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Can We Panic Now? - Currents

InstaTrentInstaTrent OpinionatorRPGamer Staff
edited May 2013 in Latest Updates
A new month, a new Currents. In this issue, something is terribly wrong with the video game industry, Sega and Gearbox face class action, the Wii U struggles, Scribblenauts developer sued over internet cats, and we introduce a new section.

CURRENTS
"To tell you the truth, I like drinking tea and eating fresh vegetables, but that doesn't fit with my super-cool attitude. I guess I have to accept this about myself."

Comments

  • PawsPaws BEARSONA RPGamer Staff
    edited May 2013
    "Something's Terribly Wrong"
    While I think all the big budget stuff is ridiculous, the concept of a stable job in the video game industry has always been something of a myth. As I start dealing more and more with people who have 10, 15, 20 years of video game development under their belt, most rattle off anywhere from two to six studios they've worked for. You didn't see it before because the industry wasn't terribly transparent. Ever hear of Smart Bomb? I'd imagine most people haven't, but they've developed more than a dozen games for companies including Bamco and Microsoft. They left console development and went into a new field because the "mid range tier titles," budgeted at 3-5 million, have dried up for now. Aaaand we're back to big budget crazy stuff, a full circle.

    "Aliens Sued"
    I opted out of the Sony class action suit that settled recently. Why? It offered me a choice of one of the games they'd already offered for free (between Chris and I, we own all the interesting ones), 3 months of PS+ (which I won't be eligible for as of next week, since I'll be in the US), and 9$ worth of PSHome wallpapers. Woohoo!

    "WiiU Struggle"
    Nintendo was smoking some great drugs when they set the WiiU's goal so high. The Wii system was sold to A TON of "first and only" buyers. My parents own a Wii -- the last time they bought a system was the NES & Genesis for us kids (we've bought our own since then.)

    "Versus 13 PS4"
    Likelihood? Seems plausible. Sony seems to be encouraging devs to push late-term PS3 launches to the PS4, which is much easier to develop for. Now that companies can discuss it, we're hearing in hushed tones they've had dev kits for something like to two years now. Even before the conference reveal I chatted with a studio that provides development tools for big companies like EA and they inadvertently let slip they started selling PS4-compatible programs as early as a year ago (I'll have to find my notes to see if I got an exact time frame there.)
  • TaikaTaika Member Full Members
    edited May 2013
    I am of the opinion that the creative destruction of a free market is a beneficial thing in the long run. Not only are they are spending too much to make games, and they aren't half as fun or creative as they were in the 90s. Inventive games like XCOM, Covert Action and Privateer were awesome, and Japanese RPGs used to make my world turn... but the unoriginal, cookie cutter games being shoveled out today evoke little wonder or interest. When their products no longer sell and customers demonstrate their lack of interest, they'll be forced to economize, reduce inefficiency, create new business models (or make way for those who will) and perhaps finally go back to making games that delight core audiences instead of aiming for generic mass appeal... and my hope is that the fans will benefit and we'll enjoy a new golden age of gaming.

