Slaying Monsters of Copyright Before They Climb The Spire of Creation

Slay the Spire and Monster Slayers are both roguelike deck-building video games in which players attempt to complete a series of dungeons comprised of distinct categories of encounters, including combat, merchants, occult rituals, and campfires. Both games allow the player to equip a few items to give enduring boosts to core stats. Both games allow the player to make constrained choices about which encounter to pursue next. In both games, combat is presented in a 2D, side-view with a hand of playable cards held in the foreground; playing cards prompts simple combat animation movements depending on which kind of card is played.

Slay the Spire released on Early Access in “late 2017,” with a full release in January 2019. Monster Slayers was initially released in March 2017.

I’ve spared a lot of other details of the overlap between these games. Is this copying? Plagiarism? An infringement of intellectual property?

Probably not, no—even though it’s genuinely difficult to describe these games in a way that makes them sound very distinct from one another.

So, how similar can two video games be before there is a problem?

 

I. The Purpose and Limits of Intellectual Property (in a paragraph or two)

 

The concept of genres, generally, presents challenges for intellectual property protection. In both the arts and the sciences, most people understand and accept that there are concepts, toolsets, and constraints that tend to push creative works towards certain points in the same way that the center of a galaxy holds the planets, stars, and cosmic dust in orbit. Debate rages around some points of overlap, some outliers, some fringe data points– but people nevertheless use terms for genres and categories as though these terms have meaning. Pop songs tend to sound similar to one another, but are usually recognized as distinct from jazz, classical, or metal. First-person shooters look and feel similar to one another, but are usually recognized as distinct from real-time strategy, puzzle, or fighting games.

Law is always an effort to balance competing claims. Sometimes those claims are brought by sentient parties. Sometimes those claims are brought by reason itself. Intellectual property law, generally, is an effort to help creators (of various stripes) realize gains from their efforts, but it is quickly obvious that there must be room for many creators. Different categories of intellectual property do this in different ways. Patent law (backed by cases like Mayo and Alice) prohibits ownership on the laws of nature. Trademark law recognizes that merely describing a good or service is a very weak basis for a trademark and therefore merits very weak protective power. Copyright law understands that art draws from a common area of tools, techniques, and cultural concepts that allow art to operate and function as a means of expression and communication. Copyright law uses the term “scenes-a-faire” to describe those elements of artistic expression which are so common or fundamental that to grant copyright protection to it would do meaningful harm to the capacity of future creators.

In considering computer programs, the Supreme Court recognized that the use of a menu in a computer program could not reasonably be subjected to copyright protection; it was just a foundational part of how users used programs. The Court didn’t call computer menus “scenes-a-fair” in this ruling, unfortunately—probably because computers were relatively new devices and also because “scenes-a-fair” is historically tied to ideas in literature. I don’t think anyone else would use “scene-a-fair” to describe ideas in video game development in 2020; I’m just ahead of my time, which is to say, I’m wrong until the rest of the world catches up to me.

Video games have an established history of dealing with similar products in a small market. Games that displayed the player character’s hands and gun in the foreground and focused primarily (or exclusively) on navigating a level and shooting enemies weren’t widely called “first-person shooters” for most of the 1990’s; we called them “Doom clones,” in reference to the singular, incredibly successful game that defined the style of the genre for that decade. There is current debate over whether to make a similar linguistic shift around the use of the adjective “MetroidVania” as a descriptor of… well, it’s a matter of debate just what it describes (but the term is a reference to two popular and successful games, Metroid and Castlevania).

Slay the Spire and Monster Slayers both draw on basic, well-established genres, tropes, themes, and mechanics that are extremely unlikely to be subject to copyright protection. If campfires, dungeons, level-breaks, repeated run-throughs, block cards, or turn-based strategy could be “owned,” it would very seriously hurt the ability of other game developers to make new games.

 

II. If This Doesn’t Cross The Line, Is There a Line to Cross?

 

So, if there is room in the genre of deck-building and rogue-likes for both Slay the Spire and Monster Slayers, is there still such a thing as copyright infringement? If these games aren’t too close, is there such a thing as too close?

The easiest way to identify infringement would be the art-assets themselves. Although the design layout and placement of the art assets is similar, the art style and the actual images are very different between the two games. There are also some meaningful differences between the mechanics of the two games (Monster Slayer allows for the permanent unlocking of benefits for future run-throughs, for example). Generally, the similarities between the two games can be accounted for by noting that both games rely heavily on well-established and understood features of games and the relevant genres. Two games can be very similar without infringing on one another if both games rely heavily on widely- recognized tropes and themes without significant addition, detraction, or transformation.

 

III. Conclusion

Something that copyright and trademark law have in common: your claim to legal protection is generally better when you’re more creative and original.

What Slay the Spire can Teach About Digital Media Access Decisions

When I heard that iTunes was scheduled for destruction, I was baffled and alarmed. I have since learned that the service is being split and re-branded, in a sort of platform-mitosis. But I had several conversations in which my interlocutors were not persuaded of the merits of media ownership over streaming media. Having collected my thoughts, and faced with Google’s Stadia announcement as well as even the phantasmal threat of an iTunes closure, I hope to make a case here that media ownership reduces wildly unpredictable and uncontrollable elements of media consumption.

