Oi, That’s Mine! Wizards of the Coast Sues Cryptozoic

By Ben Barrett on May 17th, 2014 at 2:00 pm.

All hail me, the king of photoshop. Bad photoshop. That doesn't use Photoshop.

Uh-oh.

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?

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132 Comments »

Top comments

  1. Shuck says:

    “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”

    No, that’s trademark law. Trademarks are the things you can lose if you don’t defend them. The point of trademarks (i.e., the mark under which you trade) is that they distinguish your product from every other product out there. It’s a name or look that’s completely unique to your product or company, and you’re allowed to legally maintain that distinction. If another product exists that erodes that distinction, even if it’s created after your product is already on the market, then your trademark is not unique and you don’t have a trademark. So you have to defend it or lose it. Even just allowing a trademarked name to be used as a generic term can cause the trademark to be invalid (e.g. Escalator, Hoover).
    Copyright, on the other hand, is the right to control the copying of your work – it can be applied however you want – that’s the point of it. That means you can allow certain types or instances of copying, no problems (e.g. George Lucas being fine with Star Wars fan-films – but they had to be clear, with any referenced trademarks, that those trademarks were the property of Lucas). This allows things like creative commons to exist while still maintaining a copyright.

  1. Guy Montag says:

    Wow, that video, I hadn’t figured on Hex being just a reskinned MTG. I feel like I can almost hear the wince each times he uses a term that they haven’t just renamed, like when he says Mana, and he’s built the most bog standard deck I can imagine in MTG, an overrun deck.

    This is the first I’ve looked at the game, it doesn’t look like there’s a meta layer of gameplay to make some difference here or anything. The website mentions a SP campaign, but even that’s been done before in the old console MTG games.

    • Philomelle says:

      MTG: Duels of the Planewalkers has a single-player campaign as well. It’s admittedly mostly a linear fair designed give players an option of obtaining foils and bonus decks through means other than buying DLC. Still, it exists and I’m glad to have poked around in it before touching PvP, as the computer has really varied deck builds and subtly teaches you to counter them as a result.

    • malkav11 says:

      Hex is closer to Magic’s roots than many TCGs, certainly, but it is a distinct game with very meaningful differences in design and more importantly card set. And although they are currently beta-testing the “PvP” elements that are most similar to MTGO or other current digital TCG products, the “PvE” part with its dungeons and raids has, from what they’ve revealed, far more going on than either Duels of the Planeswalkers (which has a singleplayer “campaign” in that you play a predetermined Magic deck against the other predetermined Magic decks and that’s precisely it) or previous TCG singleplayer content (the closest seems like it would be the Microprose MTG game’s “Shandalar” mode, but even that was really pretty much just playing Magic against contextualized computer opponents.)

      I can’t speak to the legal aspects of Wizards’ case – they may have legal grounds, or they may just be trolling, but I do think it’s clearly the top dog using their superior resources to bully a much smaller competitor with a superior product instead of competing in the marketplace and I will be seriously pissed at them if they manage to tank Hex with this bullshit. Not least because I backed Hex and have money on the line.

      Oh, and that video is pre-alpha from the Kickstarter – there has been a lot changed since then, and there are no overlapping game terms in the official terminology, but I don’t know if you’ve noticed – people who got started on TCGs with Magic (i.e. basically everyone that plays TCGs) tend to default to using Magic terms for equivalent stuff in other TCGs even though that’s not what they’re actually called.

      • capndan says:

        Not sure how this affects legal standings, but you could even argue that MTG terminology has just become standard for TCG/LCGs. Everyone in Netrunner uses terms like Tutoring which came from MTG but is just understood to mean digging through a deck for a specific card.

  2. Chalky says:

    I’m not sure how valid these legal arguments are, but I really struggle to sympathies with WotC when it comes to this sort of thing.

    They intentionally release limited versions of their game into the digital market place in order to avoid detracting from their physical product, it’s hard to complain when the market finally gets fed up with them and consumer demand spawns competitors left right and centre.

    It would be different if they had been trying to release high quality digital versions of their game and someone was ripping them off, but their intentional failure to do this should forfeit their right to stop others from filling the void.

    The law doesn’t work like that, I know, but this seems fundamentally anti-consumer.

    • Baines says:

      The law is quite anti-consumer.

      After all, the law allowed mechanics like “tapping” and “untapping” to be patented. Wizards of the Coast could probably have filed suits against other companies for years, if they’d really wanted to.

    • The Random One says:

      It’s been hundreds of years since I’ve played, but how is MTGO drastically limited compared to the paper game?

      • malkav11 says:

        I think you’re misunderstanding. It’s not that MTGO is limited compared to the physical game, it’s that MTGO is limited -by- the physical game. It is a slavish recreation of the physical game in digital form, rather than exploiting the drastically wider possibility space of digital TCG design. Similarly, Duels of the Planeswalkers is both a slavish recreation of the physical card game -and- hugely limited in terms of things like deck design and available card pool (presumably because it’s a one off purchase rather than buying digital boosters like in MTGO). Both of these things appear to be so that Wizards’ digital products do not compete with or damage the sales of their physical product.

        This is a huge way in which Hex differs from Magic and MTGO. It is a purely digital game that is taking full advantage of that fact.

        • The Random One says:

          While Hex does use some random elements that can only work on computers (or at least would be boring to apply to a physical game). OK, I get it now.

          • Baines says:

            The crippling part isn’t that the PC game doesn’t do things that the physical card game doesn’t, it is that the PC game doesn’t do things that the physical game does. The restriction on deck building is a major issue.

          • malkav11 says:

            Duels has essentially no deckbuilding component, but as far as I was aware, MTGO lets you build decks pretty much exactly the same as in real life. Right down to having to buy all the cards in random packs of fifteen or at outrageously inflated singles pricing.

          • The Random One says:

            Yes, that was the source of my confusion.

        • YeGoblynQueenne says:

          “Duels of the Planeswalkers is both a slavish recreation of the physical card game -and- hugely limited in terms of things like deck design and available card pool (presumably because it’s a one off purchase rather than buying digital boosters like in MTGO).”

          Duels’ card pool is limited because M:tG cards are inherently difficult to implement, depending on the choices made when creating an M:tG rules engine. And Duels made the worst possible choice, which was to create their own custom syntax to translate M:tG ability text into. This was done in order to make M:tG ability text “easier for the computer to read” (parse). It’s a bad choice because it means that every time they want to add a new card to the game (ie, make it available to their rules engine) they have to painstakingly translate its Oracle text into this intermediary format that their engine can understand. By hand. And then test it. Again. And again. Until they get it right. Basically, they have to program each and every card separately. That’s just about the same amount of work that Wizards’ itself puts into designing each card if not more.

          You think that’s bad? It gets worse. In the words of Patrick Buckland, CEO of Stainless Games (the UK company behind Duels):

          “the cards themselves actually have their own register arrays so that each card is able to act like its own little self-contained microprocessor if needs be. Some cards were horrendously complicated and constitute entire programs in their own right”.

          This from: http://www.wizards.com/magic/magazine/article.aspx?x=mtg/daily/feature/43c – where you can also see an example of their proprietary scripting format, Lua functions embedded in XML calling to C++ rule engine functions.

          Mr Buckland lists his company’s staff as 40 people, (they ‘ve probably grown since). I would imagine that most of his staff are not programmers. This is important because the work of creating new cards as explained above must be handled by a programmer. A programmer that can’t sit around programming cards all day long- they have an engine to develop and maintain; actually, two engines: a rule engine and a graphics engine. You can see that extending their card pool would be very expensive for a smallish company like theirs. So that’s why Duels’ card pool is small.

          That’s not to bash Stainless Games who have made a fine game indeed and the first commercial M:tG version with a half-way decent AI (which is bloody hard to do for M:tG, let me tell you). It’s all just to point out that if Wizards wanted a great desktop version to match their online and physical products, they could get it. They just never wanted to.

          Edit: removed digression.

          • malkav11 says:

            I’d note that even if it’s technically challenging for them to implement cards in Duels of the Planeswalkers, you would think that it would be much easier to forward port existing cards and decks into the new iteration in addition to implementing the new set, so I would think not doing so represents a business decision. Similarly, not letting people do full deck customization seems like a move geared at preventing Duels of the Planeswalkers (a one time $15 purchase per release, plus maybe $5 for expansion DLC, with a substantial nonrandom fixed pool of cards) from cannibalizing any of Wizards’ main Magic or MTGO business (at $4 per 15 random cards).

          • YeGoblynQueenne says:

            I agree it’s a business decision. Also remember that while MtGO is developed in-house by Wizards own development team, Duels is outsourced to a small gaming company in the UK. So if Duels started outselling MtGO or the physical game they wouldn’t profit as much from it as they do from the other two.

      • nearly says:

        There are better answers already, but I’d point out that they intentionally keep the digital version a release behind to encourage people to take part in the physical version. Not a huge issue but at least shows where their priorities are in monetizing their fan base: it’s making more money off of people buying cards again rather than giving them a fleshed out alternative

        • lttibbles says:

          DoTP is used as an intro/marketing tool for people who don’t play magic to get into that’s why every version is based on the new basic set (M13, M14) so that they can play the game get interested and go buy a starter set at the store or on MTGO.

    • Premium User Badge Big Murray says:

      I think it’s taking it a bit far to say that if you don’t give the customer what they want, someone else has the right to sell your product for you and take the profits.

      • Premium User Badge SuddenSight says:

        Cynical of you to call it “your” product. If someone else made a better product, what about that product is “yours” exactly?

        That said, I can’t be bothered to care overmuch about this one. I haven’t played Hex and I do not intend to play Hex and I will shed no tears if it is killed by this lawsuit.

        I do dislike this case in general terms, however. I am irked when companies use litigation as a way to avoid competition. It was pointed out in the linked article that cases like these can easily take over 2 million dollars to prosecute, which is more than the net worth of Hex. So they might just fold before the case even goes to trial, and that bothers me, because I don’t like it when big companies can just threaten little companies out of existence.

        So, even if WotC has a legitimate complaint, and even if they win, I still dislike them for it. For shame.

