The Business Side of Video (Space) Games EXCLUSIVELY ON IDLE THUMBS

[Dewar]

Blame Disney

[Twig]

I blame Disney for a lot of things.

[Dewar]

You should, they own everything now anyway, so it must have been their fault at some point in the inherited past.

[Bjorn]

I was actually about to make a remark about how a trademark must be enforced actively to retain its power, but this Polygon story that just hit basically describes it for me:

 

http://www.polygon.com/2014/1/22/5335022/king-were-not-trying-to-stop-banner-saga-from-using-its-name

 

I'm no lawyer, but despite them not having an active trademark on "Saga" it's probably in their best interests to assert themselves in the case of Banner Saga. While they don't have a trademark on that specific word, they have a number of trademark on games with names styled "Something Something Saga" with which The Banner Saga intersects. That said, it doesn't make them look like anything but dicks to the public eye.

 

That's a truism that lawyers and PR people have propagated, but it's not exactly true.  It's a twisted truth that covers their crappy behavior. 

 

I'm no lawyer, but I can't really think of an example where a company has lost their trademark because they didn't harass companies that had a vaguely similar name that happened to use one word.  The biggest historical danger to losing a trademark is to allow it to become a generic term (see Escalator).  That's the thing you really need to combat as a company.  Common words like Saga are already common, so they can't become genericized. Next, companies lose trademarks because they never should have had it to begin with (see the App Store as an example or when MS almost lost their Trademark on Windows after a court started digging into the history of the term during the Lindows lawsuit).  And companies can lose trademarks because they were obtained fraudulently (see the Edge trademark in gaming).  I don't know of a single example where not trolling other companies ultimately resulted in losing a trademark.  That argument was used in the Windows vs Lindows case, and ultimately played a very minor roll in the direction of that case.  

 

This argument about defense also covers up their poor forethought in naming or branding.  If you put some thought and planning into your branding, you don't find yourself having to fight these specious battles over other products.

 

You can read through the actual USPTO (pdf) guidelines and recommendations to see how it's not true.  To me, the section on descriptive marks seems to cover the use of Saga in a game like Candy Crush.  Saga was added later to convey the larger experience over the older version.  Which is what Saga as a word is intended to convey.  It's analogous to the USTPO's example of using Creamy as part of a mark for yogurt.

 

Applicants often choose (frequently at the suggestion of marketing professionals) descriptive mark for their goods and/or services, believing that such marks reduce the need for expensive consumer education and advertising because consumers can immediately identify the product or service being offered directly from the mark. This approach, while perhaps logical marketing advice, often leads to marks that cannot be easily protected, i.e., to extremely weak trademark rights. That is, a descriptive mark may not be registrable or protectable against later users of identical or similar marks; therefore, adoption of a descriptive mark may end up costing more money in the long term, either due to higher costs to try to police and enforce such a mark, or because it may be legally necessary to stop using the descriptive mark and select a new mark.

Examples of descriptive marks:

CREAMY for “yogurt”

WORLD’S BEST BAGELS for “bagels”

 

And that's not even crossing into the territory about the historical use of a word in an industry, strong vs weak trademarks, etc. There are multiple games previously that used Candy and Saga in the title all predating Candy Crush.  It is, by definition, a weak trademark that the USTPO advises against attempting to register.  Now the office never should have granted Candy in the first place (and it can still be openly opposed and rejected during the review period), and they have never ruled on Saga.  King is just trying to make sure that no one else gets a trademark that has Saga in it while they are fighting to lock it up for themselves.  That's not defending a mark, it's being greedy and controlling.

[JonCole]

I certainly consider myself corrected.

[Bjorn]

Sorry if that came off as overly aggressive, I've just been seeing that argument brought up again and again in the last couple of days without a lot of rebuttal against the logic of it.  The somewhat funny thing is that there are a bunch of examples where the attempt to enforce a trademark is ultimately what kills it (like Edge or when Windows was almost deemed generic).  Being overly aggressive in defending a mark is an invitation to scrutiny on the value of your mark.  Like in this case, the USTPO is almost certainly going to get more petitions for opposition to the Candy mark than they would have otherwise, and may well end up taking a closer look at the Saga request.  King likely would have been better off if they would have kept their mouth shut until the opposition period for Candy had expired. 

