Welcome to a very special Friday-edition of What We Learned! Normally we take a week’s worth of Magic community news, pick the best of the best, and wrap it up for you with a pretty bow on Mondays. However, this week a piece of breaking news warranted Hipsters of the Coast’s first ever special edition report. On Wednesday, Wizards filed a complaint suing another game company for copyright infringement on Magic. We’ll take a quick look at what went down, the widespread community response, and then share an interview with local NYC game designer Anthony Conta of Urban Island Games.

Law and Order: Game Design Edition

On Wednesday, Wizards of the Coast issued an official statement announcing that they had filed a complaint against Cryptozoic Entertainment and Hex Entertainment. The lawsuit, filed in the Western District of Washington state, claims willful infringement of intellectual property rights. From the statement:

Hasbro and Wizards of the Coast vigorously protect our intellectual property. This infringement suit against Cryptozoic demonstrates that while we appreciate a robust and thriving trading card game industry, we will not permit the misappropriation of our intellectual property. We attempted to resolve this issue, but Cryptozoic was unwilling to settle the matter.
-Barbara Finigan, Senior Vice President and General Counsel of Hasbro

While many of us are familiar with the kind of Cease & Desist letters that Wizards has sent to the owners of programs like Cockatrice and Magic Workstation, a full lawsuit claiming “copyright, patent, and trade dress infringement” is far less common.

So What’s the Beef?

A case like this needs a qualified judge

If you want, feel free to go read the entire lawsuit/complaint. It’s full of legalese and I’m not a lawyer. Thankfully, Douglas Linn is both a lawyer and a director of Quiet Speculation. We’re big fans of Quiet Spec and Linn was kind enough to translate the lawsuit to the best of his ability. Now, it’s still very long, but it’s much easier to understand. I highly recommend reading one or both of these pieces. I won’t be going into the details of the lawsuit here, since Linn did such a great job already.

Community Reaction

Reddit on a typical Wednesday evening

Litigation doesn’t usually get a lot of attention from the common folk, but for various reasons this immediately became a very hot topic. Shortly after the press release by Wizards, both the Magic Subreddit and the Hex Subreddit began discussions in earnest. Several game design subreddits quickly picked up the discussion as well.

It wasn’t too surprising that forums dedicated to the two games in question were full of talk on the lawsuit. What was surprising was the list of news outlets that picked up on the situation. Polygon, Kotaku, The Escapist, and PCGamesN all picked up the news. In fact, just over a month ago, PCGamesN was talking about the similarities. It seems that Cryptozoic’s belief at the time was that being a digital game protected it from Wizards’ claims.

Interview with Anthony Conta

To get some perspective on the issue we reached out to local New York City-based game designer Anthony Conta of Urban Island Games. Conta is a long-time Magic player and designed the very successful Funemployed which was backed on Kickstarter and is now available on Amazon. We talked about his thoughts on the validity of Wizards’ claims and the impact to the rest of the card game industry through his perspective as a small game designer.

Hipsters of the Coast: What was your first reaction to the news?

Anthony Conta: The news broke yesterday evening, and I found out about it from someone I follow on Twitter who wasn’t even connected to the Magic community. So, when I saw the announcement I knew it was a big deal. People recognized just how big a deal it is by its reach outside the industry. I knew they had a wildly successful Kickstarter, raising 700% of what they asked for. Getting $2.2M for your Kickstarter idea is pretty strong.

HotC: Do you think that Wizards’ complaint has merit?

AC: I’m not a lawyer, but I worked in legal for about three years analyzing and writing those sort of documents. But, I’m not a legal expert. What it comes down to, basically, is that Wizards thinks Cryptozoic has copied Magic: the Gathering and they’ve illustrated in a very legible table all the things they believe mechanically speaking, from a game design perspective, that Hex has copied. They draw comparisons to phases, to booster packs, and even to Duels of the Planeswalkers. It’s very clear what Wizards thinks has been breached. I spent ten minutes watching their introductory videos where they go through a game, and it is hard to argue that it’s not very similar to Magic.

HotC: What are the similarities that stood out to you?

AC: You have mana; you have two different types of cards effectively in troops and actions, and then you have resources which are very similar to lands. Your spells are very similar to instants, sorceries, enchantments, and they even have an artifact type. From a game design perspective I think it’s very similar from what I’ve seen in the tutorial video. There are MMO elements that I’ve heard of but I have not seen them. There’s also an avatar you play as which is very different from Magic.

What’s really telling is that Cryptozoic has had members of their own community highlight the similarities to Magic on their own forums. There are posts that say how similar Magic is to Hex. It’s also very telling that the one article that Wizards references in the complaint has visual evidence of the similarities as well. They illustrate cards that are the same, and mechanics that are the same. For example, there is a visual representation of Pyrite Spellbomb next to a Hex card that does exactly the same thing. There’s also a carbon copy of Divination and Giant Growth that they call Wild Growth.

HotC: Do you think the game was designed as a clone of Magic or did Cryptozoic just end up in the same place mechanically?

