Deer Hunter Vs. Killshot: Why Specific Expression Matters More Than Similar Shooter-Genre Staples

from the not-like-the-other dept

Mon, Nov 10th 2014 9:05pm — Timothy Geigner

I imagine it must be very, very annoying to be the creator of a video game and to feel as though some other company came along, cloned your work, and is now making money off of that clone. It's this annoyance factor that likely leads to so many legal proceedings over game "clones", even if so many of them fail because the it's the expression that matters in copyright suits, not a general or generic idea. Unique expressions are what matter. Even in totally misguided legal attempts, those involved usually have the good sense to go after games that directly copy graphics and such, not the general ideas behind the games.

Which is simply not the case when it comes to Glu Mobile's lawsuit against Hothead Games over the latter's production of Kill Shot and its supposed straight cloning of Deer Hunter.

Glu Mobile is suing mobile game studio Hothead Games for copying it popular Deer Hunter 2014 mobile game. Hothead’s Kill Shot isn’t about hunting deer at all. Rather, you’re a sniper that hunts enemy soldiers. Nevertheless, Glu alleges in a federal lawsuit filed in San Francisco today that Hothead’s title violated copyright and trade infringement laws.

“Kill Shot is effectively a complete ripoff of our game Deer Hunter 2014,” said Chris Akhavan, the president of publishing at San Francisco-based Glu Mobile, in an interview with GamesBeat. “The only difference is that in Kill Shot, you are shooting humans. In our game, you are shooting deer and other animals.”

It's not the only difference, though. Let's get this started by saying that the games do indeed have similarities. They are both shooters undertaken from the first person perspective with realistic guns and aiming sights that are used to shoot living things. But those living things are different, the settings are different, the concepts and themes are different, and even the models of the guns, while both realistic, are different. This is straight copying only insofar as the copying is of common and generic shooter-game concepts. Even the image Glu Mobile hand-picked to include in their filing demonstrates this.

Yes, similar, but not the same, and even the similarities are of the basic shooter-game style variety. Yes, you can scope in on targets, but the scopes are different and scopes don't equal copyright. Yes, there's bullet time animations, but that doesn't equal copyright either, or else everyone owes the Max Payne franchise a pretty penny. While similar, these games aren't really any more similar than, say, Doom and Duke Nukem 3D. Or any other first person shooter from the 90's, for that matter. And this is from the image in their filing. Videos of the games in action show the differences more starkly.

Again, similar, but they're both shooters, so what did you expect? Generic genre similarities don't rise to copyright or trademark claims. The trade dress claim in particular seems misguided, since the themes involved are quite different and none of the names of the games or companies even come close to being similar. This should end up as yet another lesson that similar generic concepts, such as sniping and zooming, don't translate to cloning as far as copyright is concerned. And, while the filing accuses a lot of copying, the reader is left with the feeling that there isn't a whole lot of weight there.

Glu alleges that Hothead Games, based in Vancouver, Canada, copied things like Deer Hunter 2014’s marketing, tutorial, user interface, controls, virtual economy, pricing of items, and even some of its flaws. Akhavan noted, for instance, that a miscategorized assault rifle in Deer Hunter 2014 was also miscategorized in Kill Shot. Glu’s tutorial has 21 steps, of which Glu says Hothead copied 18. Many player reviewers mistake Glu Mobile as the publisher of Kill Shot because of the similarities, Akhavan said.

Again, similar, but not the same. It seems clear that Kill Shot was inspired by the type of game genre of which Deer Hunter is a part, but basic interface and control schemes are not creative expression of a protected kind, and pointing to similar mistakes within the games when it comes to whether a weapon qualifies as an assault rifle is a stretch (trust me, it's an easy mistake to make and get yelled at by gun activists for). I can see why Glu Mobile might be annoyed, but I think their time would be better spent building on the massive success of their gaming franchise than in court suing a competitor.