        • nearly says:

          I’d be surprised if their internal documents presented anything as a shameless ripoff. They had to have known that close similarities would bring the juggernaut down upon them and I can’t imagine there’s anything especially incriminating in there. Haven’t played the game myself, but it does sound like they do a fair amount to shake things up and make the game play out differently despite some largely unavoidable shared mechanics

  3. aeromorte says:

    Im going to stand behind the WIzards. Why exactly? Because i love card games. And because no matter how good a card game is sooner or later the time will come when the mechanics of one game will tire you out. Hex sounds interesting till you try it for yourself. Its basically Magic with different names and art. I want a card game with completely new mechanics. Thats why i want Wizards to win this. So the next card game wont be the same reheated s… over and over and over again. So end statement: more card games but each one different :P

    • Kitsunin says:

      But what I want is a complete digital card that is like Magic! DotP is far from complete and Online is just thoroughly mediocre in presentation, and Hex was the only option that seemed to be bringing something that was actually a true digital TCG presented well. Without it WotC has to bring that, and while they might create something closer to true Magic playable online, but they will not take advantage of the PC platform to change the game in any ways (There will not be Hex tier PvE, nor cards which wouldn’t work in a physical environment, I guarantee it.) no matter how you look at it, we gamers lose overall; though WotC might very well be in the right legally.

      If you want something different there are options! Duel of Champions! Hearthstone!! Infinity Wars!!!!

      • lttibbles says:

        Gamers really don’t lose out, if they want to play really honest to goodness magic then there is MTGO, DoTP is just a marketing tool to try and get new people into magic it’s not there as a replacement for the physical or the already digital product (MTGO).

        • Kitsunin says:

          I already addressed MTGO, I just called it “Online”

          I don’t think it is suitably designed for digital play. It’s ugly and expensive and doesn’t take advantage of the digital format and hello? Did you even read my comment other than the last sentence of the first paragraph?

  4. Duke of Chutney says:

    interesting article. I don’t play either, but some of the folks on FortressAT i chat with are more engaged with this part of the hobby. Im told that it is pretty close to a straight clone with different art. As shown in the linked article some of the cards are essentially the same.

    However, from reading the article, that guy makes it look like Wizards are going to have a hard time getting this to go their way.

  5. Horg says:

    On the subject of ”trade dress”, should that even be applicable to a purely digital product? It’s not like you can accidentally pick the wrong box off the shelf, realising only when you get home that you bought ”Cards and Wizards: the Magicking” instead of the vastly superior ”Card Wizards: Magic Fighting”. I just can’t see a scenario where you might buy the wrong game due to confusion over appearance.

    • darktatka says:

      DayZ vs WarZ confusion comes to mind.

      • Premium User Badge jezcentral says:

        But don’t forget, WarZ’s name change was not forced by DayZ, but by the World War Z lawyers.

      • Horg says:

        OK, the name might be the only exception. If you are browsing in the steam store and you see a title that is in the same genre as the title you are looking for, but 1 letter is missing (e.g. Plant vs Zombies) you could easily buy the wrong title. However, if two games are very similar, but the names are sufficiently different that the buyer cannot reasonably confuse the two, should ”trade dress” still apply to the game assets? If the intention of that legal protection is to prevent accidental loss of revenue, then I can’t see how it would apply to anything beyond that which influences the purchase.

  6. ribby says:

    Well from what you told me last time you talked about Hex it is literally just a copy of magic the gathering so I’d say they’re perfectly in the right to make complaints

  7. Vegard Pompey says:

    Hex strikes me as an incredibly cynical and unimaginative attempt at combining something popular with MMO elements in order to rake in all the money. The developers can get sued into oblivion for all I care.

    • Hmm-Hmm. says:

      What I’m wondering is why they would go so far as to blatantly copy not just the rules (which is just lazy if they don’t have their own twist and if they do it’s understandable).. but moreso the appearance. If you compare DotP to SolForge or Hearthstone or whatever, you’ll see differences in presentation. Minor ones, perhaps, but enough to be immediately distinct. Hex doesn’t have this, hence I’m not having much faith in the Hex devs that they were NOT trying to copy Magic.

  8. Kestrel says:

    The other problem competitors face is, MTG has been around forever and has explored vast amounts of creative space with their game. It’s almost impossible to make a TCG without replicating some of MTG’s work. That’s not even including Wizards’ other TCG IPs.

    • neonordnance says:

      And yet, both Solforge and Hearthstone are a thing. Sure, you can copy bits. That’s OK. Hearthstone copies power and toughness, for instance. But Hex doesn’t just copy bits.

    • Archonsod says:

      It’s pretty easy to do something which doesn’t utilise any of the MTG mechanics precisely because it’s an incredibly narrow space in the first place; that’s why there’s hundreds of TCG’s, CCG’s and LCG’s which are not M:TG. Remove the restrictions of needing a physical product and I suspect the potential design space increases exponentially. Even assuming you’ve got an incredibly limited capacity for creativity there’s still plenty of mechanics you can copy such as drafting or asymmetrical play. Even games such as Hearthstone which clearly cited MTG as an inspiration managed to distinguish itself mechanically in some way.

  9. Wulfram says:

    I think consumers benefit from people being able to “clone” games pretty closely.

    As far as I’ve read this mostly exists because M:TG have left a hole in the market. It seems like a good thing if people are able to fill it.

    • neonordnance says:

      Not even close on both counts. If you think knock-offs help the consumer, spend some time on the Google Play Store. Its clogged up with ripoff products and its very hard to find legitimate apps in the sea of garbage. Most of the ripoffs don’t even work. And as for there being a gap in the market, both Solforge and Hearthstone have already done a far better and more original job of filling it.

      • Wulfram says:

        But they’re more original, which means they’re not filling the desire for people who don’t want originality.

        And Google Play is an argument for quality control and curated stores, not limiting clones. Though perhaps there should be a mechanism for clones to get inferior originals banned…

        • The Random One says:

          Only “inferior” clones? How do you define that? If I create a precise clone of your game that has only half the play modes but has a single different mechanic that vastly improves gameplay, is my clone inferior?

          • P.Funk says:

            But HEX isn’t a knockoff, its a game that may be similar but functions very very differently as a product.

            You might as well be saying someone is stealing your idea for having a baseball stadium, playing a SIMILAR style of game in that stadium but they’re charging far less for the hotdogs and have comfier chairs with better eye lines.

            Oh noes, they’re stealin’ mah stadium idea!

          • Archonsod says:

            It runs on a computer. That’s the only difference. To the point there’s blog posts comparing Magic and Hex cards on the grounds of mana cost and ability and not seeing a difference ……

          • malkav11 says:

            Made in the absence of context or familiarity with how Hex actually plays. And highlighting a few cards with very common TCG effects over the many Hex cards that wouldn’t be possible in Magic at all.

          • Archonsod says:

            It only needs to copy one card to run afoul of copyright …

          • The Random One says:

            Just to clarify, I wasn’t talking about HEX, which I haven’t played – I was just going after the general idea of ‘ban inferior clones’.

          • malkav11 says:

            There’s a big difference between “Hex may run afoul of copyright” which is certainly possible and to which I could not speak, not being an expert on copyright law, and “there’s no difference except Hex runs on a computer”, which is bullshit and which I have first hand experience to dispute.

    • Shuck says:

      The problem with clones is that you have an original developer who spends the resources to design and balance a game – that’s work that’s been done that cloners can simply steal. Which means the cloned game is made more quickly and more cheaply, and can easily overwhelm and drive out of the market the very game that came up with the original mechanics. (This happens all the time in the mobile/web space.) So there’s a reduced incentive to actually do the work to come up with original games, and you have a bunch of cloned game that don’t add anything, creatively (otherwise they wouldn’t be clones). That doesn’t benefit anyone except sleazy developers. The game market becomes saturated with “game developers” who have no creativity but simply the ability to quickly repackage existing content, and the developers who actually do spend the time and money to make compelling games simply see someone larger or faster than they are rake in the money off of their work.

      • gwathdring says:

        I’m not saying I agree with the OP in terms of what should or shouldn’t be considered acceptable, but I definitely agree with the OP that allowing this kind of copying benefits the consumer.

        The consumer has no specific interest in being “fair” to the creator. It’s obviously socially important to be fair so as to encourage creators to create … but ignoring that for a moment: as someone who wants, say, good games to play … it is in my interest to have a wide selection at a low price. If a developer short-cuts by copying assets and basically just making the same game at a similar level of quality more cheaply and in my preferred sci-fi genre instead of high fantasy? That’s good for me as a consumer.

        Of course, I would further argue that things that are superficially good for the consumer can cause problems in the bigger picture. But that’s an argument I feel is fairly straightforwardly made so I’ll leave that one for now.

        • Shuck says:

          I’d say it’s problematic for consumers, too. The big picture is that it encourages clones rather than original games in the long-term. Even immediately, however, you see clones flood the marketplace, and they’re likely poorer quality than the original game, as the creators don’t fundamentally understand what made the mechanics so compelling. As the number of knock-offs increase, the proportion of cheap, shoddy games also increases, as that’s the only way for even the cloners to make money. Consumers have a hard time finding the original games and generally finding quality games in all the dreck.
          Now, games that play with the original mechanics and do something new with them, even if it’s only slightly new? That’s another matter.

          • Entitled says:

            All IP laws have demonstrated in various examples, that the opposite of this is true.

            If you add wide protection to a general idea, you give an extra incentive for people to keep exploiting that single idea as long as they can.

            Just look at the whole entertainment industry. Right until the 20th century, we had most works being originals. Then right as copyrights started to apply to whole “franchises” and “universes”, publishers became invested in sequelizing and rebooting and remaking and adapting everythin, because suddenly they could undercut their opponents thanks to their hoarded franchise monopolies.

            The same happened with patents. Sony, Apple, Google, Microsoft, etc, are all spending piles of money suing each other instead of producing stuff, because wide patent laws mean that gathering patents is a more profitable business than making them.

            “Consumers have a hard time finding the original games and generally finding quality games in all the dreck.”

