trademark system we currently use.
P.S. That's the real target here. King are dicks but if we can't change the trademark system, it won't stop with them.
Is it the trademarking or the copying that stoked the flames?
I think a lot of developers are battered and broken when it come to "cloning." We find it harder and harder to muster the anger to care anymore. There is a lot of grey area there and the law is not on our side. It's total bullshit but we're the only one's who seem to care. Consumers don't know and often don't care.
So in this case, it was using the broken legal system that riled us up.
Is the practice of copying and then trademarking hypocritical in a sense?
If we were to consider Organ Trail in a similar light, how does one successfully navigate copying, emulating, paying tribute to, credit-giving, and/or novelty?
We have created an entirely new game based on the core mechanics of the original Oregon trail. Luckily, basic game mechanics are not copywrittable. If no one could have made a game similar to Mario than the platformer genre would not be a prevalent as it is today. We safely use parody to reference our inspiration but have comfortably distanced ourselves from it. Part of our long name, "Organ Trail: Director's Cut," the heavy use of zombies in all the promotional art, etc. are all used to make it clear that our game is different. We also have never taken any legal steps to compromise our inspiration and I would argue that the audience between the two has little overlap since Oregon Trail still exists in the educational game genre. We have a pretty healthy relationship with The Learning Company, who currently owns the Oregon Trail IP. They have promoted Organ Trail several times across several social media outlets. They recognize that our game is a love letter to their IP and only serves to grow their brand. We never deny our inspiration and The Learning Company is even in our credits.
We spent a lot of time making sure we did it right. I think we did.
From protecting themselves against litigation to defending their creations from being copied, odds are very clearly not in favor of indie studios. Take, for instance,Tiny Tower by NimbleBit. Zynga outright copied it and NimbleBit had very little recourse to stop them. Should we expect this to be the regrettable status quo?
The law is not on our side so the best tool we have right now is transparency and advocacy.
Changing gears, your group has a long history (or at least plans of) supporting mobile as it was part of the Organ Trail: Director's Cut Kickstarter. Has mobile been an integral part of your game-making process?
We use Unity to develop our games. If we design our game intelligently, there is little barrier to releasing on all platforms. So for Organ Trail: Director's Cut, it's just about doubled our profit to be on mobile and desktop. And we're not done their either. Expect to see Organ Trail: Director's Cut on new platforms this year.
Mobile has developed so quickly to be a powerful platform for Indies as a means to, more or less, affordably and quickly create games. How closely do you think that this mirrors PC development?
Well if you are talking about the early days of PC development where you could easily self publish your games... there are some parallels. That model however brought about the crash of the industry near the end of the Atari age.
The solution at the time seemed to be Nintendo's "seal of approval" and publishers that built a brand and set a quality bar. Now, those walls are breaking down too. Self-publishing came back and mobile was the ideal platform because you could make smaller games that didn't have to match the expectations that console games had of being 30 hour blockbusters. The problem once again is the lack of quality control. On mobile, there are hundreds of Flappy Bird clones. The current mobile store front is a cesspool. Meanwhile Steam is the current reigning champion for quality indies. There is a little bit of curation and indies can easily get on it (mostly), but Valve knows their model isn't perfect either which is why their systems are constantly in flux with results like Greenlight.
With more and more small studios, and the fact that Apple will never give enough shits about games to help create a better storefront, we're looking to move away from mobile as our core platform. Mobile is still great for small games but it's too risky for a bigger game. If you don't get featured or slapped on the main page in some way, you might never get noticed.
You commented on your blog that the iOS App Store recently rejected Intern Saga. Apple has a well established history of making decisions and not having to justify them. Why do you think that cause-oriented games are not consistently permitted when compared to cause-related music, movies, or books?
Apple has made it clear that they don't take games seriously and they don't want to. It's easier for them not to and partially because their consumer's don't demand any different. So it's up to us a culture to change first, I think.
Games outside of the mobile space have long since tackled complicated issues regarding sexuality, class disparity, ethnic and social issues… Do you think that the “tone” or, not being afraid to be overt with intention, are what set Intern Saga apart?