 

Oddly enough, this other Polygon piece offers a much more nuanced view of what trademark really means, particularly pointing out that the practical ability to threaten other companies is much more valuable (and desirable) than actual litigation.  

 

Video games represent a specific oddity in trademark as well.  You can't trademark the title of a movie, novel, TV show or play.  But games still fall under a good or service definition, like other computer programs, rather than a creative work.  It's an unfortunate leftover from when games were seen as toys rather than creative, artistic works. 

[Zeusthecat]

Wow, thanks for the excellent breakdown Bjorn. Would you kindly drop that same knowledge on all of the other video game forums on the internet?

[JonCole]

Oh no, not overly aggressive at all. Just quite assertive. 

[Nachimir]

Thanks Bjorn, that's a really interesting nugget about titles for other media.

 

Remember when Bethesda tried to stop Mojang from calling their game "Scrolls" because it was so much like "Elder Scrolls?" Scroll is a hilariously common word too.

 

Bethesda are cunts*. They once nicked all of the monitors from my stand during setup for a show.

 

*Probably not all of them.

[Frenetic Pony]

Thanks Bjorn, that's a really interesting nugget about titles for other media.

 

 

Bethesda are cunts*. They once nicked all of the monitors from my stand during setup for a show.

 

*Probably not all of them.

 

Well Fuck Brekon did work their for a while. But he's gone now.

[Nachimir]

Probably shouldn't have posted that but nm 

 

I bet it was his fault.

[Bjorn]

I've historically liked John Walker's editorials over at RPS.  I don't always agree with him, but I like that he's banged the drum on feminism and certain business practices in the industry.  But his most recent one is just awful.  Here he builds an argument for why open development is terrible.  Because one game, that happened to be an MMO, was terrible.  That's it.  One example in a genre that almost no one gets right, from a dev that had never made an MMO before.  And presents an argument that assumes the industry was apparently so fabulous at innovation in the pre-open development universe.  There's a level of disconnect from reality in this piece that is staggering. 

 

Given the choice between a community influencing the development of a game, and a traditional publisher influencing the development of a game, I know which sounds better to me.

[Merus]

Yeah, between this and Broken Age I've muted his articles on my RSS feed. He can come out of the box when he stops being a twat.

[SiN]

A little early to tell (crowdsourced games are really just becoming a "thing"), but I agree with John for the most part.

 

I oh-so-desperately wanted to back Wasteland 2, but after watching the pitch a few times, it was clear there wasn't much interest in moving the genre forward, just rehashing "the good ol' days" of the late-90s. Crowdfunding encourages this because people generally only back what they know, UNLESS you can show them something new and exciting.

 

But the thing about new and exciting games is that they're really crap for a really long time. Things take a while to develop, for the design to come together, and there's a heavy amount of experimentation. The wisdom of the crowd *really* doesn't work, and can be actively harmful in the early days. I've shown many an early prototype to friends, and there's normally skepticism toward the more out there/innovative ideas. Eventually, these ideas work out, but there's a whole lot of trail & error to get to an "obvious" solution.

 

I couldn't imagine doing the same thing with thousands of skeptical strangers watching me work. There'd be so much pressure to show something that *works*, that I'd probably fall back to better understood mechanics and tech. Oh hey, wait-a-minute, that's how annualized Call Of Dutys happened!

 

 

Playtesting and player feedback are insanely important though, but they don't really fall under the same categorization.

[SiN]

Also, examples of open development not working out. Again, it's still early days so these are a bit of a stretch, but they're worth noting from a trend perspective.

 

 

Mass Effect 3 might be a good example. (I'm not really a fan of the series, so I'm not sure) Bioware made a pretty cool/bold ending, fans didn't like it, Bioware are "forced" to release DLC which cheapens the ending. It's worth noting here* that EA were the ones who were cool with Bioware doing the bold/risky ending, and the fans were the ones who wanted them to "play it safe".