    I think Chris Roberts is leading the way with Star Citizen - the biggest crowd funded game in history (9.2 million and counting,) but with a plan to push hardware to its limits, exceed existing detail, yet for a fraction of the cost of most AAA games. If he's successful, the industry will be changed forever, and more responsive to the fans. I just wish I saw some Japanese developers moving in that direction... we could use a true rebirth (and no cheap spinoffs) of fan favorites like Suikoden, Xenogears, Valkyrie Profile, Grandia and the like. Even FF needs the fun brought back. (Although Type O did sound pretty fun, doesn't seem like we'll get to play it over here)
  • BalanceBalance Member Full Members
    edited May 2013
    Well, I love ya Rpgamer staff so much I need to check out all the threads. Good work Trentster! Makes me aware of the gaming world, although I listen to "Giant Bomb" podcast too. To be honest I've realised I'm a very niche gamer. FPS? no, Racing? no, Platformers?, no, Arty games like "Journey"? no, Shoot-em up? no, sports ? no Puzzle games? - sorta, even I have played Candy Crush- reached about world 30. Angry birds? Yeah an unquestionably great game. MMORPGS? can't seem to get into them anymore.
    Roleplaying games-Diablo clones, Turn based strategy, Turn based dungeon crawler. BUT... I think I can get into puzzle games, especially of the bejewelled, super puyo puyo style, tetrisy.
    Say something relevant about the Currents column? Erm, The Executives are doing their usual bottom line breadearner crap, reminds me of those darn politicians, they need to get back in touch with the real people and gamers that consume their product- AAA shmell, people have always looked for a game which is fun and fulfills their need for distraction, if it is an iteration of a beloved Franchise that doesn't meanyou ouhgt to be complacent, it means that you have some idea of what they like and enjoy- it doesn't mean they will necessarily fork over cash for a mere glorified expansion pack- they deserve to have something to get excited about. It's time game companies don't patronise a savvier and aging but aguably GROWING market.
    There is evidence of this dissatisfaction with game companies, some of which are alienating their customers in the growing numbers of kickstarters that cater to what fans really want. Those big companies should get a wake up call, I agree with Taika that the shake-up may be good for the industry in the long run.
  • DravDrav A Serious Man Full Members
    edited May 2013
    Thief 4 sounds like typically development hell scenario, pretty much what I thought was happening with Deus Ex 3 until they actually started posting videos. I think it'll probably be released — if Square Enix is suddenly doing previews for the game despite it supposedly being a shambles then that probably means they're desperate to make at least some money back on 5 years of development — but it'll probably be in a heavily stripped-down state that captures nothing of what made the other Thief games good. Plus based on what's been shown of the game so far it sounds like it could potentially end up being way more like Dishonored than Thief anyway.

    Personally... I'm not all that fussed. I like Thief well enough (well, the first one, which is the only one I've played), but I'd rather play a game that gives me the choice between being stealthy or aggressive instead of forcing a particular playstyle. Same reason I got bored with both Bioshock games really. As long as the next Deus Ex game is still on track then Eidos is still cool by me.
  • TG BarighmTG Barighm Member Full Members
    edited May 2013
    "Something's Terribly Wrong"

    Meh. I told you so. Years ago. Go ahead, check my post archive.

    As for the blame-game, well, I'll throw in my hand and put the blame on marketers. They're not trying to learn from their mistakes. They're too busy blaming "market forces" and "female protagonists" and everything but themselves for their failures.
    No problem for Activision. Hate them all you want, but they know how to build a franchise. Do they milk CoD? Sure, but they also built Skylanders, a platformer/variety game I believe. They also built Guitar Hero, a game part of a genre that was so small you couldn't even call it niche until then. Activision can do it. No reason why the rest of the gaming world can't.


    I don't have much to say about the rest. The Wii U thing is a case of "casuals giveth and taketh away", but until the big games come out you can't really judge. Sega should have tried harder to get Gearbox's rear in gear or moved the game to someone else if they couldn't manage it. They're as much to blame as everyone else. As for the meme...well, if you don't trademark it, expect to lose it.

    **For anyone still upset about the Colonial Marines fiasco, just go play Far Cry: Blood Dragon. It's all the 80's cheese you can want, is much better, costs much less, and features one of the Aliens actors.
  • omegabyteomegabyte He's just this guy, you know? RPGamer Staff
    edited May 2013
    As for the blame-game, well, I'll throw in my hand and put the blame on marketers. They're not trying to learn from their mistakes. They're too busy blaming "market forces" and "female protagonists" and everything but themselves for their failures.
    No problem for Activision. Hate them all you want, but they know how to build a franchise. Do they milk CoD? Sure, but they also built Skylanders, a platformer/variety game I believe. They also built Guitar Hero, a game part of a genre that was so small you couldn't even call it niche until then. Activision can do it. No reason why the rest of the gaming world can't.
    I'll give you Skylanders, but Activision did not "build" Guitar Hero. They BOUGHT Guitar Hero. The original creators of the game, Harmonix, then went on to produce the infinitely superior Rock Band with EA while Activision milked the crap out of theirs until the entire genre died.
    "It's okay to fail as long as you learn that you failed!" - Neptune, Hyperdimension Neptunia Victory
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  • PawsPaws BEARSONA RPGamer Staff
    edited May 2013
    Also, Activision is the publisher of Skylanders. Toys for Bob and/or Vicarious Visions developed the games, depending which platform you're playing on.
  • TG BarighmTG Barighm Member Full Members
    edited May 2013
    but Activision did not "build" Guitar Hero. They BOUGHT Guitar Hero.