            The skills of the industry’s average creator, can’t be influenced by franchise rights. There are a fixed amount of people producing games, and whether they are allowed to freely make explicit derivatives, they have a finite amount of production values. Franchise control can only rearrange them, but if they are bad, they are still there somewhere in the industry, and if they are good then their derivative games would have had the opportunity to be good as well.

          • gwathdring says:

            Until the 20th century most works were originals.

            PAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAH. HOOHOHOOHOOHOOOHOO heeheeheehee BWAHAHAHAHAHAHAHAHAHAHAHA.

            You’re not serious.

            Edit: I’m sorry, going back over this thread this seems kinda mean. I’m really, really sorry. My point stands, but this was a poor way to make it. If you read this, I’m sorry.

          • gwathdring says:

            @Shuck:

            The problem is that IP law does not prevent shoddy knock offs. At all. It prevents blatant copying. Shoddy knock-offs quite frequently get away with it because they’re not close *enough* or they copy the most generic (and thus least important and interesting) aspects of the original.

            IP law does more to prevent a genuinely novel and interesting game involving Spiderman than it does to prevent a boring copy-cat manshoot.

            So while I can’t get over that line about how things were original before the 20th century, the above post makes an important point: if you think IP law protects us from cheap trash? Just *look around.*

            Bejewled, mario, farm-ville and WoW clones abound. MTG clones abound. A lot of them couldn’t really be sued for infringement, some of them maybe could be if it was worth the trouble. But they abound. Perhaps they would abound more otherwise, but that’s sort of besides the point, isn’t it? My point is that protecting creative and commercial monopoly does not protect consumers because it has *nothing to do* with encouraging originality or (way more importantly, originality is a semi-farcical concept to begin with) quality. Nothing.

            Again, just *look around.*

          • Entitled says:

            @gwathdring: I haven’t said that “things were original” before the 20th century, (as in more inspired), only that “most works were originals”, (as in not franchise followups (as far as that can measured in a world where legal franchises are not controlled in the first place)).

            I largely agree with you how the copyright system emphasizes protecting shallow forms of originality, while ultimately all things are derivative anyways.

            But it is also pretty straightforward, that if nothing else, even these shallow forms’ copying are just incentivized by copyrights. 200 years ago, you could write a successful book, and the only reason to write a sequel was that you expected the sequel to sell too on it’s own, not because you had a monopoly over the characters on your hand. If you don’t you might as well try some other settings and characters. (not particularly “original” ones, but at least “originals” as in not sequels and reboots)

            Now, Disney buys Star Wars for $2 billion, even though there could be an infinite number of other movies to make, specifically because “owning the Star Wars franchise” gives them an extra edge over competitors.

          • gwathdring says:

            That’s still kinda ridiculous though. There have been stock characters and sequels and reboots for pretty much as long as there have been creative industries. This stuff isn’t new. There are plenty of unauthorized, long-forgotten fanfiction-caliber “sequels” to famous operas and novels.

            This really isn’t new.

          • P.Funk says:

            @gwathdring

            Whats new is the focus on the reboots and derivative works. Everything is a reboot or a sequel these days. It wasn’t so before. There were many but not to the extent its being done now.

            If you won’t even admit that as being true then there’s not much more to say.

          • gwathdring says:

            You’ve got rose-tinted glasses on. Many of the most popular and loved films of all time are reboots, remakes, and adaptations. This has been true since the beginning of film.

            What has changed is the Franchise. That’s a relatively new thing because it requires a relatively young sort of corporate and/or legal structure to exist. Also the multimedia reliance of the franchise necessitated a level of creative and productive collaboration across mediums that simply wasn’t as common until recently. Books will release with cover photos that match the most recent film, soundtracks will be released, artist will contribute special recordings of songs for a film rather than merely license tracks, toys will be made, collectibles will be made for adults, boxed collectors sets will be sold, video games, board games, and decks of cards will be made. T-shirts. Posters. Coffee mugs. Candy wrappers. The franchise? That’s new. That takes a scale and speed of organization that comes with massive corporations, telephone/Internet communications, and rapid, reliable international shipping.

            But right along side that, we have the independent film scene. The ubiquity of low-budget and art-house films and their easy availability to consumers is phenomenal nowadays. Original works stand a much greater chance of finding a paying audience now thanks to the huge number of film festivals, crowd funding schemes and digital distribution methods available to modern film makers. We can do this with other mediums, too, of course. Books? Same story, really. The availability of low-budget and independent comics, books, music albums and games is staggering compared to the past of these mediums. Amateur photography? You can’t breathe on the Internet but for knocking over an album of amateur photographs someone is willing to sell you on this or that website or simply share with you at no cost.

            Lots has (and for that matter have) changed in these mediums, but this insistence on marking the things that are least good about the way the industry works (franchising and risk-aversity) as The New Problem is getting absurd. People have been having this discussion for a very very long time. So clearly we all agree it’s a problem, but we have historical quips and quotes and essays complaining about exactly this sort of thing with literature well before 1900.

  10. DedlySpyder says:

    I do feel that there are some similarities between Hex and MTG, but this stuff has happened before, and Wizards has not done anything about it. The only reason why they are going after Hex (now a year afterwards and it is obviously gaining steam) is because it is a threat. I learned about Hex through the MTG judging community, so it’s not like Wizards didn’t know it existed last year.

    As for the game that has almost full sale copied MTG before, anyone heard of Epic TCG? Except for the resource system, it felt exactly like MTG, coping abilities and all. Wizards didn’t go after it, because it was spiraling downward, and it was not a threat.

    I may be a little skewed in my opinion, as I liked were Hex was going and backed it. I just feel that Wizards should have acted a lot sooner than now, the game just hit beta. If they hit it sooner, then they could have changed the direction of the game, without wasting an extra half year of development time (and associated costs). It seems like they waited to the point where, if the legal suit succeeds, Hex may not be able to scrape together a game with what is left.

    • Premium User Badge RedViv says:

      This is actually the thing that could break their neck – not protecting their broadly phrased patents in earlier cases, but now all of a sudden jumping out of the bushes with their Slivers of Law.

      • Trithne says:

        Slivers of Law: UB
        Creature – Sliver
        All Slivers gain [Tap]: Enter a bidding war with the other player. Whoever loses gives their collection to the winner. Everything bid goes to the nearest lawyer.
        1/1

  11. RanDomino says:

    Hex is obviously a Magic clone and Cryptozoic can go to hell (also because Hex looks terrrrrible- really, playing vanilla 1/2s is fun somehow?), but on the other hand IP law is literally the devil.
    I say let Cryptozoic release their terrible game and let’s all make fun of them when there are 30 people playing by this time next year.

  12. trjp says:

    The winner here will be the one who

    a – has more cash (lawyers are expensive – good lawyers are really expensive)
    b – manages to get their lawyers to understand the thing

    If we are saying that a ‘card game’ with ‘creatures’ and ‘lands’ and ‘tapping’ and ‘spawn sickness’ is something that WoTC ‘own’ – I’m sure they can make their case, that the game ‘copies’ their own…

    If we were to apply this logic to other games tho – I’m sure someone could have argued that a 3D game where a ‘player’ with a visible ‘gun’ shoots ‘enemies’ in a ‘base’ was ‘their game’ and thus Wolfenstein would have precluded every FPS ever made…

    My feeling is that WoTC own a brand, some names, some artistic designs – they do NOT own the gameplay mechanism in their game which I reckon any half-decent lawyer could point-out is like saying that “Monopoly owns dice”

    That all said – they could probably just stick to the ‘similarly of artwork’ thing and win…

    • Scurra says:

      “b – manages to get their lawyers to understand the thing”
      No, it’s managing to get a judge to understand the thing – and preferably according to your interpretation. And given how random even specialist copyright judges sometimes appear to be, I wouldn’t be surprised at any outcome of this case (beyond the obvious one of “lawyers get lots of money”.)
      There doesn’t appear to me to be much of a case on copyright grounds as there have been other “clones” that have been and gone. There is clearly no case on trademark grounds since the name and branding aren’t even close. I agree that there is probably some case on the similarity of artwork grounds, but even that is quite tough to call given that pretty much all physical CCG games have the same general card layout (there is a difference here with this being digital only, and that certainly seems to offer some grounds given that certain things can be represented in very different ways.)
      On the other hand, WotC need a bit of serious competition in this area – whilst Magic is a staggeringly good game that I have been playing for twenty years, it has been standing still for some time in terms of gameplay.

      • Archonsod says:

        There aren’t a whole lot of card games that look like Magic. I mean it’s not as if Cryptozoic had a game about duelling wizards which was nothing like M:TG. Apart from this one of course:
        https://www.cryptozoic.com/games/epic-spell-wars-battle-wizards-duel-mt-skullzfyre

        Also, copyright isn’t as clear cut as you seem to think. It’s perfectly likely they would win a copyright claim if say Hex included a creature ability called “Haste” which permitted summoned creatures to attack on the turn they were summoned, but lose a case in which Hex had called the self same mechanic “Summonstrike”. It’s not the mechanic itself which is copyrighted, but the idea. In fact, apart from the patent infringements (WoTC do actually own the tap mechanic) you could quite happily produce an exact clone of magic, except ditch the fantasy theme in favour of say sci-fi, and most likely avoid a copyright claim.

        What will be interesting here is that WoTC have requested a jury trial, so it’s likely to be a question of whether they can persuade the jury that the two games are similar. I suspect that would be quite easy if the jury consists of laymen, unless of course Hex’s lawyers manage to somehow get the jury filled with past Magic grandmasters….

  13. Shuck says:

    “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”

    No, that’s trademark law. Trademarks are the things you can lose if you don’t defend them. The point of trademarks (i.e., the mark under which you trade) is that they distinguish your product from every other product out there. It’s a name or look that’s completely unique to your product or company, and you’re allowed to legally maintain that distinction. If another product exists that erodes that distinction, even if it’s created after your product is already on the market, then your trademark is not unique and you don’t have a trademark. So you have to defend it or lose it. Even just allowing a trademarked name to be used as a generic term can cause the trademark to be invalid (e.g. Escalator, Hoover).
    Copyright, on the other hand, is the right to control the copying of your work – it can be applied however you want – that’s the point of it. That means you can allow certain types or instances of copying, no problems (e.g. George Lucas being fine with Star Wars fan-films – but they had to be clear, with any referenced trademarks, that those trademarks were the property of Lucas). This allows things like creative commons to exist while still maintaining a copyright.