 

* if my understanding of the situation is correct

 

 

Another example, from Broken Age. Remember in the early days, when Double Fine posted the first test scene was the hipster lumberjack? The boards quickly lit up with backers not really liking the style/character at all. Double Fine were like, "don't worry, it's just a test scene!" But they ended up using it in the game and lumberjack dude turned out great, and so did the forest area.

[Twig]

Bioware made a pretty cool/bold ending

Let's not get crazy here.

[Merus]

I think it's disingenuous to claim that a fear of new ideas is only something that's a problem for open developers. Most of the early Kickstarter games traded very heavily on old names trying to make old games because the appeal there was easy to sell, but well before that, people were using Kickstarter to make things that were very new and not what the usual talent was 'known' for. My favourite example is Numanera, a roleplaying game by the best-known developer of D&D 3rd edition, and it was pitched as a weird science fantasy storytelling game with no miniatures and very light combat. You're starting to see people take Kickstarter as a funding tool more seriously and post important things like prototypes, budgets and schedules so that you have the ability to see what is cool about a more unusual project, and that it's achievable.

 

The Broken Age lumberjack example is particularly poor because he was brought back because backers went 'aww, I liked the lumberjack'. Because backers are not an amorphous blob, and people will complain when you do something and then a different but equally loud group will complain when you reverse it. If you are listening to backers, you need to filter out feedback you get, just like every other creative ever has had to do.

 

Which is why I think this is all a little bit bullshit: there is no creator ever paid for their work who hasn't had to sift through feedback and decide what's worth listening to and what comes from people who don't get it. If you do not do that, you will create something crappy and compromised, and you deserve everything you get.

 

I think a better example is Guild Wars 2, which launched attempting to do something very different with MMORPGs and push the envelope a little bit (like Walker claims The Old Republic did). I think it succeeded, reviewers got as far as the heart events and decided they were basically the same thing as what had been done before. They've asked their official forums - the forums! - to participate in a collaborative development thing. It's gone from everyone bitching about their pet problems to a focused, useful discussion, because GW2 has a very clear idea of its design principles and they took the time to teach their players how to give realistic and useful feedback, so that now there's a bunch of players that jump in and discipline others who walk in and give obnoxious and blinkered feedback.

[Bjorn]

I'm with Merus' take on this one. 

 

On Mass Effect, at this point, you could probably write a book on the good and bad of how the ME series was handled.  If anything, I would say that BW was way to insular in their development of the final chapter.  A wider range of perspectives would have helped it.  The interesting thing there is that the team was fairly open and communicative with the community on the co-op mode, and it just kept getting better, with a few missteps.  Future BW games are likely going to have better combat, and that's going to be thanks in part to the passionate community that developed around ME3's multiplayer, providing constant feedback on every conceivable element of it. 

[SiN]

Both examples you guys brought up (Guild Wars, Mass Effect) have one thing in common: feedback occurred late in the /creative/ process. (I'm guessing during beta or post-release.)

 

As you said Merus, "GW2 has a very clear idea of its design principles" and regarding ME3, it's the third game in a series. These fall under "playtesting and player feedback" in my books. And yeah, I'm mostly* cool with that.  (*I'd elaborate, but that's really a whole other discussion)

 

 

My problem lies more in the earlier stages of development, when the core ideas for the game are materializing. Tim Schafer talked about this in one of the earlier documentary episodes, but here's a quote from Jony Ive:

 

"While ideas ultimately can be so powerful, they begin as fragile, barely formed thoughts, so easily missed, so easily compromised, so easily just squished."

 

The difficulties in crowd development (as opposed to the "normal" creative process) are in control & scale. As the quote above suggests, you need to carefully control how your ideas take shape. Personally, I start playtesting with a few close friends, take their feedback into consideration, and then widen my circle of testers. I get fresh, richer feedback over time. Crowd developement is more of a firehose, it's either on or off. A *lot* of people will play your builds all at once (even if your tiers are carefully managed).

 

Scale gets into that amorpheous blob thing. I'm not really worried about Double Fine and the like. Big companies with experienced developers, and dedicated community managers will do alright. But what about smaller devs? Two-person teams with less experience? At some point the ratio of developers-to-backers doesn't scale, and it does essentially become a amorpheous blob. Hyper Light Drifter is a great example. 3 devs : 25,000 backers.

