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Most GameDev.net readers are familiar with the Hasbro copyright infringement suit against several game developers. Recently, most of the defendants involved decided to settle. Diana Gruber sat down with Dana Dominiak of Webfoot Games, one of the companies that settled, to find out what really happened, and how the suit affects developers.
I’m going to ask some tough questions, because I think that’s what our readers are interested in hearing answered.
No problem. I understand the types of questions people might have, and I’m very anxious to tell our side of this story. I think the developers have been unfairly portrayed in this lawsuit.
How did you feel when you first heard about the lawsuit?
We were in total disbelief. Out of all the thousands of retro games released over the past 20 years, we thought ours were some of the most different and original games! We just couldn’t understand why Hasbro wasn’t concerned about the thousands of exact clones, but were upset over our new 3D games. We believe our real problem was that we were successful competitors to Hasbro’s games, so they sued us instead of the true infringers.
How has Webfoot been unfairly portrayed?
Well, people assume Webfoot’s games were near clones of the Hasbro games. The fact is, our games were made before Hasbro was in the video game business. Our games came first. Webfoot’s games are new innovative 3D games with some similar gameplay rules to the classic games. Hasbro’s 3D retro games came after Webfoot’s allegedly "infringing" games had been selling for a couple years! I bet many people don’t realize that.
Tom Dussenbery made it sound like we saw Hasbro’s new Tetris and Pacman games and decided to copy them. Nothing is farther from the truth. We believe Hasbro got into the retro business because they saw companies like eGames and Webfoot had been successfully surviving in retro for many years. So Hasbro decided to get into the game quite late with their purchase of Atari, five years after Webfoot had already been making retro games. Webfoot was making retro games for 7 years before Hasbro sued us.
So are you saying you feel like you should sue Hasbro?
Of course not. I think companies should be free to innovate and improve, as long as they don’t copy. The point is, copyright law encourages the improvement of a creative work, and I personally feel flattered that some of our game ideas are showing up in Hasbro’s products, coincidence or not.
So Webfoot was into retro before Hasbro? How can they sue you?
Because they bought Atari, even though it was after the fact. Atari owns Pacman. Well, technically Namco owns Pacman, but they licensed it to Atari.
Why isn’t Namco suing you? Don’t you need all owners of a property in a certain geographical area to join in on the lawsuit? How can Hasbro sue without Namco?
Some have the legal opinion that Hasbro had no right to sue without involving Namco in the lawsuit. I don’t know if Namco declined on purpose or if Hasbro just assumed we’d give up before it became an issue. It was our legal opinion that Hasbro was on very shaky grounds with respect to some ownership issues. But then again, Hasbro has a lot of money to beat up on us small guys, so realistically, whether they had a right to sue or not, there wasn’t much we could do. Unfortunately the case didn’t proceed far enough to determine the ownership issue.
Because it would cost us hundreds of thousands of dollars to pursue these kinds of ownership issues, taking a gamble that Namco wouldn’t join in after all. That’s too risky for us. Maybe Hasbro shouldn’t have been allowed to file a lawsuit without Namco, but they did. Who’s going to do something about it?
Did you infringe any of Hasbro’s copyrights?
In my opinion, obviously no, or we would have settled immediately instead of fighting for over 6 months. The question of infringement isn’t black or white. It’s a very grayscale issue and a real trial by jury would be needed to determine the outcome. We’ve obviously asked many attorneys their opinions before we decided to litigate. Attorneys who are intellectual property (IP) experts. We also made sure the attorneys actually played the games, as we’ve noticed people love to give their opinions whether they’ve seen the games or not! The attorney with the most IP experience said that because patents were not involved (and if there were patents they’d be expired by now), most likely Webfoot would prevail at trail. Other attorneys said it’s more of a gamble than that, judges and juries are too unpredictable, and others said we ventured too far into the gray area to be certain. The most experienced attorney thought Hasbro was seeking patent-like protection under copyright law, and most likely Webfoot would prevail at trial and possibly even on summary judgement.
So if you’re so sure of your innocence, why not fight?
It would have cost us upwards of $250,000 to fight. The 10+ games of ours in this lawsuit combined wouldn’t make that much money in the next 10 years. Simple math.
Why do you make these games, if they don’t earn that much money?
We love retro games. I made a lot more money as a computer scientist designing energy analysis systems. Everyone else here at Webfoot could make more money as consultants or programmers in other areas. We do this work because we love it.
So it wasn’t greed that drove you to make retro games?
(Laughing). If retro made THAT much money, we’d gladly foot the $250,00 bill to litigate this case. We made the games to have fun and to learn. Period.
But your games are similar to the Hasbro games, how do you explain that?
Our games were made before Hasbro made any video games, so we definitely didn’t mimic Hasbro. If anything, we made games REMOTELY similar in gameplay rules to very old games, some not even invented by Atari. Remember, we started making 3D retro before Hasbro Interactive existed. I think Hasbro saw all the 3D retro titles, noticed sales were on the rise, and THEN they gobbled up Atari hoping to copy other’s (like eGames) efforts. Too bad for Hasbro they didn’t realize retro isn’t a billion dollar business until they started losing $53 million a year. I wonder if those huge loses put pressure on management to lay blame elsewhere and that’s why the lawsuits were filed? Because I could have told Hasbro 7 years ago that you make retro games for love, not profit.