    Also, Activision is the publisher of Skylanders. Toys for Bob and/or Vicarious Visions developed the games, depending which platform you're playing on.
    You two are confusing building the brand for development. I didn't say a word about who developed the games. I'm talking about building the brand. That's a job for marketing and that onus falls upon the publisher, although I'm sure there are some cases where the devs have to do some of the work. Buying Guitar Hero, as opposed to developing it from the ground up, doesn't change the fact Activision helped make it become as big as it did...which was my ACTUAL point with regards to Activision knowing how to make a game sell.

    Please keep the replies within context, kay?
    *Actually, don't bother replying at all. I already lost interest, I just happened to click this topic by accident.
  • PawsPaws BEARSONA RPGamer Staff
    edited May 2013
    Little snarky there, but you also happen to be wrong. Publishers don't always shoulder the marketing side (EA has been known for trying to dodge it while working with dev teams, and Nintendo regularly handles all the PR for SE games they're publishing), and I know both Vicarious and Harmonix have(/had) their own marketing. Also, marketing and PR are two different things, and shouldn't be lumped into one category. Personally I think building a brand also includes not driving it into the ground until dead, and that's already done with GH and if we continue to see 11 month cycles with Skylanders, it's only got another year, maybe two left.
  • TG BarighmTG Barighm Member Full Members
    edited May 2013
    Little snarky there, but you also happen to be wrong.
    Well, you two did ignore the context of my reply for the sake of playing Captain Corrector, and that's pretty snarky too.
    Publishers don't always shoulder the marketing side
    That's what I said:
    although I'm sure there are some cases where the devs have to do some of the work.
  • PawsPaws BEARSONA RPGamer Staff
    edited May 2013
    It was nodding to Adriaan's reply, and correcting what he said wasn't intended snarky; I'm not sure why you presumed malicious intent. You'd be surprised how many people are not aware Activision's role in Skylanders seems to largely monetary -- though some of my information in that regard comes from a former employee, so I'd take it with some grain of salt. Sorry I missed part of your post, was it something you edited in after? I didn't see it initially. Either way, I don't imagine we'll agree on Acti's due credit :P
  • TG BarighmTG Barighm Member Full Members
    edited May 2013
    Either way, I don't imagine we'll agree on Acti's due credit
    Well, gee, there's got to be SOME reason why they have multiple billion dollar franchises despite all the hate. If it's not because of a solid marketing department, whether that be from unlimited money reserves are actual talent, then I'm stumped. I can see the signs though, so that's the only explanation I can figure.

    Granted, getting Kotick to shut up must have been quite a feat.
  • PawsPaws BEARSONA RPGamer Staff
    edited May 2013
    Hmm. Fair point. I think it may be because we're seeing vocal fans (like us!) and presume we're the majority. There's literally millions of game buyers out there who don't care who said what and where the money came from and whether this person is a giant windbag. They go to the store, see "BRAND NAME HERE," buy game. It's hard for me to wrap my brain around!
    BTW, while it's not the same as console games, MMO companies get excited when 10-15% of their playerbase sign up for social media/forums. Even having 5% of a playerbase participating (with a like/follow) in the community is pretty robust. Kind of gives stuff like https://www.facebook.com/officialsilkroad/likes a totally new perspective, eh? It would be cool at some point to sort of discuss my perception before working there vs. the reality of a community like say, Harvest Moon some day.
  • TG BarighmTG Barighm Member Full Members
    edited May 2013
    I think it may be because we're seeing vocal fans (like us!) and presume we're the majority. There's literally millions of game buyers out there who don't care who said what and where the money came from and whether this person is a giant windbag. They go to the store, see "BRAND NAME HERE," buy game. It's hard for me to wrap my brain around!
    Yeah, I figured out we're the minority when the Bungie forum, despite seeing millions of sales of Halo games across the first 3, only had 400k members lifetime with something like 10k to 20k active within a month. Just goes to show how many gamers really care enough to join a fan forum and talk about it. That, and CoD keeps selling despite everyone saying they hate seeing endless FPS's.