AC: I can’t imagine that any company would try to carbon copy something so heavily patented. A classic example in game design is that you can’t say “tapping” in card game design. You can turn your cards sideways but you can’t call it “tapping.” You can call it exhausting, readying, depleting, whatever you want but you can’t call it “tapping.” So the fact that Wizards has a bunch of these patents on mechanics and words is known even to fledgling designers. They know to avoid it and Cryptozoic would have been aware of it.

HotC: Everyone has found ways around these patents in the past however. Don’t plenty of other games take mechanics from Magic and make them their own?

AC: The key word is unique. You can take things from other games and the legal means of stopping people make it really difficult to prevent. I think that’s fine, I come up with an idea and you borrow it or improve upon it, that’s not a big deal. But when you take a lot of the things I’ve come up with and put them together and call it your own, that’s a pretty big deal. So borrowing the idea of tapping, mechanically, is not the worst. Borrowing the idea of troops with evasion or factions or mana as a resource are not bad elements to borrow on their own. But, when you put them all together it becomes a big deal.

HotC: Where is the critical mass? Some games take a lot of elements from Magic. One game that comes up frequently in this vein is Hearthstone. What do you think makes Hearthstone similar to and different enough from Magic that Wizards isn’t suing Blizzard.

AC: Hearthstone, and similarly the World of Warcraft game by Cryptozoic, were around for a long time and copy a good amount of stuff. One of the things that makes Hearthstone so different is that you don’t have mana cards. You just gain a mana crystal every turn. Also, you don’t have factions like in Magic. There’s no swamp, or forest, or mountain. You have these characters and build your deck with generic cards, which are essentially colorless, and then faction cards which are unique to the faction. Each faction plays differently but there’s no possibility of multi-color.

Also combat is very different. You choose who you attack and there’s no blocking, which is because the game is asynchronous so that it can be played on tablets. You attack whoever you want and they can’t defend. So even though the elements are similar in that there’s mana and creatures, functionally and game design-wise they couldn’t be more different.

HotC: Plenty of games have common design elements but when does cloning mechanics become a problem? How much is too much?

AC: Hearthstone has a card that is Divination. It costs three mana and it draws two cards. You can borrow ideas, but you can’t borrow a critical mass of ideas. You can make this comparison between a lot of games. Apples to Apples and Cards Against Humanity. Sorry and Parcheesi. There’s a lot of games, even first person shooters like Call of Duty, Farcry, and Halo, that feel similar, and that’s fine. But you can’t just re-skin a game. It’s not like I can take the Farcry engine and make a first person shooter. This is why patents exist, and Wizards has pages upon pages of patents.

HotC: Do you think Hex is an isolated case or is this a more common issue than we know?

AC: The only arena where re-skins happen frequently is with mobile gaming. Mobile has a ton of re-skin games. Three, 2048, Candy Crush, Farmville, casino games, etc. It’s one of the biggest problems on the platform. It’s harder to re-skin a card game because it isn’t really an engine it’s an interaction. You can’t just put comic book characters in a Magic clone. It would be pretty obvious and you’d have to print and distribute it.

HotC: Are there any concerns for Kickstarter?

AC: They’re not legally responsible and they make it clear that the covenant is between the project creator and the project backer. Though it’s certainly not good for the site. It’s important to note that the Kickstarter responsibilities here are pretty strong for Cryptozoic. They were funded for $2.5M and Wizards is asking for a lot in damages. If they pay to Wizards, they also may need to pay out to their backers if they don’t deliver the game. This all depends on another lawsuit that was filed in Washington state where there was a Kickstarter for a card game that was never delivered. So the Washington General Attorney said that they needed to deliver on their promise or refund backers. So it’s almost like they [Cryptozoic] will get hit twice if they have to pay Wizards and pay back their backers and not even receive actual profits from the game they’ve been developing.

HotC: Do you think it will be a concern for future developers on Kickstarter?

AC: I don’t think it will stop people from funding or asking for money. It will just make consumers more reticent to back certain projects. It’s your choice to fund a Kickstarter, but people will start to be more careful. You’ll need to really differentiate your games.

HotC: Part of putting a Kickstarter together is presenting your risks to the consumers. Do you think people knew about this risk?

AC: One of those message board posts was dated during the game, so people were aware of the similarities. If they thought Wizards was going to sue this company they wouldn’t have backed it though. Why fund something that will fail? They probably thought that it was very similar and that they like Magic so they’ll like Hex. Once they were funded they lost a bit of their game design flexibility. The backers paid for something that was promised and that can’t change. Maybe they had these similarities and then Wizards approached them to make changes. Cryptozoic possibly can’t make those changes because of what was promised to the backers. They’re bound by the promise that they made.

HotC: Are you concerned about a larger company like Wizards/Hasbro going after smaller game design companies legally?

AC: There are too many small fish for there to be concern. It’s not worth their time to go after a small publisher unless they’re religiously defending their product. As long as you’re not copying a game then you’ll be fine. And not just copying any game, but you have to copy a great game. There’s just too many developers to chase. Cryptozoic raised $2.5M from Kickstarter, so it was a well-known idea, and Wizards is very protective of Magic, which is Hasbro’s biggest game. If someone copied SolForge, I don’t think Stone Blade Entertainment is gonna go after them. They’ll try, but it may not be a formal complaint.

But, most people make games because they like to make games.

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