I'll never know. But I'm sure we also broke a million rules about UI that looks like the menus on the iPhone itself too. There really were a lot of reasons to reject Intern Saga. I'm sure picking on Apple and one of their biggest games was not appreciated either.
Do you think that games are a better way to engage, inform, and embolden people around an important issue in ways that traditional content can’t?
Not yet. Games are an awful medium for serious issues right now. The medium is in it's infancy and we need to take a lot of steps forward in how we make games and how people see games before they become a viable platform for delivering serious discourse. One of the biggest hurdles is the cost. It's much cheaper and more human to film something happening and talk over it, as opposed to creating all the assets and mechanics to support a virtual interactive scenario. It's a design nightmare and most of us aren't anywhere near good enough at this stuff yet.
There's a lot to overcome but I know we will get there.
Gentlemen, at Maximum!
Your two successful Kickstarter campaigns had very low goal totals. Does this, anticipating of bare-bones financing, inform your development process?
I can give a whole 10 week class about how to run a Kickstarter. But the jist of it is that if you are going to make the game anyway, make the goal lower. People want to back a success and you end up with more than you originally wanted in most cases. We also didn't value our time when we did the OT Kickstarter.
The second Kickstarter for Max Gentlemen was almost a parody of Kickstarter itself. We asked for $500 and expected $10k. We got $12. But we actually probably lost money on that Kickstarter because it all went to reward fulfillment. We had enough money from OT to fund MG but we wanted to use the Kickstarter as a way to build excitement and sell swag. There is a lot more to it but that's the core of it.
We don't really take financing into account when we make games. We make them until they are good. Because of that... I'd wager that Max Gentlemen will lose us about $50k when all is said and done. So, I hope it does better than I calculated.
Because your goals are low, does this help you gauge reception before a project is fleshed out more than something like Steam Greenlight wouldn't?
One of the major benefits of a Kickstarter campaign is being able to gauge public interest so you know if your game connects with your audience or not. The only people who engage with you in that channel are supportive of the game. Something like Greenlight is full of a lot of negativity and I didn't really enjoy engaging that community. Plus Greenlight has changed so much since launch that I don't think I would recognize how it works anymore.
You proudly display your failed and rejected games on your blog. Why?
That's a blog feature we have not done in a long time. I was actually thinking of starting it back up.
I just recently gathered a list of all the game idea we've had since forming The Men Who Wear Many Hats. We've had 55 games: 7 releases, 5 Game Jam games, 19 prototypes and 24 that were merely ideas. We've easily spent a year's worth of our time working on projects that die off because they were bad ideas or we couldn't make them work.
Being a good designer is about failing, recognizing it and moving on. Sharing those failures is cathartic and helps demystify development for others.
As you don’t seem to hold precious one game, concept, or project, how do you think this helps your development process? Do you often times repurpose one thing (joke, character, mechanism) because it can be useful in a different application?
Max Gentlemen started as another game. We liked the world but the mechanics were awful. We held on to the part of the game that worked. Now it's a new game. So yes, we like to keep track of things that work in hopes of reusing them. I am wary of living in my past ideas though. Each year I become so much better at design and my old ideas become embarrassing to me. But at the same time it's hard to let go. There is a balance to strike and I think your team is there to help with that.
Most mobile games “feature” nag-ware and artificial constraints to encourage (force) people to pay. Max Gentlemen is free with paid content eventually. What motivated this decision?
I'm bad at business.
Do you have an opinion about MTX, or microtransactions, being prevalent in games ranging from Indie to AAA-level?
I hate the mixing of money and design. There isn't a single game that I have felt comfortable paying for in-game content. I do not like the direction the industry has taken but I think it's because it's been abused in most cases. I'm still trying to figure out "free-to-play." I don't think it's going to go away and I pray there will be a new direction for it that isn't predatory.
It's important to figure out how our community feel about us when we try "free-to-play" with Max Gentlemen but it's also about how I end up feeling too. I want to be able to sleep at night. We're trying to be as clean as possible with this but I think that just means we won't make any money. Oops.
Thanks for your time and thanks for your insight!
Don't forget all of the other Here Are Words interviews.