    • Ben Barrett says:

      Too much to hope I’d not get anything wrong. Thanks for the clarifications.

      (I am not a lawyer)

      • Shuck says:

        I am definitely not a lawyer, but there’s so much confusion about trademark & copyright issues on even the most basic levels that seems worth correcting. I guess the confusion arises because copyright law alone is such a total mess that it confuses other IP issues, you have lawsuits like this one that are simultaneously taking issue with copyright and trademark that muddle things, and on top of that, some entities are using trademark in a weird attempt to workaround copyright law to maintain control of works that have fallen into public domain (e.g. with Edgar Rice Burroughs’ work). It is a real mess.

      • Premium User Badge frymaster says:

        To add to that, it’s not quite as simple as “you MUST defend”. They aren’t suing “Call of Duty” for trademark infringement either. Well obviously not, because it’s nothing alike, which is my point. The suing company can execute judgement on what they consider to be non-infringing.

        What it does mean is they can’t, for instance, hold off and then if the game gets popular decide to cash in now the company is worth suing. And if they don’t go after these guys but go after the next lot, they could use the fact that they left these guys alone as a defence.

        Basically, you don’t lose the entire trademark if you don’t defend against EVERYTHING (CoD), but by not defending, you are saying that you don’t consider that level of activity to be infringing, and you can’t change your mind.

        So the justification of “use it or lose it” may be giving companies too much credit sometimes. Obviously, this is a mass of grey areas so you can see why they’d be conservative in their approach.

        • Shuck says:

          Right – trademarks must be defended against infringement, but infringement requires the possibility of confusion between the two products/brands. If a reasonable person wouldn’t confuse the two, then there’s no infringement to be defended against.

        • LionsPhil says:

          Indeed. EFF have an article on it—the oft-asserted “must sue or it becomes Hoover” line is quite inaccurate.

          • Archonsod says:

            Somewhat different in this case though. Magic is/was the first big CCG and certainly the one most people are familiar with. As a result there is a risk of genericism – indeed concepts such as ‘tap’, ‘summon’, ‘haste’ and similar are already common parlance within the CCG world and beyond. True, the law doesn’t oblige you to sue to protect this as such, however doing so is not necessarily a bad idea. Most gamers I know already use the term ‘tap’ in reference to marking or rotating a card in a game. I’m sure if a company opted to use the word ‘tap’ in reference to this in a rulebook they could already claim ‘generic’ and find plenty of people who’d back that up.

      • Premium User Badge jrodman says:

        Very few of us are lawyers, but if you’re going to write about this stuff you should learn the basics.

        Trademark is about protection of appearance and names which are intended to identify a specific product. Ie, marks of those items of trade. We allow companies to use things like common language words, and to use these things broadly, because it’s intentionally broadly disseminated for recognition value. In trade for being able to claim ownership (within a specific market!) of common images and names, you’re not allowed to just claim this stuff without making real use of it in the market. This includes actually selling things and showing that you are willing to warn people away from using it generically.

        Copyright is the about the protection of (originally) text. In other words, exact duplication of works and things.

        Patent is about the protection of mechanisms. It’s originally specific implementations of inventions, as in a particular method of recording sound onto wax.

        All of these have been stretched a bit as people do power grabs and technology forces reevaluations, but that’s the base thing.

        Now applying it to this context. If the art, characters, or text from Magic the Gathering were used, that might be a copyright issue. If the look of the game cards and game packaging are “deceptively” similar to Magic the Gathering, as in people might misunderstand and think that it’s actually the same game, then that might be a trademark issue.

        It’s very difficult to see how a patent could be involved here. If it does, it’s going to be a relatively abusive misuse of the patent system.

        Since they’re doing discovery here, it’s probably going to be about whether the similarities with M:tG are willfully intentional, which might be a trademark issue. Copyright should not require *much* discovery because it should be pretty damn obvious if the works are exactly duplicated.

        Realistically, however, lots of IP suits involve attempts along multiple fronts, because REALLY a lot are just bullying tactics. “We need to do discovery of all your shit” is a good way to waste your victim’s time and money and go on a fishing expedition for anything that might enable broadening of the lawsuit. I personally suspsect the real issue here is Hasbro worries this new product will eat into their sales, since it is mechanically similar. And since there are no legal protections for game mechanics (lots of case law here), they’re probably just filing a nuisance lawsuit.

        The place that COULD be legitimate is if the SET of cards in hex is unreasonably similar to the SET of cards in magic, and you could claim copyright on that set of cards as creative works. Discovery might get used to dig into intentionality there.

    • drinniol says:

      It’s a mistake 100% of people writing these kind of articles tend to make, don’t feel bad :)

      • Ben Barrett says:

        Nah, if you’re reading an article, no matter the topic, you should expect it to be as factually accurate as the author can reasonably ensure. I’m pretty sure I read a similar comment on Doug’s piece before writing this one and it slipped my mind. Shoulda given it another thorough read before handing it in. Thankfully Shuck posted in such a way that it makes a nice footer to the article as a highlighted comment. Props to them!

        • stupid_mcgee says:

          Most of the time when RPS has covered legal matters, they have royally messed it up. Financial as well. (referring to all ROI as dividends in the Kickstarter investor article was a good one) Kudos for owning up to your mistake and being earnest in learning from it. I wish more journalists would do this.

          I sometimes feel like a lot of society has adopted this “must be perfect” mentality, and it is ruinous to people. It’s okay to make mistakes. It’s only when we refuse to learn from them that it become problematic.

          -edit-

          BTW, if you do want to learn more about IP law, I highly suggest contacting the Electronic Frontier Foundation for future articles. Talking with journalists and the media about copyright, patent, and trademark law is what they do. Keep in mind, however, that they are an advocacy group, so they do have an agenda, but they are very knowledgeable about IP law and good people to contact regarding a lot of these kinds of affairs.

  14. MobileAssaultDuck says:

    My position is that if you can take something I or someone else made and make it different/better, you should be allowed to, even if it is only a tiny improvement.

    Such was the nature of human creativity for most of human history. This trademark/copyright shit is getting in the way of the normal flow of human invention.

    The man known for inventing the cotton ginny did not invent it, he up-sized a small handheld device invented by someone else.

    Almost every song of Bob Dylan’s early career were other people’s songs with his lyrics on top of them.

    No human on earth invents original ideas, it’s all remixes of remixes of remixes.

    • malkav11 says:

      I really feel like the main issue with cloning (and I think the idea that Hex is a straight clone is woefully unfounded) is large, well-financed organizations cloning the work of small companies or individuals. Why? Because if a little guy copies something a big guy is doing, with or without improvements, they still have an uphill battle to be remotely competitive with the big guy’s market share, name recognition, and financial resources. But if someone like Gameloft copies something a three man team is doing, they still have the market share, name recognition and finances, and now they have whatever was cool about what the little guy introduced, too. The little guy is sunk.

      I can’t imagine Hex would be a threat to Wizards if they actually attempted to compete, because they are by far the market leaders in the TCG space and have tons of money and name recognition, they’re just sitting on their hands as far as digital goes. And Cryptozoic isn’t.

      • Shuck says:

        It’s especially egregious when big companies do it – the way Zynga, for example, would clone a game and then use their larger size to make hundreds of millions on the game while driving the original developer out of business is absolutely indefensible. It’s still a problem with smaller developers cloning the work of other small developers, though. A game can easily be overwhelmed in the market by clones, with the mass of cloners acting collectively like a larger company. The only real difference is that no one really wins in that situation. But yeah, it’s rare that a smaller company can really challenge a larger company by cloning their work – market share works against them. It’s only if the larger company’s product has become so ubiquitous as to be a sort of monopoly, and then they abused that pseudo-monopoly position (outrageous pricing, failing to meet demand, etc.) that anyone smaller has a chance to break into their market with a clone. And under those circumstances it’s harder to fault the cloner.

    • stupid_mcgee says:

      “This trademark/copyright shit is getting in the way of the normal flow of human invention.”

      I love it when people trot this out. Do you have any fucking clue how shitty it was for inventors, artists, musicians, and authors back before there were copyright laws? Most authors would either have to conscript with newspapers to secure safe payment for their works, or else print the works themselves. Why? Because if a book was selling well, a printer could just copy it and sell it themselves, leaving the creator with nothing. In fact, that’s what many publishers did. That’s why the British Parliament created the Statute of Anne. If you want to talk about “getting in the way of the normal flow of human invention,” then I would think that not being able to reliably make earnings on your creations is a pretty damn good example.

      While there are many instances of copyright abuse (the current term length is fucking absurd and should be reverted back to the 14-years initial, 14 year renewal system), to throw out the entire system would be disastrous.

      Furthermore, your understanding of Eli Whiteny’s cotton gin patent is wrong. Whitney patented the automated cotton gin. Yes, there were other previous cotton gins, all which were operated via physical means, like cranks and hand-pumps, but Whitney’s was the first to be fully automated. That doesn’t mean that Whitney owned the cotton gin, it means he owned the exclusive rights to a specific part or set of parts that creates an automated cotton gin. And he only owned them for a short set of time. Current term-length is 20 years.

      And while I dislike Bob Dylan for a whole host of reasons, your claim that he stole other people’s songs for his entire career is false and shows a complete lack of music theory. music law, and the genre of folk music. I can play a song with the chord progression of E minor, G Major, C Major and that “song” will have been played a million times before. That does not constitute a full arrangement, however, and is not able to copyrighted. Your assertion that Dylan “stole” songs is not legally true. He took common arrangements and even a few folks songs which were in the Public Domain, and he used them for the arrangements of his songs. Many of his core arrangements are very generic, but he utilizes his full arrangement to create something unique.