You say you made these games for love and not for profit, some will find that hard to believe.
It’s true. I think most other retro developers, usually small and starving companies, would agree. Our first 3D retro title, 3D Maze Man, didn’t even have a publisher when we made it, we were going to release it as shareware! We started making it because we were disappointed with many new big titles. They were too complicated and not as fun to play as the games we remembered from our childhood. First person shooters are, at least to me, kinda mindless and not very fun. Others disagree and say FPS are fun and Pacman is mindless. It’s just an opinion. We just love retro games, we grew up with them.
So you revived games from your childhood? But you innovated, or copied?
We noticed hundreds of PACMAN clones out there, in fact, we noticed about 18 years of clones. Heck, I’ve played most of them, starting with the Commodore 64, moving up to the Apple, Amiga, and so on. We decided not to make a clone, but to make a game with similar gameplay style, but lots of new and innovative stuff. Our game was very different from PACMAN compared to all the others, that’s why we were blown away that we were sued for copyright infringement while the exact copies are still out there.
Why didn’t/isn’t Hasbro suing all those other exact clones?
I don’t know. Perhaps you should ask Hasbro.
If Hasbro was only targeting eGames, why did they sue all these developers?
It’s our opinion that Hasbro was hoping to find some smoking gun discovery documents from us. Little did their attorneys know that we don’t create design documents and have long meetings and write big marketing studies, we instead use that time to write the games.
But let’s face it, you copied the PACMAN character and ghosts.
No we did not copy their characters. In retrospect, had we known Hasbro was going to buy Atari after we made our games and start enforcing IP rights that had been abandoned for 20 years, yes, we made a business mistake. But there’s a big distinction here, all our artwork, programming, music, and new gameplay rules are original. If people think our games are cheap clones, that’s the Hasbro propaganda machine in full motion. About 5 years ago, we honestly thought the big guys had given up on retro. Since they weren’t making these games, we decided we’d do it, because we just loved these games. We wanted to play these games, that’s why we made them. Unfortunately, eGames started to grow a little too quickly, and Hasbro took notice.
So your 3D retro games helped grow eGames? No wonder Hasbro was upset.
No, not our games. I mean, our games weren’t responsible for eGames’ success. eGames had some huge successes in the non-retro area, including Mahjong and some game packs. I think all the sales numbers are public, so I can’t believe Hasbro made the mistake that their missing $53 million was due to little old 3D Maze Man and the eGames retro titles. Look up the numbers and you’ll see the retro sales were quite insignificant.
How do you explain your 3D TetriMania game? Isn’t it another rip-off.
No, it’s very different from Tetris. We asked eGames what game type should we make next? They said their 2D TetriMania game was their best-seller, so we decided to make a 3D version of this kind of game style. None of the developers on the 3D Tetrimania project had even played TETRIS before!
What about the name TetriMania? Isn’t that trademark infringement?
TetriMania is eGames' trademark, not Webfoot’s. Most likely we got caught up in this whole lawsuit because of that one game, 3D TetriMania, and Elorg’s and eGames' battle over the TetriMania trademark.
How is that?
I heard that Henk Rogers of Elorg threatened eGames about 2 or 3 years ago that he was going to find a big company to license Tetris from him, and then get this company to sue eGames’ pants off. I sure wish I’d have known about this before we set out to make a 3D version of TetriMania!
So Henk Rogers started this whole mess?
That’s the buzz on the street. It looks like he actually made a threat and then came through with it three years later.
Why did you settle this lawsuit?
First, these games weren’t earning enough money to justify the legal bills. Also, Hasbro started throwing in lots of our other games that clearly we would have won at trial and no sane person would have considered infringing, as a way of putting pressure on us. They even sued us over a game that never existed!
Are you serious? How they can sue over a non-existent game?
Because it costs money to defend yourself against any accusation, even untrue ones. 3D Geo Mania was never even made. They sued us over a web page description of it (we had meant to sell it in the future, but never got around to it because we were so busy). In my opinion Hasbro was playing dirty and they knew they’d get away with it.
That’s simply amazing to me that they’d sue you over a game that never existed!
Actually, our attorneys thought it was hilarious. We were imaging explaining it to the judge during summary judgement. We’re pretty sure we’d have won on that issue [laughing].
So what are you going to do with 3D Geo Mania now?
I guess we’ll stop never selling it. We’ll take all three billion invisible copies and bury them in a big non-existent invisible garbage dump.
Who came out ahead in this lawsuit?
Well, the terms of the settlement agreement are public except for an undisclosed payment amount. We simply agreed to stop selling past and current versions of the games mentioned in the lawsuit.
What can you tell me about the undisclosed payment?
Nothing. I simply can’t talk about it.
