Making A Game Similiar To Another

[jalb]

Hello, I'm from Missouri, and my question is regarding copyright and trademark in the gaming market. Me and a friend have been working on a game, where your character is a worm, and you play shooting other worms. Which is closely related to the Worms Series by Team17. When contacting them, they said "any game that features Worms fighting other Worms with weapons is highly likely to be involved in legal action or proceedings," but after doing some personal research, I found out copyright does not protect against ideas, and trademark only protects designs, logos, phrases, words, etc. So I'm confused, why would a game that features worms fighting other worms with weapons cause a "legal action or proceedings"? Were they only trying to scare us?

I have another question as well, what all does that trademark protect, exactly? I know it protects "worms," their logos, and all that, but what about naming a game "wormz" (with a z) or "worms" in another language? How about adding on words, like "Killer Worms," would we get in trouble for that?

Thanks
-jalb

[quincy]

If your game is substantially similar to the other game, you could be infringing on their copyright. All design elements of a game are copyrightable, figures in a game are both copyrightable and can be trademarked, and names relating to the figures in the game can be protected under trademark law.

The rules of the game play are not copyrightable. You can use the idea of the game, but you cannot make yours similar or substantially similar to another game already produced. This includes the use of any names that identify the other game. The same or similar names can confuse consumers. Likelihood of confusion between your game and theirs can lead to a lawsuit.

Therefore, your best bet is to use the rules of the Worm game but do not use worms or the worm names, or any of the Worm Series design elements, unless you want to defend your use against a lawsuit that you have been warned may be forthcoming.

Have your game reviewed by an IP attorney prior to production, to ensure that it does not violate the copyrights or trademarks of another. Obtaining insurance is added protection.

[jalb]

Thanks, but I think you misunderstand what we're doing just a little (I should have given more detail). The rules of the game are very different between the two games, just about the only similarity is that the characters are worms, and that they fight with guns. The rules of game play are different. I understand how a complete remake could cause legal issues, but ours is not a remake.

It is to my understanding that copyright only protects what you make and that if it is reproduced differently, you have no rights to it (ex. a 3D model of a human being, you can create it, then another can create it differently).

[quincy]

With a model of a human being, there are only so many ways you can make it and have it look like a human being. Elements common to all human beings can be reproduced in a human being model with no problem - models of humans can have two legs, two arms, and one head and not infringe on another model of a human being.

If, however, your 3-D human being model copies elements that are original to another's model, then you risk infringement. If an original 3-D model of a human being is done all in blue, the blue color is an element that makes that model unique - to make your model all in blue could be infringement (depending, of course, on all sorts of other factors).

What a court would look at, should you be sued for infringement over your worm game, is what elements are copied that are unique to the other game. The court would then decide if the copied elements are enough of an infringement to support the game-maker's claims of infringement.

All elements common to a game are subtracted (removing the head, two arms, two legs from the game, so to speak). What is left are the original elements. The primary factor would be the substantial similarity between the unique elements of one work and the other, and if the supposed infringer had access to the original work from which he drew his inspiration.

If the rules of your game are different, that is a factor in your favor. If the characters are similar or the same, that is a factor against you. How the factors are weighed would be up to a court to determine.

The bottom line is that your use may be seen as infringing by the owners of the other game. If they see it as infringing, they can sue you. It would then be up to you to defend your use in court and this can be extremely costly.

SO, it would be wise for you to show both games to an IP attorney in your area, so that the attorney can give you a better assessment of your risks. No attorney can predict with certainty what a court's outcome will be, so there will always be some risk of losing an infringement action. That is why I suggest insurance as added protection.

[jalb]

That makes sense. Thank you.

[quincy]

You're welcome. Good luck with your game.