      For example, I can play the chords for “Oh My Darling, Clementine” and add different lyrics, makes subtle changes to the arrangement, add harmonies, add additional accompaniment , etc. When I go to copyright that song, I am copyrighting the full arrangement and the lyrics. This does not mean that I now own the arrangement for “My Darling, Clementine,” it means that I own the rights to the specific arrangement that I have orchestrated from “My Darling, Clementine.” It also means that I own the lyrics that I wrote. Now, if the arrangement is not deemed to be transformative (ie: I haven’t done enough to make it unique and noticeably distinguishable from its Public Domain original), then my copyright claim for the arrangement can be overturned. That doesn’t mean that my lyrical copyright is invalidated, just that the arrangement I made is no longer allowed to be copyrighted.

      You seem to be confusing themes with expressions. You can’t copyright a theme, like copyrighting the kung fu dead master and revenge plot. However, you can copyright an explicit expression of that theme, such as the movie Kung Fu Master Killer. That means that people can still make kung fu movies about masters being killed and students seeking revenge, they just can’t retell the story of Kung Fu Master Killer and then claim it as their own. In this way, copyright does a lot to protect artistic expression and the ability to receive fair payments for such creations, as well as to promote the creation of new and original material rather than rehashing someone else’s material.

      • gwathdring says:

        The existence of IP law is great in theory. In practice, the people who win out are usually the same people who won out before. Do I have any idea how shitty it was for inventors before IP law? Yeah–they had their inventions stolen, they got swindled into selling things only to have their inventions used for profit they never saw a penny of. Still happens all the damn time. Come on, MICROSOFT is based on exactly the practices you’re implying IP law has saved us from and it’s one of the richest and most powerful companies in the whole damn world.

        IP law hasn’t saved us from some kind of inventor/creator dark age it has merely institutionalized creation and invention both for better and for worse. It has changed who calls the shots.

        With some clever redesign we can try to make the legal system a more natural fit for the way these things come about and for protecting the people who most need protection. I agree throwing out the entire system is asinine, but that’s almost never what people mean when they trot out the phrases you’re contesting.

        It does seem to be what this individual means … but you’re not rebutting the idea presented (however unclearly). The idea presented is that the concept of copyright is based on intellectual ownership which is in turn based on faulty precepts of origin. When you claim ownership of a book or a song … that’s something that has been influenced by your environment and other artists. Your right to protect that creation is, in some people’s mind, inherently suspect and not just at the level of chord progressions but even at the level of specific arrangements and lyrics. The very concept of owning a creative work is, to some people, a suspect ideology.

        Getting huffy about not respecting creator monopolies is kinda missing the point. The OP doesn’t believe creators have a right to monopoly so IP law protecting that monopoly better than before is not something the OP seems interested in.

        I could be wrong, but that’s my impression. For my part I’m of two minds about creator monopoly.

        • stupid_mcgee says:

          Money = power. Some things never change. The thing is, if you have proper and obviously provable legal grounds, it doesn’t how much money the other side has. That’s the beauty of legal protections. And people need to realize that it’s not just Games Workshop and Bethesda going around and harassing folks, there are tons of people out there doing the same thing to tons of other companies out there, too.

          Prior to the ill-conceived notion of software patents, there was copyright. You copyrighted your code. It was actually Steve Jobs who pushed for patent-like protections for software, such as being able to use a mouse to interact with GUI elements and the use of a trash can icon for deleting files. Jobs was a big advocate for software patents, and he eventually got his way.

          I agree that patent and copyright protection often goes too far, but I don’t think the world would be at all better without the legal protections that these things afford. Quite the opposite. I think the world would be much worse. However, that does not mean that I favor copyrights being held for 90-some years or for an entire artist’s life plus 45 years or things like that. Quite the opposite. Copyright and patent abuse needs to be dealt with vigorously and it is ruinous to the process of invention and the free expression of creativity. Lawyers that excessively bring forth cases without merit or dismissed with prejudice should be cited for censure.

          Trademark abuse is also a huge problem, such as Disney trademarking a character’s likeness and then using that trademark to harass people selling cakes with that trademarked character. They act under the guise of losing their trademark, but it’s nonsense and character likeness should never be, itself, trademarked. (read up on the Mouse Liberation Front for some interesting tales of trademark and copyright wars relating to Disney)

          While I do agree that discussing trade dress can be obnoxious, it is an essential part of properly defining your IP. I’ve been dealing with TM and copyright law myself, working on a few things, and it is weird minefield, but it is highly essential. You NEED to have a copyright. So much so, that you have one once you publish material whether you officially register for it or not. (at least in the USA)

          Another big problem is that we do need to address the archaic forms of copyright, and I believe the best place to look for that fix is in the music world. There is a thing called songwriter’s copyright and there is a thing called a songwriter’s fee. This was established back in the 1920′s, IIRC, and it was a way to deal with the legal issues of covering another musician’s songs. Essentially, they worked it out so that you could pay a fee to the label or songwriter’s group and that group would issue the songwriting fee to the songwriter. Unlike with copyright, you do NOT have to request permission. If I want to record a rendition of Vanilla Ice’s “ice, Ice, Baby” then all I have to do is send him, his label, or songwriting group a flat songwriter’s fee. Now, if i were to sample Vanilla Ice’s recording of “Ice, Ice, Baby” for my recording, I would now have to seek explicit permission and the label or artist can set the fee at whatever they want.

          A weird workaround that many EDM artists use is this: record a sing-alike musician for the hook or hire studio musicians to play the song you want sampled, pay the songwriter’s fee, then use your recorded cover as a sample. If you’re doing a remix of a Beyonce song, it is infinitely cheaper to do this than to pay for copyright and hope you get permission. It is entirely legal and entirely absurd at the same time. There is no reason you shouldn’t be able to pay a similar songwriter’s fee and use the actual copyrighted work. It’s obtuse and contrite and only exists like this because of an archaic music distribution system that we’ve largely obliterated with the push towards digital storage of music.

          -edit-

          It just struck me: a good example of this music trick is the Utah Saints’ anthem, Something Good. The sampled vocal hook is from the Utah Saints getting Davina Perera to sing the Kate Bush song, “Cloudbusting.” They did this because it was cheaper than paying the licensing fee to actually sample Bush’s work.

          • gwathdring says:

            Mandatory licensing is a great idea in theory. But prices and rates are set but the record companies who in turn slice off the top. It’s still better than the alternative and I love that you can cover a song without explicit permission … the catch, of course, is that the way these things work as of a few years ago when I looked into it for my own purpose, it has to be a good-faith cover that doesn’t alter the original character of the song and that subjective element takes away from the power and ease of the mandatory licensing system.

            And then of course there’s the bit you mention about it only working for covers and not for, you know, actual copying.

            I agree this sort of thing would be phenomenally more sensible if no one could restrict your right to USE their material, only their right to get credit and, unless waived, a share of the proceeds.

            I also believe that the patent and trademark systems are phenomenally less useful and more problematically implemented than the copyright system. Mostly we just need to come back to this stuff more frequently to clean the gutters, freshen the paint, and take a good hard look at whether or not it functions … and the last time we did that in the US was the DMCA and it’s *shit.*

  15. hypercrisis says:

    Since Wizard have no genuinely competing product they shouldnt have a case. Duels and MTGO arent competing with this, games like infinity Wars are.

  16. BooleanBob says:

    Ben’s right, you guys: Wizard shoes are great, you can disassemble them in the late game and build BoTs and a Bloodstone out of the components.

  17. Theboredfish says:

    I’m a little bothered by the constant “It’s a direct copy of magic.” comments that are popping up. There are similarities, but where there is overlap I see those mechanics as being required in any trading card game. In both games you have resources (Mana vs Threshold), and you signify that a card has been used by changing it’s orientation (Tapping vs Exhaustion). The core of the game in HEX branches drastically away from MTG. For every mechanic that has the same feel as something in MTG, Cryptozoic try something new.

    In Duels you can select an avatar that does little to nothing, In HEX the hero you select gives you an additional ability to play as it builds up charges. While you may be thinking “But that is the same as the Planeswalkers that Magic uses!” however MTG was not the first card game to employ that. As far as I know the first was the WoW TCG which first released in 2005 by Upper Deck and later was picked up by Cryptozoic.

    I imagine the internal documents for HEX are really going to look a lot like the ones they have for WoW:TCG, and that this lawsuit will end without severely hindering the development of HEX at all.

    For those interested the WoW:TCG standard rules can be found here

    • malkav11 says:

      That’s been pretty frustrating for me too. I won’t deny that Hex is closer to Magic than, say, Hearthstone is, but the idea that it’s a clone product is just not supported by looking even slightly further than face value, and I’m not sure even that much attention need be paid to tell.

      Also, FWIW, as far as I can tell, the Planeswalkers may be similar to Hex’s champions but they are an optional game mode that is entirely self-contained within the Planeswalker cards themselves, whereas champions are a core part of Hex’s design, are used in every game of Hex, and cards and basic resources both directly and explicitly interact with them.

    • gwathdring says:

      I said something similar over on PCGamesN.

      “My main worry is that their claiming proprietary access to some basic answers to the question “what kinds of special abilities can my cards have?” in this sort of deck-based dueling game. In other words, they’re essentially claiming the right to deck-based summoner duel card games. That seem … wrong. As a game designer that bothers me. It would be like Activision and EA getting into a legal fracas over CoD and Battlefield, citing things like weapon unlocks, capture the flag, death match, elements of the gunplay, etc. Or generic FPS #1 accusing generic FPS #2 of having escort missions, horde-defense missions, linear levels, and so forth. It’s crass and it’s a gross misunderstanding of what Magic The Gathering is. It’s ancient and massive as hell and it’s also utterly generic–it has done pretty much everything you can do with cards in an even remotely similar game simply by virtue of existing for an eon and a half. By wielding copyright it’s trying to claim ownership of an entire sub-genre.”

      That said, Cryptozoic screwed themselves. For example: While tapping is THE way to convey multiple states of a card in a physical game … in a digital game? It’s unnecessary. By being to slavish to physical card games they gave WOTC avenues of attack they didn’t need to allow. Again, I’m not saying I think WOTC should be able to claim ownership of these sorts of mechanics … but where physical card game designers can’t get around it, digital game designers *can.*

      Further they copied things they really shouldn’t have. 5 colors? Come on, they’re not even TRYING.

