By Ben Barrett on May 17th, 2014 at 2:00 pm.
It seems like only almost exactly a month since I was musing on the existence of Hex: Shards of Fate and its similarities to Magic: The Gathering. Well, it turns out that a month before that Wizards of the Coast (or, more accurately, their lawyers) were doing a little more than raising an eyebrow. They’ve gone whole hog, taking Cryptozoic and sub-company Hex Entertainment to court for “copyright, patent and trade dress infringement.” To which the wider internet has responded with a mix of “what do those things mean?” and outrage. Essentially, Wizards believe that Hex is too similar to Magic in the way that is looks, functions and plays to be distinct. This comes down to a number of different factors like whether customers will confuse the two brands as well as whether there’s been wholesale nicking of work. Now, I am not a lawyer, nor should I be, however I’ve dug up a few juicy morsels and am more than happy to throw out an opinion or two, which you’ll find below.
The best write-up I’ve seen is this one from Magic site Quiet Speculation. Author Douglas Linn is a long time Magic player and, more importantly, practising lawyer who partly focuses on the business side of things. This puts him head and shoulders above most of the internet to discuss the matter and between that article and discussion in its comments section, anyone should be able to get up to speed. Specifically, it explains clearly what the three grounds on which the suit is happening are – including the very important definition of “trade dress” as non-functional elements of packaging or presentation that identify products uniquely from their competitors. I’d definitely go and give it a read as I’ll be referencing it repeatedly.
What caught my eye most of all was the discussion of a “discovery” phase, in which internal documents of Cryptozoic/Hex must be turned over and analysed for possible infringements. It doesn’t take much looking at the in-game names of phases or the words used by the commentator in the gameplay rundown below to see there’s a lot of overlap. I’d say it’s quite likely that at some point, someone in the company wrote card names or mechanics from Magic on their own design documents as a means of comparison, at the very least. If it’s widespread and common, that will spell ill, likely showing a level of copying beyond what’s deemed acceptable.
What’s also important isn’t just the facts of the case, but the reasons for it occurring. Much like with the recentish King-Sagagate drama, due to the subtleties and webs of complexity involved in copyright law, it’s important to file cases such as this even when you have no belief wrongdoing has occurred. Rights can be lost unless proper measures are taken whenever a breach, or possible breach, however minor, is made. Even if Wizards didn’t believe they were being ripped off, it’s possible that this action would be necessary anyway to protect against future, far worse infractions.
There’s also the rather obvious motivation – Hex is a competitor to Magic that’s already surpassing the appeal of Wizards’ own official digital version of their game, Magic: The Gathering Online. It has the immediate look and feel of Duels of the Planeswalkers without the limitations Wizards build in to prevent it being a true competitor to the paper game or MTGO. In fact it goes over and above that, integrating complexity increasing digital elements like cards with Diablo-esque gem slots and double-backed ones with different faces based on how many times they’ve been turned over. Wizards have been king of the hill for a very, very long time and likely want to keep the number of threats as low as possible. In a world where their own latest update to MTGO is drawing ire from the community, a program that performs a vastly similar function in a superior way could be a call for brown trousers time. Or, in this case, lawyers. It may backfire of course: bringing more attention to Hex, which will be automatically seen as the underdog in a fight.
On the flip side, even last month I was a little surprised by the amount of direct translation from one game to the other. Hearthstone and Solforge are comparable to Magic, but five minutes with either will give you vastly differing experiences. From what I’ve seen, it would be very possible to emulate the exact same game sequence between Hex and Magic. There’s literal copies of creatures, spells and abilities, with only token effort being made in changing names: “haste” to “speed,” for example, is a Thesaurus.com job. That’s before we get on to the very obvious interface similarities between Duels and Hex. Even the changes that have been made – letting players choose characters to represent them in battle and grant global abilities – have analogous elements within Magic: the less competitive Vanguard and Commander game modes feature almost identical sorts of avatar-picking. The inspiration is less obvious but it could and likely will be argued that it all came from the same place.
Between those factors and the added complexity of comparing digital and non-digital products, it’s hardly as cut and dried big-company-bullies-little-company or young-rogues-attempt-rip-off as we’d like to believe. Doug’s conclusion was that two of the claims seem solid, while the trade dress stuff falls short given that most of the visual elements of Magic do have some use. If that’s how it goes down, it’s possible we’ll see very little of Hex: Shards of Fate in its current form in the future, if at all. Even the extent of the losses that could be made are uncertain as it’s likely Cryptozoic will try to separate themselves from the case by arguing subsidiary Hex (no subtitle) LLC are the owners. A subsidiary that seems to have been set up for specifically this sort of legal tangle – rather like they saw it coming.
Again, I’ll ask you rocks, papers and shotguns that have experience of both games – homage or copy? Paying due respect to the daddy of the TCG or gleefully nicking off with all its best stuff? I’d generally always pick wizard shoes, but whos would you rather be in right now?