Slaying The Spire, With Just a Little Luck (Or a Lot of It)

Slay the Spire is a rare case in which combining a lot of ideas into a game doesn’t make the game feel chaotic and confusing. The game consists of progressing through the levels of an eponymous spire, each level consists of some encounter or event—very, very often, a combat event. Combat in this game is a resource-management card game: using a limited pool of “energy,” cards are played that either deal damage or prevent damage from being taken. Each card costs a different amount of energy, so strategic choices have to be made to optimize offense and defense. At the end of a combat, the player is presented with three choices for a new card to add to the deck. The same deck is carried through the spire, so each completed combat presents an opportunity for new cards for future encounters.

Slay the Spire gets its replay value from the unpredictable factors that permeate the game. There is randomness within the combat encounter, as a player’s options are defined by the cards that are drawn from the deck on any given turn. Then there is further randomization in the events themselves (what enemies you fight, if any, on any particular level of the Spire). Slay the Spire adds randomness in the building of the player’s deck: there are no guarantees that you will even have the option to add a certain card to your deck in a particular run of 50 levels in a Spire. (I once spent an entire run through a Spire trying to assemble a deck centered around one specific card that would greatly amplify my defensive capabilities—I never even saw that card, and inexplicably still got to the final level.) And I haven’t even discussed the role of Relics in the game, which can provide small bonuses or fundamentally alter game mechanics. All of these unpredictable, randomly-generated chances and choices give the game replay value and make it interesting, fun, and challenging. Putting choices out of a player’s control can be an element of a great game, but it’s not a part of a great day.

 

Unpredictable Elements

There are a lot of components involved in the everyday digital tasks that fill (and sometimes sustain) our lives. The device has to work properly, it has to connect to a network, the network has to function, and we also rely on the server that hosts the data we want. Anything from dropping a cell phone to a power outage to an unplugged cable somewhere in a distant city can cause the entire process to fail. It is really amazing and awe-inspiring that the entire system works as well as it does. Of course, sometimes, something goes wrong.

For purposes of today’s discussion, I think it’s helpful to divide the possible problems into two categories: those in the user’s control, and those outside of the user’s control. So, whether I charge my cell phone, whether I spill water on my computer, whether I use a program correctly—those are, practically speaking, in the domain of the user. However, the city’s electrical power grid is not something a user can single-handedly maintain or repair. Similarly, the user cannot control conditions at a distant server farm, or control the telecommunications network that links the user to those servers.

This, it seems, is where I diverge from so much of my demographic cohort. I don’t want my access to media to rely on these two additional components (telecommunications and data-holding servers). Maybe I would feel differently if I had better experiences, but I have repeatedly been unable to play games or watch movies because at least one of these components has failed. I have encountered this setback for over a decade- in some cases, I have experienced it daily, over the course of months. In contrast, when I think back to those halcyon days in which I owned my media, the only obstacle was a scratched DVD or a VHS tape that was just too-well-loved (we all have a childhood story of the tape that we watched so many times that the playback became warped and distorted).

Conclusion

The unpredictable nature of the available choices in Slay the Spire keeps an otherwise repetitive game novel and engaging. By forcing the player to consider various probabilities and possibilities, the game creates challenge and the kind of frustration that invites a player to learn, try again, and do better next time. I cannot understand the kind of person who willingly invites this kind of challenge and frustration into the process of trying to listen to music or watch a movie. Conversely, if a player had control over any of these random elements in Slay the Spire, the game would be easier. For both Slay the Spire and media access, generally, the same rule applies: the more control one has over the variables, the less challenging the experience.

There are other issues implicated in this debate that I didn’t touch on: the data privacy questions that come with streaming and DRM protections, the reasonable efforts of artists and publishers to protect their copyrights and profit from their works, the legal status of digital goods, etc. Those issues deserve consideration (which is why I have written about them before and will do so again), but I wanted to keep my focus narrow for the sake of clarity. My perspective on this question can be distilled to one personal point: I do not feel that there is evidence to support the claim that US telecommunications networks are more reliable than I am. I simply trust myself more than I trust those corporations, their services, and their infrastructure. Likewise, I trust myself more than I trust the media companies that provide the platforms and media. This is true on a day-to-day basis (for telecom), and it is true for long-term planning (media providers make no promises that they will last longer than my interest in the media they provide).

I can trust electricity providers—they have proven themselves. Power outages certainly do occur, but their frequency, cause, and duration are within acceptable parameters.* Maybe it comes down to what inconveniences, unknowns, and probabilities we are willing to accept. I can live in a world where my electricity is out for maybe 30 minutes per year. I’m not excited to choose a world in which I can access my own leisure at the leisure of so many other people.

 

 

 

 

*The fact that power failures necessarily cause network failures would be a meaningful riposte if my point were strictly confined to unadjusted uptime comparisons.