      I have no sympathy for either party here. Cryptozoic did a huge disservice to their customers by painting such a giant friggin’ target on their backs.

      • malkav11 says:

        There are reasons they chose many of the similar elements. I don’t always agree with their reasons (for example, I think Magic’s resource system is a piece of trash that frequently ruins that game, and while Hex’s resource system differs in a couple of meaningful ways, it doesn’t really address the majority of my issues with Magic’s system, and I don’t buy their argument to me that this is preferable to the many resource models other TCGs have used), but I don’t think it’s fair to suggest that these weren’t considered choices.

        • gwathdring says:

          5 colors. You think that’s a considered choice? It’s an arbitrary number. The practical significance of four, six, seven colors? Not that different.

          There are a lot of little elements like that.

          The life total default of 20 and the requisite damage scaling.

          The use of tapping. In a card game (as I’ve mentioned elsewhere and indeed in the post you responded to if only by allusion), a lot of these things that WotC did in magic are just basic things you can do with cards. But here? You can make the cards turn different colors or have tokens hover over them without making the game physically awkward and fiddly. So *why tap cards?* I know, it’s not something WotC should be able to use against them. I wholeheartedly agree. But it’s something Cryptozoic should have had the foresight to see WotC *could* use against them given that, not using physical cards where orientation is one of the simplest practical visual cues about what’s going on, they could have done any of dozens of different things that were no less friendly and intuitive to players.

          The hand size. Plenty of games have a different starting hand-size. Indeed, I’d say 5 is the most typical number. 7 is a little on the large side and a little more unusual. Maybe 7 really works better in this game. Maybe. But why not 8, 9? Is there a reason? It’s hard to trust that there is when they keep doing this. They’re either not paying enough attention to this stuff or they’re actually copying it on purpose. Either way, it’s crap.

          I’m not saying Hex is a blatant copy. I’m acknowledging that these are relatively superficial details that don’t affect the mechanics that much. If you proportionally scaled all of the damage numbers to match a life total of 50 or 100 … the pacing of the game would be identical. It’s not *important,* really … except that in all of those unimportant details where they could have just gone with whatever they wanted? They copied Magic. That’s their own damn fault. That’s stupid. And it’s disrespectful to their customers who bought their game and invested money in their game because of the elements (both different and similar to magic) that actually DO matter. It puts those people’s money and time in jeopardy now because a lawsuit that they could have easily made less of a slam-dunk.

          Again, as I said, I have no sympathy for either side. The customers are getting screwed here–some of them possibly to the tune of over a hundred dollars. But it’s foolish to just blame the legal system (which needs serious fixing) and WotC’s use of it (which even where it is abusive is hardly evil or unexpected and isn’t even entirely abusive). This is also Cryptozoic’s fault.

          If they were a person being attacked by another person, or a victim of street harassment or whatever I wouldn’t be saying that. But they’re not. They’re a company trying to make money off of a game design working in a space with very strict rules that dictate their relationships with other companies and their creative produce. This isn’t about personal safety and well being, but commercial safety and well being. Cryptozoic has fault here, too.

    • draglikepull says:

      I think you’re significantly under-stating the similarities. Here are some of the ones that I can think of off the top of my head:

      1 – both games are played with 20 hit points

      2 – standard deck size is 60 cards (these two points may sound minor but the entire math of the game is balanced around them and they have a huge impact on design)

      3 – Magic’s colour wheel is copied exactly (there are five colours, and they’re even the same five colours as M:TG)

      4 – almost all of the abilities are carbon copies of M:TG abilities like haste, lifelink, flying, etc.

      5 – the phases of each turn are virtually identical

      6 – the kinds of cards (instants, enchantments, sorceries, creatures) are identical

      7 – many individual cards and even deck-archetypes are near perfect copies of M:TG cards

      8 – lots of minor rules like starting hand size, damage healing at the end of every turn, etc.

      That’s a few off the top of my head, I’m sure I’m forgetting a number of others. Sure, any of these things on their own, or even a couple of them, could be easy to brush off. But the combination of all of them is what leads to complaints that they’ve just copied Magic.

      It is *not* inevitible that any card game has these features. As others have mentioned, Hearthstone explores a lot of new design space. It’s been a long time since I played it, but I remember the Pokemon card game being quite different as well. There’s a ton of design space available in CCGs. Cryptozoic chose not to explore that design space, and instead make a game that’s exceptionally similar to M:TG. It’s not identical; there are differences and to some people those differences are meaningful. But Hex is a game that very clearly and obviously intends to play mostly like Magic.

      [Edited to say that I see gwathdring made some of these points above, but that message wasn’t there when I started typing this comment.

      • Theboredfish says:

        You do make several good points, however I want to argue a bit more.

        As far as the abilities go however, they changed the names of the vast majority of them and many other TCG including Hearthstone use the same ones. I only played Hearthstone briefly but I know that I’ve seen the equivalent of Vigilance, Lifelink, Haste, Flying and ‘+1/+1′ counters in that game as well.

        The color wheel they probably should have gone with a number other than 5, however DuelMasters uses the same colors as both HEX and MTG

        I’d actually like to see the cards that are copies of what exists in MTG if there is a list or you can point them out in the spoiler, I haven’t seen any of those yet, but I’ve only played HEX for maybe 10 hours.

        The turn phases are one of the mechanics I’d consider a staple. Hearthstone has the same turn setup with less confirmation in-between steps due to your opponent not really being able to take actions during your turn. The lack of the ability to take actions during your opponents turn I believe to be one of the great shortcomings of Hearthstone. The turn is more pronounced due to the game confirming with the adversary that they have nothing to say about what you just did.

        The Minor rules you mention are common in a great many other games. Starting hand size in Magic is the same as, Pokemon, Yugioh, Duelmasters, and Hex. Damage healing at the end of every turn is also part of Hearthstone, Yugioh, and DuelMasters.

        Note: I focused on the similarities between Hearthstone, Magic, and HEX due to it being made by a separate company from the other two games (WotC also publishes Pokemon, and Duelmasters). Also it seems to be the game everyone claims is ‘Different’ but from what I’ve experienced it follows the same Tropes as Magic and HEX.

        • malkav11 says:

          The only example I’ve been shown was Murder, which is called the same thing in both games, does the same thing, has the same converted resource cost (although Hex and Magic’s resource systems are meaningfully different so this isn’t as directly comparable as it looks), and are within the same color profile (though Hex’s colors are not actually the same colors as in Magic and certainly aren’t called the same things). Which is somewhat damning, admittedly, but I’m not convinced there are a large number of cards that are that close and even then, we’re talking the sort of card functionality that is fairly bedrock to this sort of game and not about the many unique Hex cards, large swathes of which would not be possible in a tabletop environment.

        • gwathdring says:

          The lawsuit itself contains numerous such cards, and it’s linked in the above article.

          While I agree that many of WotC’s arguments (and have said as much elsewhere) cross the line between copyrighting their game and copyrighting the answers to basic design questions in the general sub-genre of their game … the turn structure they use isn’t that for me.

          I’ve played way too many games that do way too many different things to be comfortable with *just how many* of the same basic answers to basic design questions Hex uses that Magic also uses. I’m not saying Wizard owns the right to these things. I’m not entirely comfortable with their lawsuit. But just as when two animals are close enough we consider them part of the same sub-family instead of merely part of the same order … there’s a point where when you’re asking too many of the same questions to begin with, the fact that many your answers are all-but pre-determined doesn’t save you anymore. Especially in conjunction with using the same damage scaling, the same colors, whole cards that seem like copies, unnecessary features like tapping in a digital game, and so on and so forth.

          My stance is not that Wizard did something so original no one can use the individual features they used. But if you use too many of those features and it’s not a problem … well, what’s the point of intellectual property in the first place? Settlers of Catan isn’t exactly a complex game and it wouldn’t be that hard to accidentally make something startlingly similar … but if I set out to make something that’s like settlers of catan but different and I leave too many of the final features exactly like settlers of catan both in places where there aren’t other meaningful options that achieve my goals and in places where there are? I’m not doing this properly unless I have permission.

          Hex and MTG have plenty of meaningful distinctions. WotC is probably motivated by somewhat slimy ideas here. But … that doesn’t change that I feel Hex went *too far* in copying MTG and/or *not far enough* to actively differentiate themselves.

          • malkav11 says:

            All the other cards shown in that legal document are at best broadly similar or fill similar roles in play. A card that’s identical except for the art and the cost (because of the different resource system at work) is a fairly strong argument. A card that happens to fill a similar role in play is not.

        • Alistair Hutton says:

          Duel Masters is a Wizards of the Coast game. It’s specifically designed as Magic-for-kids, that’s why it shares so much.

          It’s actually a pretty neat game with an interesting take on card advantage when losing.

          And even then it is has more things different about it from Magic than Hex does.

          • gwathdring says:

            Yeah, Hearthstone is a much more interesting study. It’s not a surprise at all that WotC products and WotC licensed products don’t cause WotC legal concern.

  18. kwyjibo says:

    Take a look at the Wizard of the Coast’s patent for trading card games – http://www.google.com/patents/US5662332

    It covers every game in which you build a deck and then play cards. They can pretty much sue whoever they want in the TCG space. You can’t build a better mousetrap if the very idea of trapping mice is protected.

    • Shieldmaiden says:

      I remember noticing that patent in a Magic rulebook years ago. It does make this a bit more interesting than most of these legal squabbles. Considering the number of people Hasbro could sue and don’t, this one intrigues me.

    • Scurra says:

      Yeah, but that patent is pretty much about to expire, which may be part of why they are flexing their muscles to try and defend their position on other grounds, since some of the technical stuff which they originally claimed (and whilst some of it was nonsense, some of it was entirely valid) will no longer be protected on those terms.

    • Archonsod says:

      Claim one specifies tapping a game component in order to bring another into play. Claim 2 specifies tapping other components in order to mark them as used when bringing another into play, and claim 3 specifies the 90 degree rotation and untap mechanic.

