Developer threatens legal action against allegedly “cloned” Kickstarter game

I was alerted by a reader on Board Game Geek to a situation involving a newly-funded Kickstarter project and a threat of legal action by the creator of an existing game. This threat of legal action may be an extension (though not inspired by) the recent litigation of clone games that I’ve discussed recently.

The games and accusation:

Moriarty’s Machinations is a hidden role card game by Duadikos that exceeded its $7,500 goal on Oct. 14. On Oct. 3, Travis Worthington of Indie Boards & Cards posted a comment on the project page, saying the following:

It is my view that Moriarty’s Machinations and the efforts to promote and publicize this game violates various Intellectual Property, Copyright, Trademark and Trade Dress rights that Indie Boards and Cards holds for our games.

Indie Boards and Cards will vigorously defend our intellectual property rights. I am now in process of initiating formal legal action against this project, the company behind it and the individuals involved. I think that it is only fair to provide this information to the project backers as it presents a significant risk for the project creator to successfully deliver on their commitments.

Are they too similar?

The big drawback here is that we don’t quite know where the line is drawn as far as protection of mechanics under copyright is yet.Phase 1 is sort of similar, but the roles and the revelation of them to other players is more complex.

Phase 2 of the game, however, is very close to what I’ve played in The Resistance. One big legal question is whether or not the merger doctrine applies – is there really only one way to express this idea? If so, there wouldn’t be any copyright protection. In the Bang! case, there seems to be a lot of complex interaction between the powers that the different characters have. This, in turn, is seen as creating enough player interaction that it rises to the level of copyright protection. Even though the words on the cards are changed, the rules are essentially the same for those cards, and thus could be infringing.

The cards in Resistance, on the other hand, do not have specific text. Rather, it’s the rules of the game that dictate how things are played. They may be simple enough to not rise to a protectable level. The big drawback here is that we don’t quite know where the line is drawn as far as protection of mechanics under copyright is yet.

Phase 3 is a bit different, at least from the original Resistance (I haven’t played Avalon).

It is entirely possible that Duadikos’ attorneys were correct in their assessment that there is no infringementReactions in the BGG thread about the game seem to range from “it is a retheme of the same game” to “it’s just an intimidation tactic.”

It is entirely possible that Duadikos’ attorneys were correct in their assessment that there is no infringement, but it’s also a possibility that with a change in judicial interpretation of the law it will be infringing. As far as trademark and trade dress rights go, I’m not so sure there is any problem here. They are not using brand identifiers that could cause confusion and the card designs themselves (the trade dress component) don’t seem to be confusing either. However, I’m not a judge, so who knows what they would say.


So what happens now?

If legal action does indeed move forward, it will be interesting to see what the outcome is. Most likely, however, the case will settle out of court, since a litigation like this will take an enormous amount of time and cost a lot of money. With the $10,000 raised by the project, there just doesn’t seem to be much left over in the budget to fight a long legal battle. We won’t know until it happens, however.

If you are a creator who is concerned that your game may be too close to another creator’s, why not contact an attorney for a review? A little effort up front may be a better idea than investing time and money into a project that is doomed to be marred by legal action.

Update – 10/22:

Board Game Geek user TheNameForgotten commented on my story there, pointing out the bigger similarities between Moriarty’s Machinations and IB&C’s later game, Resistance: Avalon (which I have not played, so couldn’t comment on above). These seem to be making the case even further for some kind of liability, but as usual, we’ll have to wait for a court to decide.

FWIW – the revelation of roles at the start is very similar to the Avalon version (as are the roles). As is the final Phase 3. In Avalon, the bad guys will have an Assassin, who gets to select one player of the good guys (if the good guys win) to assassinate. If they choose Merlin, then the bad guys win.

As for initial roles:
Brutus is the only completely new role – with no similarity to any power in Avalon.
Irene’s flip win condition is also new, but has some similarities to Percival.

Otherwise Avalon has roles with powers that:
Sees opposing team minions (Merlin)
Hides from opposing teams sight (Mordred)
Sees own team minion/s (Percival/team Mordred)
Hides from own teams sight (Oberon)
Confuses sight (Morgana)
Chooses an opposing member to flip a loss to a win (Assassin)

All the roles in Moriarity’s Machinations are combinations and degrees of these powers already found in Avalon (with the exception of Brutus and Irene’s flip condition.)

The main difference is that MM gives these roles and powers to both sides (instead of just one), which will make a significant difference in how the game plays outs. In the Resistance (and Avalon), you typically have one side that holds the majority of the information, and the other side that’s trying to uncover the information. In MM, individuals hold different degrees of information, and this is roughly even between the two sides. It’s much more necessary for both sides to gather information about the other team, while hiding their own allegiances.

photo credit: Kalexanderson via photopin cc

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Zachary Strebeck

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