 

(btw, I didn't know about the lumberjack thing, thanks for correcting me!)

 

 

Here's a thought: gamers generally think that publishers meddling with the creative process is, more often than not, a bad thing, right? Fundamentally, the idea that an entity not involved in the creative process having the power to manipulate create and design aspects of a game is wrong.

 

So why isn't crowd development perceived in a similarly skeptical manner? What makes the crowd so much better? Aren't we also driven by our biases and risk-aversion?

 

[Merus]

Here's a thought: gamers generally think that publishers meddling with the creative process is, more often than not, a bad thing, right? Fundamentally, the idea that an entity not involved in the creative process having the power to manipulate create and design aspects of a game is wrong.

 

So why isn't crowd development perceived in a similarly skeptical manner? What makes the crowd so much better? Aren't we also driven by our biases and risk-aversion?

 

Part of it is selfishness, obviously, but I'd still quibble with the idea that executive meddling is always a bad thing. Executives in charge of cartoons in the early 90s basically forced creators to find places for female characters, and while the process ruined some shows (Pinky and the Brain being an excellent example) it also forced creators to start thinking about their female audience instead of defaulting every character to male. During the same period, Jeffrey Katzenberg got a bit of a reputation at Disney for coming in and meddling with the animator's work - he famously nearly had Aladdin shut down, and pushed Lion King down a completely different path. Thing was? He was absolutely right. Aladdin v1 had a mother character whose only job was to make Aladdin feel bad, while Lion King v1 was a confused mess until Katzenberg remarked how much he liked the Hamlet elements.

 

The problem with executive meddling is when the creatives and the executives aren't seeing eye-to-eye and the executives force their way by threatening to shut the production down. (And even then sometimes it's well intentioned - Fox executives correctly deduced that Firefly's pilot wasn't going to endear the series to a wide audience and asked Whedon to write a second pilot that'd be more sticky, and Whedon dropped the ball by leaving all his character development in the first pilot.) That's basically impossible with crowdfunding. Yes, the fans "are involved in the creative process" but legally the only thing they're entitled to is the Kickstarter rewards. The creatives set what kind of feedback they want - Revolution Software didn't really get much feedback for Broken Sword 5 at all, while Our Darker Purpose got their backers involved from the very beginning.

 

Which ties back into my earlier point: if you have a strong vision for what your work is about, then it's hard for feedback to blow you offcourse. Hyper Light Drifter is a great example because it has a very clear identity and that identity was part of the pitch. Ignoring feedback because it's against the vision will endear that team to their backers, because what they want most of all is a game that embodies the identity they paid for.

[Bjorn]

The saga continues...

 

I mean, we're all shocked, right?  Who would have imagined that King may have a history of stealing other people's games and infringing on other companies' trademarks?

[Henroid]

I asked a friend of mine to weigh in on this, and he pointed out that if King's trademark claim(s) were challenged in court, they would only have to prove that product or brand confusion can happen. So it's not as simple as "that's a common word, how ridiculous." Our legal system is totally fucked.

[Merus]

Like lawyers constantly say, you're able to trademark shared concepts like colours, because the law is attempting to work out exactly how you can give how a company presents itself to customers some legal weight without being completely ridiculous. It's easy to imagine that if someone made a dark coloured drink that came in a distinctive bottle shape with a red label with cursive, people would think that it was 'related' to Coca-Cola because it'd be trying to stay in keeping with that branding. When you have branding, you need something like trademark law to ensure that things don't immediately collapse - and people really like brands.

 

Part of the problem here is that King is sending cease and desist letters when they don't own the trademark, and they're not going to get the trademark because it's too broad. They probably will get 'Saga' because that is actually part of their public appearance, but it really should be 'Saga when used as a noun adjunct postfix' because that's actually how they use it. So, say, Bejewelled Saga would be clearly biting on their use of Saga, but Saga Frontier and The Banner Saga would not and are not.

[Henroid]

Yeah they're being very Tim Langdell about things.

[Justin Leego]

Do they dare have words with Warners over Lego Star Wars: The Complete Saga? I mean, that's on the App Store and it very recently went quasi-free to play.

 

I suppose it depends on what sort of instructions the legal team are operating under...