      So in fact, the only way to infringe that patent would be to include the exact same tap mechanic as Magic and even then would require duplicating other mechanics; the first claim could be avoided simply by having cards discard to the bottom of the draw pile rather than a discard area for example. Similarly claim 3 would be non-applicable if you decide to rotate the cards 180 degrees rather than 90.

  19. The Random One says:

    That headline joke is rather poor. Here are some improved suggestions:
    “Some Legal Magic”
    “Gathering Evidence”
    “Of Wizards and Lawyers”
    “Summon Summons”
    “Is This Your Card?”
    “Wizards of the Cost”

    • Ben Barrett says:

      This is the meanest attempt to start a pun thread of all time.

      • Horg says:

        In the spirit of the article, I suggest suing for emotional damages. Also, as I am upset that he upset you, make it a class action gig so I can get in on it.

        • The Random One says:

          Suing for emotional damages is bad. You should sue for emotional life loss, which can’t be prevented.

          (Sorry for being mean, Ben. You know I still love you, right? Mean puns is how I show my love. You should see the cards I send on Mother’s Day.)

          • gwathdring says:

            She thought the lawsuit was real and hired a lawyer and was sobbing on the phone with Uncle Mike.

            Happy Mother’s day, indeed. Prick.

        • Faxmachinen says:

          No need for such haste; it’s not a split-second decision. Just put all your grievances on the stack – we’ll resolve them one by one, and in the right order. Don’t worry, you have priority.

  20. bv728 says:

    As usual, not a lawyer but I play one in Phoenix Wright games:

    One of the elements of a lawsuit such as this is you have to list every point of similarity, or it can be evidence you concede that point of similarity to the public domain. No individual claim here is explicitly a violation- the idea is to establish the many, many similar points as evidence that the work as a whole is a violation.

    I think their position is pretty strong – Hex’s trade dress is way too close to Magic’s – part of why they’re not going after Blizzard or Stoneblade is that Hearthstone uses round portraits with no colors of mana, and SolForge gets rid of Mana entirely. Duel of Champions uses full bleed with a radically different layout. Those are all elements of WOTC’s suit – It’s a lot of little elements that are not in any other competitor.

    • gwathdring says:

      Absolutely. It’s a good case.

      That doesn’t mean it’s good that the case is being made, and that’s what a lot of people are reacting to. Should Cryptozoic have made some of the aesthetic and superficial choices they did? No. Is that what WotC is attacking? Legally, yes, but practically what they’re after is shutting down competition from a game that gets into their space. They want to take out the competition. It’s not evil or anything … but it bears no relation to what is or isn’t fair to the artistic side of WotC that copyright is in theory there to protect and it’s bad for us as consumers.

      This is a turf war, nothing more or less. And however legitimate it’s legal framework, that’s what it feels like and it’s hard to get over that feeling even if Cryptozoic is very much in the wrong in a number of ways. At the core of the matter is Cryptozoic providing a game that has meaningful mechanical differences from Magic The Gathering and fills a digital space that Wizards does not currently fill anywhere near as well … and WotC trying to stop that because it looks like a threat.

      And … well, whether or not Cryptozoic produced and dressed their product unethically, that’s unethical too and it’s anti-consumer. It’s impossible for a lot of people to be on WotC’s side even if (like me) they’re also not on Cryptozoic’s. If WotC wins (and they likely will) that’s bad news for card games and it’s bad news for us. It’s also entirely Cryptozoic’s fault they aren’t less of a legal pushover in this case right now.

      Further, it just really seems to fly in the face of how game design works. As I’ve said elsewhere, some of the stuff Wizard says is the same is stuff that *is fundamental to the whole sub-genre.* They shouldn’t get to put it in their list any more than they should get to say “The cards are rectangular” as if that actually matters one iota. The judge who reads this won’t have played either game in all likelihood. They probably won’t know a damn thing about game design. And here comes WotC parading around a bunch of similarities that anyone who plays these kinds of games will laugh right out the door–things like flying, haste, mana cost, etc. Some of the core mechanics like the way mana works–the way you actually pay for your cards and get them in play–are different. Fundamental aspects of the game are different … and really, that’s more important that showing how much is the same. We should care about how important the similarities are, surely.

      But no. We care about trade dress. It is heartbreaking for me as a designer to see this.

      • bv728 says:

        There’s an element I want to emphasize, so let me rephrase:

        Wizards is, by law, required to list in their complaint every element of similarity between Hex and Magic,even when those elements are non-infringing. If they don’t, then the case can be dismissed, or require amendment to include those factors. The list provided in the suit is supposed to be an exhaustive list of similarities – which, if any, actually infringe is a matter addressed during the trial or in counterfilings by Cryptozoic.

        I also disagree this is about knocking a competitor out. There are a good five digital CCGs out there, but none of them get hit, because *gasp* they don’t duplicate MTGs trade dress, rules, or terminology. Just like there are still a multiple competing cardgames (dozens if we include LCG-style ones, which I feel we should) that aren;t getting sued despite being bigger threats than HEX. Wizards communicated with them asking them to make changes – they didn’t need to if they were just shutting down a rival. As a backer of their KS, I have been expecting this for a while, because while it’s not purely derivative, they clearly derived every element from Magic, then only polished and mutated some of them.

        EDIT: I’d also note that their resource system is basically a derived from the brilliant Shadowfist, another competing card game Wizards isn’t going after.

        • malkav11 says:

          I would note that many of those other TCGs, including the two biggest digital TCGs, are being made by large companies with deep pockets and plenty of lawyers. I can’t -swear- that’s a factor at work here, but I’d be very surprised if it weren’t.

          Also, quite frankly, no LCG and precious few physical TCGs of any stripe are any sort of threat to Magic’s dominance of the physical cardgaming space. The collectible games are lucky just to cling to life, and the LCGs apparently sell like boardgames – i.e., a few copies a month, versus Magic’s fat cash hose.

          • Archonsod says:

            Given Hasbro are the largest toy and games manufacturer in the world and have been happy to sue companies such as Warner Brothers in the past, I doubt size comes into it. Thing is, most TCG’s deliberately seek to distinguish themselves from M:TG in some way, Hex on the other hand pretty much markets itself on the similarities.

            I also doubt it’s a competition thing either. If WotC were really worried about competitors I doubt they’d have given the NetRunner license to their main competitor, particularly given it’s far more likely to hurt them in their actual market than an online game.

          • gwathdring says:

            Hex is going to hurt the market for their WotC’s own digital game, I guarantee you.

            Netrunner is being licensed from WotC as you point out. They make money off of it whether or not they produce it. They have other things to focus on, so why not? If they had been planning on rebooting it themselves, they wouldn’t have licensed it. Heck, maybe they’re kicking themselves now for not doing that, but either way they still make money.

            That’s worlds away from allowing a competitor to make money off of a similar product for which you receive nothing. They get a cut of Netrunner. It’s not about making sure no one else makes money. They aren’t evil or petty. It’s about making sure THEY make money. By licensing Netrunner, they got the cash without assuming the risk. Win-win.

            Hex is not win-win for them. Comparing the two is absurd.

          • malkav11 says:

            If Wizards had a really strong legal case against another large company, I am sure they would pursue it. I don’t see the case against Cryptozoic as being particularly strong, and I do think they could make it against a number of other TCGs in the market because much of what they’re citing is commonplace in the genre, but they’re making it against Cryptozoic because Cryptozoic does not have the financial or legal resources to wage a protracted legal battle, and does have a product that has the potential to compete with them. I don’t know for sure, but that’s my sense of the situation.

            I would also note that Netrunner is zero threat to Wizards’ bottom line even if they hadn’t been licensing it. First of all, LCGs do not meaningfully compete with CCGs. They don’t sell nearly as well and they don’t turn anything like the profit. Hobby gaming shops stay afloat on Magic. Boardgames and LCGs are a sideline that does single, maybe double digit sales tops monthly. Secondly, Netrunner already had its day in the sun as a CCG. It tanked and Wizards sat on it for over a decade. If they seriously thought it could compete with Magic, they’d be running it right now, not FFG.

            Again, nobody’s a threat to them in their primary market. But they don’t have that kind of dominance in the digital market, and if they care about being in that business at all (which is debatable given their apparently lackluster approach to it), things like Hex -do- represent a real and meaningful threat. Certainly as long as they continue to undersupport the digital space in favor of the physical market.

        • gwathdring says:

          The trouble being there’s no such thing as originality here. It’s all about influence and learning and theory, and luck.

          Magic didn’t get to where it is because it learned nothing from other games and did something no one had ever seen before in any capacity whatsoever. Some games/books/movies/whatevers DO do that, or close enough but … we shouldn’t base our legal system of copyright on that concept any more than we should base our career adivce on the fact that Bill Gates or Andrew Carnegie got stupidly lucky and so could you!

          That established, your point needed no emphasis. Message was received. I’m arguing that, whether or not such is good and proper legal practice, it still flies in the face of how game design works. Not that our legal system needs to keep game design in mind all the time … but it’s not just game design, is it? That’s the problem. It’s not that I don’t GET it. It’s that I don’t LIKE it.

          Also Hasbro not suing other people isn’t proof there isn’t a turf war at foot. This is about dollar signs; they wouldn’t give a flies’ regurgitated shit if this was a game two people played in their bedroom. They care because it has distribution. Because it competes. I said nothing more or less. It being about money doesn’t make it trivial or wrong or bad or evil. But it being about money means it’s not about us and I for the same reason it’s not wrong or bad or evil that WotC cares about their money, it’s perfectly reasonable for me to remark that I think this is bad for us whether or not Cryptozoic deserves what’s coming to them in a legal and/or ethical sense.

          If WotC thought they had a solid case against and solid competition from Hearthstone? They’d be doing something about it *right now.* Not necessarily a lawsuit. But they’d be on top of that in a heartbeat. That’s what companies do. WotC isn’t there for us. It’s an entity unto it’s own with it’s own needs, wants and dreams that aren’t necessarily good for us. Consider, too, that Hearthstone is heavily wrapped in an IP all Blizzard’s own rather than a new and unknown and generic-seeming IP It’s dressed in an art style all Blizzard’s own. It is not marketed in direct competition with Magic quite so predominantly as Hex. There are any number of reasons for WotC not to get involved in suing Blizzard that have nothing to do with whether or not Blizzard infringed on their game design.