Glu Mobile v Hothead Games (1) (PDF)Glu Mobile v Hothead Games (1) (Text)

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Filed Under: clones, copying, copyright, deer hunter, expression, first person shooter, idea, kill shot, mobile games, video games
Companies: glu mobile, hothead games

16 Comments

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Anonymous Coward, 10 Nov 2014 @ 10:44pm

Clear cut infringement
This is clear cut infringement. They only changed some of the details to try to get around copyright infringement law. The very act of making some things different clearly makes this copyright infringement.
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- Dark Helmet (profile), 11 Nov 2014 @ 3:22am
  
  Re: Clear cut infringement
  Making things different makes it COPYright infringement? Nice use of the English language you have there....
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  - The Groove Tiger (profile), 11 Nov 2014 @ 7:23am
    
    Re: Re: Clear cut infringement
    Well, yeah, they're obviously trying really hard to "skirt the law" by complying with it, which is damn suspicious.
    
    Just like driving under the speed limit, means you're probably a terrorist and trying to hide your terrorist activities.
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  - Groaker (profile), 11 Nov 2014 @ 8:21am
    
    Re: Re: Clear cut infringement
    How many Romeo and Juliets are written every day? (And yes I know the Shakespearean version is not under valid copyright.)
    
    Just how many different plot lines are there in literary space? Variations of a very few themes. Perhaps we can flood the courts with every author bringing suit against every other author.
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  - Just Another Anonymous Troll, 11 Nov 2014 @ 8:22am
    
    Re: Re: Clear cut infringement
    Pssst... he's being sarcastic.
    Remember that old "compliance is circumvention" brouhaha with Aereo? It's still funny.
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    - Groaker (profile), 11 Nov 2014 @ 11:20am
      
      Re: Re: Re: Clear cut infringement
      I have seen far more outrageous comments that I took as sarcasm, but were not. Especially when the writer used the default name.
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- Dark Helmet (profile), 11 Nov 2014 @ 3:22am
  
  Re: Clear cut infringement
  Making things different makes it COPYright infringement? Nice use of the English language you have there....
  [ link to this | view in chronology ]
  - mrtraver (profile), 11 Nov 2014 @ 5:51am
    
    Re: Re: Clear cut infringement
    I thought that was sarcasm, and gave it my vote for funny. :)
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zem, 10 Nov 2014 @ 10:56pm

there is an error in the screenshots. no one is targetting their feet.
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Anonymous Coward, 11 Nov 2014 @ 4:32am

The mobile gaming space is so full of clones and clone derivatives that nobody should be complaining about anything.
Rovio made their fortune on a Crush The Castle and Trebutche clone.
Gameloft made their empire on copying just about every popular game out there.
King made all of their money on a clone.
Zynga is a notorious cloner.
There are no less than a metric fuck ton of snake clones on the market.
Hell, I'm sure even Deer Hunter is a clone of something else first.
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Andrew D. Todd, 11 Nov 2014 @ 5:08am

The Old Movie
There is a movie entitled The Deer Hunter (1978)

http://en.wikipedia.org/wiki/The_Deer_Hunter

http://www.imdb.com/title/tt0077416/

which is about three young men from an Appalachian mill town, who hunt deer in the mountains, and then go to Vietnam and hunt Viet Cong.

Who is cloning who?
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Bob V (profile), 11 Nov 2014 @ 5:34am

I get the whole advertising is content thing but since when is a lawsuit contents the advertising?
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Mason Wheeler (profile), 11 Nov 2014 @ 11:09am

OK, I haven't played either game, so I have to ask.

Why in the world would anyone want to use an assault rifle when hunting deer?
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- Michael, 11 Nov 2014 @ 12:44pm
  
  Re:
  Deer like sault.
  
  If you have a sault rifle, they will just want to come up to you and lick it.
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Anonymous Coward, 11 Nov 2014 @ 12:12pm

Yes they're quite similiar but Killshot isn't a 100% pile of boring ass crap :)
(98% maybe)
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Andrew D. Todd, 11 Nov 2014 @ 5:14pm

Once Upon a Deer.
I once met a deer face-to-face. It was raining cats and dogs, the kind of rain in which raingear doesn't really work. I suppose the same is true of fur. The fur is supposed to hold the water away from the skin, but if the rain is coming down hard enough, it just penetrates through. I think there might actually have been a thunderstorm in progress. Anyway, both of us, I and the deer, were walking along, drenched, and gloomy at being drenched, and our heads down, and not looking where we were going, and all we could hear was the rain crashing down. So we came face to face, at distance of about ten feet. The deer gave a surprised bark, like a dog, and took off in the opposite direction.
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