Did the payment harm Webfoot?
I can not comment on that part of the settlement agreement in any way.
Did you have to agree never to make these kinds of games again?
No. That was not part of the settlement agreement. In fact, we are not even restricted from releasing sequels or re-makes of the games in the lawsuit! It’s funny how Hasbro is touting this settlement agreement as a complete victory, because they really gained very little by it, while accumulating monstrous legal bills in the process. The only thing that happened is a bunch of 2 and 3 year old games that were about to be pulled off the shelves anyway will be pulled from the shelves by mutual agreement. Is that really a victory for Hasbro?
So that sounds like a big victory for the small developer?
Well, Hasbro was not successful in trying to corner the market on retro games. That’s the good news. I certainly considered this settlement too good to turn down for Webfoot, although continuing to fight would have made us mentally feel good because it’s the principle that matters.
Which games in this lawsuit do you feel were the most unfairly accused?
Obviously 3D Geo Mania, because it doesn’t exist! I’d also have to say that one of our attorneys stared at 3D Frog Man in disbelief and repeated over and over "these games do not infringe under copyright law, what is Hasbro doing?".
What will you do now?
Retro was a great learning experience for us. I think most game developers start out with small simple games and work their way up. Quake probably wasn’t John Carmack’s first program. We certainly didn’t do it because it was making us rich, it clearly wasn’t. It was a fun way to learn. Ironically, just like eGames, we had actually stopped doing retro before Hasbro sued us! Our recent titles include Safari Kongo, a modern 3D arcade game, 3D Helicopter Coyote Hunter, a full 3D hunting game, and Super Huey III, a helicopter simulator. Oh wait! We had also just finished Pinball, Mahjong, Chess, Checkers and a whole line of non-retro games. Not only did we get retro out of our system, but we moved on to two different things. And older classic games like Chess and Pinball, because they sell so much better than retro. Hasbro could have saved themselves half a million dollars by just being a little patient.
How are other developers affected?
The majority of developers aren’t affected at all. Only mom ‘n pop operations who make retro games for budget publishers. Before this lawsuit, little companies had a chance at getting their retro games published on value game packs and such. Now there are going to be far less opportunity for them, which is a shame. But that only affects a tiny segment of smaller developers.
Was your reputation hurt because of this lawsuit?
No. Just the opposite, it put Webfoot’s name on the map. No one knew who we were before. Now we’re much more recognized. People don’t know it’s because of the lawsuit either, they just are now aware we exist. We also were able to put together several new deals as a direct result of the contacts gained from this lawsuit. Stay posted for the announcements this fall.
What about Hasbro’s reputation?
I think Hasbro’s reputation was hurt in all this, not because of the lawsuit but because word seemed to get out about how Hasbro buys companies to acquire name brands and then lays off developers. That sure didn’t help Hasbro to have the development community buzzing about the Micropose and other layoffs. Then world got out about how the game Monopoly is really in the public domain and the patent was fraudulently filed, and how Hasbro sued www.clue.com and www.ms-monopoly.com over domain names that had nothing to do with Hasbro’s board games. Hasbro really didn’t come out looking like a very friendly bunch of folks. This type of publicity wouldn’t have spread so far and wide if it wasn’t for this lawsuit. In the end, I think the lawsuit hurt a lot of people, developers and Hasbro included. Only the lawyers came out ahead.
What about the green ribbon campaign and the developer boycott?
While we’re flattered that so many people tried to help, I’m sure if you offered a developer a publishing deal, they’d take it, no matter if it were with Hasbro or not. Hasbro will always find developers. They may have more trouble finding the best developers, but I think that judging from their current games, they could care less about that.
Has this lawsuit affected your attitude in any way?
It’s only made us resolved to fight back extremely hard in arenas where we have the upper-hand. In technology and creativity. We can make games better, faster, and more economically than Hasbro can dream of. We’ll be cranking out many new innovate products in the next couple years, many now in direct competition with Hasbro’s products. We wouldn’t be so resolved to fight had they not unfairly accused us of copyright infringement, in my opinion. The only way they’ll be able to compete is with lawsuits.
Do you have any last words for Hasbro?
Why not spend your money on trying to improve and innovate your software instead of suing small developers? That way, the consumers always win. Games would be innovated and advanced, the video game economy would grow, and everyone would benefit.
What are your plans for the future?
To continue building one amazing software company. We have incredible new 3D engines, portability to Mac, PSX, and Linux, new networked games, plus dozens of games in development. We’re just getting warned up!
Any last words?
We wish good luck to André LaMothe at Xtreme Games, who will continue to fight this lawsuit. He has our support and cooperation, and we’ll be contributing to his legal fund. Thanks André for risking it all to defend small developers everywhere.
Also, everyone at Webfoot is so grateful to all the other developers who offered support and encouragement during these trying times. We were very happy and surprised to see a green ribbon campaign and a boycott organized for all us defendants! Amazing. It really helped us mentally pull-through this. Thanks so much and it’s not over as long as André is in it.