          But that’s sort of the problem with Magic. Magic is itself a fairly generic game with a fairly generic (and inconsistent) fantasy art-style. That’s fine and all, but it puts them in this really weird space where Magic’s size and age could give it grounds to strike down any sufficiently generic TCG dueling game that uses a fantastical summoning theme. By being less original themselves, they’ve given themselves power over anyone else who later tries to take the same shortcuts. They have an immense amount of power and marketability precisely because of that generic feel and relative simplicity of mechanics … and they get to play gate-keeper and force everyone else out to the edges if they want to get a word in edge-wise. Magic is a monolith.

          So … no I don’t care if Hex infringed or infringed in bad faith. That was practically speaking stupid of them and it was therefore shitty with respect to it’s effect on their customers … but I can’t say I think Magic deserves legal protection for the ridiculous position it holds not to mention the ridiculously exploitative business model it uses.

  21. Rakshall says:

    Well, Hex took all the core rules (turn stages, combat, some common mechanics like lifedrain), concepts (5 colors plus artifacts) and some basic cards (like kill that troop, give it +1/+1, etc) from Magic – there is no denying that. Still, they built some new things on top of Magic core and made it distinctive in few ways. Hasbro lawsuit (with some errors) show whats the same, but if you want to check whats different look at this article: http://hextcgpro.com/nothing-new-under-entraths-sun/

    Hex is verrry close to crossing the line but IMHO they didn’t do it since it is not 1:1 magic clone, it has unique features, and it does not try trick people that it is magic (for example by similar graphic elements as many mobile imitations do). Is DOTA2 a LOL clone and should be closed down? Is Bugtelfield clone of COD? Maybe all FPS games should be sued as they are nothing more than evolutions of Wolfenstein 3D (or even some older game). Almost all games in their specific genres share the same core basics, ui and gameplay. Evolution is as good way forward as revolution.

  22. ecbremner says:

    I can not say i am not biased. I have quite a bit of skin in the game (to the tune of $130) but here is an observation.

    Everyone who comes to this discussion without having played Hex says it is a clone everyone who comes to this who has says its iterative and new. I am in the second camp I have played it some and really felt it to be different from Magic (which i have played solidly since 1994. )

    The main problem is Hex is still in Beta and cant show all the major differences that are planned. As they describe it, the PVE element is not only different from Magic, it is something i havent seen in ANY CCG digital or otherwise. (and i play alot of them…) Its fresh and exciting and will be an absolute shame if they get sued out of existance because of this.

    To those who havent played this… if you look beyond our bias… listen to us who have played it… IT IS NOT A CLONE. period.

  23. gwathdring says:

    :\

  24. Neurotic says:

    Why is RPS always late with any news regarding MMOGs? MMORPG.com and Massively.com (to name but two) reported this two days ago. RPS/the old-skool RPS PCG staffers have always seemingly had a problem with MMOGs. And yes, I know the standard argument that RPS is a blog, and therefore not obliged to report every piece of news that comes along, but honestly, MMOGs have been a thing fo r along while now, and primarily a PC thing, so why the hesitation, reluctance, and even – ta-dam! – distain – for the genre? John’s love of Neverwinter aside, every time a bit of MMOG news comes along, the bats are most assuredly tucked up safe and sound. I say this as one who remembers Cobbett’s enthusiasm for DAoC and Southerns’ love for EQ, not to mention Ross’s ‘gasm for WoW. Wtf RPS?

    • Moraven says:

      Its a blog just sums it up about right. Go to eurogamer or polygon for coverage of main news. What good is someone reporting on a game they do not like?

      And not sure what it has to do with card games…

  25. gguillotte says:

    Another interesting angle here: that $2M in Kickstarter money is all going into legal fees or settlements now. The product they backed won’t get made.

    How do Kickstarter’s terms handle projects that can’t be delivered OR refunded due to unforeseen legal issues? And does backing a Kickstarter that’s found to violate copy/trade dress/patent rights open the backers or Kickstarter to liability? (I’d imagine not, but I’m not sure if there’s any precedent confirming it either way.)

  26. Shodex says:

    As an interesting side note, I’d like to briefly mention that when I first saw that image I thought it was that dragon from WoW. Deatheater? Death Theatre? Oh, right, Worldeater. No? … Google says Deathwing. Alright, so I thought it was Deathwing. My inability to even remember what he/she is even called probably speaks for my lack of WoW-lore knowledge, and on closer inspection I see that the dragon above is not Deathworld the Theatrical Production. But my point stands (well, more non-nonchalantly slouches as I don’t make points about stuff I’m not interested in too dedicatedly) that a lot of shit looks similar. Specifically rather generic fantasy stuff that adopts that semi-cartoon Blizzard look, that was in turn stolen from Warhammer.

    Is Hex inspired by Magic? Probably, it’s creators are probably big fans. I doubt many TCG creators just decided to make a TCG without ever actually playing and enjoying one. But if we’re going to start suing people over inspiration, then I’d like to ask any creators of fantasy work what their survival plan is. You know, when zombie Tolkien comes back from the dead to sue your ass.

    That’s a freebie by the way, to any prospective indie game developers. An open world survival game where you play a fantasy author being hunted by zombie Tolkien and lawyers. In fact, remove the fantasy authors, lawyers, and Tolkien and you might have an instant hit.

    EDIT: I should add that I have absolutely no knowledge of Hex or Magic the Gathering. So my ability to actually judge Hex as a rip-off is pretty much nil, but I will take your words for it.

  27. futabot says:

    This sucks because Wizards is clearly pre-occupied with its many not-good pet projects, core game design and managing its own sport circuit. They’ve clearly drawn a line in the sand about not compromising MTGO with their products, which makes things like Hex an impossibility if left to Wizards.

  28. Jorum says:

    If WOTC wasn’t so preoccupied with protecting it’s physical sales they could make enormous amounts of money by taking MTGO and giving it an interface which isn’t rubbish, outdated and deters new or casual players. They already have a nice interface in Duels of Planeswalkers they could adapt.
    Blizzard have just shown that a user-friendly and polished interface will draw in lots and lots of first time TCG players.

  29. HisDivineOrder says:

    I can’t wait till Dr. Pepper sues Mr. Pibb for the same thing.

    RIGHT?

  30. Universal Quitter says:

    The biggest problem with most Western IP laws is that they encourage what are essentially frivolous lawsuits, while punishing those that do not file. And by frivolous, I mean that they often do not expect to win or even fully go through with the suit. The act of filing a suit is purely a means of “defending” creative territory.

    If anything, it should be the exact opposite of how it is now, where if you take someone to court and lose, you face substantial penalties, possibly even the loss of the IP itself. Not that that would ever fly.

  31. Zorak says:

    Hex literally pitched itself from moment one during its Kickstarter as being overtly a Magic clone, the developer’s words. It has a number of very overt “reference cards” that are literally 1:1 to Magic cards, including with the same identical flavor. There’s even a card that transforms from the best Magic card in history (a Black Lotus reference called Phantasmal Lotus or something along those lines) that turns into the best WoW TCG card after being used.

    I wish Wizards would focus on improving MTGO (the client of which is really not very good), but their claims are pretty damn solid here. Cryptozooic has basically damned itself by literally calling attention to the fact that it is built heavily on Magic.

  32. Alistair Hutton says:

    No, you see their green spell “Wild Growth” is totally different from M:tG green spell “Giant Growth”. Wild Growth gives +4/+4, completely not the same as +3/+3. Not a clone.

    • malkav11 says:

      Well…yeah, it isn’t. Those sorts of differences are very meaningful in TCG design. Unless you mean to assert that any TCG ever that’s had a “temporarily buff this creature” effect is a Magic clone, in which case…well, I guess WOTC has a lot of lawsuits to file.

      • gwathdring says:

        They’re the same color, that color has the same theme, they have the same play speed, they have the same cost, and they do the same thing with a one-point difference in overall effect. There are many buffs in Magic with many different values and details, many different costs, and different play speeds and in different colors. These share, again: Green color (theme: wilderness, creatures, smashing things, plants and animals), a cost of one energy unit, the “instant”/quick-action play speed, and a symmetrical buff to both attack and defense of single creature. And they both have a name of the form [monosyllabic word] Growth. Their differences? Well, Hex has a different resource system but that’s kinda cheating–that’s not a difference in the cards that’s a difference in the games. Also one is +3/+3, one is +4/+4. One calls it Quick Action one calls it Instant. One calls it Troop one calls it Creature. The art is different.

        I don’t think that’s as meaningful a difference as you do but to each their own.

        Maybe it’s a case of cherry picking, maybe it isn’t. But I’ve seen a number of such card comparisons floating around both in the lawsuit and in online discussions about the two games. Maybe it’s cherry picking; I haven’t sorted through both respective card catalogs one card at a time. But it certainly doesn’t look good from where I’m sitting.

        I’m not on Wizard’s side here. I don’t like this. I really don’t. But it looks really, really bad from where I’m sitting. I don’t think WotC deserves this level of protection? But that’s not how these things work. Maybe it should be! In sociology we would talk about how the rules of conduct ought to be different from powerful to weak as from weak to powerful. But in copyright … we don’t. Maybe we should.

        But as we don’t … consider: if WotC were on the other side of this thing … what would people be thinking about these kinds of card comparisons?

  33. malkav11 says:

    Cryptozoic have made an official legal statement:
    https://hextcg.com/official-legal-statement/

    Pretty much what you’d expect them to say: i.e. Wizards’ claims are frivolous, they’re bullying an underdog instead of engaging in fair competition, and they’ll be fighting it.

  34. MellowKrogoth says:

    Just great, let’s kill innovation and suck out all money from a fledging company trying to make it on a Kickstarter budget. Yeah, really great laws and justice system. I was looking forwards for a CCG that would take the Magic model and innovate where Wizards failed to innovate, and here I read the opinions of tons of idiots who basically think Wizards are doing a good thing for humanity by suing. *facepalm*