    I can see CoD players buying Guitar Hero (not because they associate GH with CoD), but can you really see the legions of Call of Duty faithful walking into a store and buying Skylanders? Someone had to create the brand awareness at some point. You can't just throw a new game on a shelf and expect it to sell, although I'm sure putting Spyro on the cover helped. I guess it's the cartoon doing all the heavy lifting, but I've never seen it and I never see it scheduled, so I have no idea. I wouldn't be surprised if they imbedded Skylanders stuff into recent Call of Duty games.
  • PawsPaws BEARSONA RPGamer Staff
    edited May 2013
    Hmmmmmm. Skylanders being so wildly popular seemed to surprise everyone, including Activision. I remember buying a couple toys that first November, thinking I'd sort of mosey around to getting the rest after Christmas with some gift cards. I wasn't seeing it covered much (outside of Giant Bomb, who -loved- it hard.) Yeah, that sure didn't happen. They're doing a good job keeping the hype train going now, but I also know from experience the setup may still be little too complicated for some parents. Chris was trying to explain how Giants toys wouldn't work with the original games to one of his co workers (who has a master's degree in something something engineering) and the guy's eyes were glazing over. His son had asked for the game. He did get the start pack though, so hey, it's working!
    I think Skylanders (and GH too) have enormous shelf appeal and whoever designed the packaging is very very smart. It's a game with a cool gimmick and they did it first, with really cool characters. For those of us in that 25-35 demographic that played the original Spyro, it was cool. If you were in the 8-15 range, it had A FREAKING DRAGON (and A FREAKING SWEET BLACK DRAGON if you wanted the 3DS version).

    For what it's worth, I do recall seeing Skylanders actually shelved beside CoD or similar "manly men play this!" Activision game that first year.
  • MasterChiefMasterChief I didn't learn anything! Full Members
    edited May 2013
    Well, I think no one could have expected Skylanders to do as well as it did, but you can't completely absolve Activision of any credit. Their marketing team is doing one hell of a job pimping the hell out of the brand, to the point where you're seeing entire rows of toys that don't even work with the games at Toys R Us. Between that and their consistently wonderful marketing of Call of Duty, the firm that Activision hires to do their marketing is clearly doing its job. Getting Kotick to stop talking in public is also a pretty fine masterstroke.

    And when CoD and Skylanders are milked dry (the latter I see happening VERY soon), Activision will simply move on to the next one. Like their business practices or not, you gotta respect the marketing team.

    And it's interesting hearing all this talk about obscenely budgeted games. Issue 241 of Game Informer (with the Batman: Arkham Origins cover) has an interview with Deep Silver COO Geoff Mulligan, and he talks about just how absurdly risky the massive, AAA game is.

    [QUOTE=Game Informer Issue 241]Game Informer: THQ was cited as an example of the struggles of the "middle-class" publisher in video games. How can Deep Silver negotiate that middle ground between a small, niche publisher and a mega-publisher like EA?

    Geoff Mulligan: First of all, your phrase "middle-class publisher" - I think you're a software publisher first and foremost. I firmly believe that you do not need a giant organization anymore. That's what's killing so many publishers. The moment you don't have a giant, triple-A hit, your overhead eats you alive. What do you do if this big, triple-A game didn't hit? You've got to ship another one very quickly and hope that one does. You keep doubling down, hoping one of these is going to help you recover a given year or a quarter. I wouldn't consider us a middle-class publisher at all; we're a publisher that, in a difficult and rapidly evolving marketplace, uses guerrilla tactics. We move quickly and we don't have a public board of directors to answer to. We like what we do and have fun. That's important! You go to some of these companies - you probably have good friends at some of these companies. You go hang out with them, and they are miserable or they are frightened. I think our people are having a really good time. One thing I've heard lately was, "There are no more B and C titles, there are just triple-As that didn't make it."

    Obviously there's some strutting going on in that quote, but I think the guy hit it on the head. When you try to make a game for everyone and it doesn't catch on, a publisher's boned. This here treadmill wasn't the cause of THQ's failure, but it was clearly what was happening in the company's death throws. Considering Deep Silver's recent success and steady, careful growth, perhaps the problem isn't so much some sort of market intolerance for anything that isn't tiny or huge, but rather the games industry being a bad place for sustainable success in the public space. I see Deep Silver going the way of Zenimax if they keep to what they've been doing recently; a privately-held power player that targets the groups it knows it can market to and going after them, instead of this broad net nonsense that's slowly but surely killing gaming.

    Moving on to the Wii U, yeah, I gotta agree 100% with Paws. Nintendo was making ridiculous predictions based on the success of the Wii, a console that most of the casuals bought just for Wii Sports. It shocks the piss out of me, however, that Nintendo made such a huge mistake after the 3DS. Perhaps it's just that whole "public company" thing biting them in the rear again. Thankfully they seem to have a strong enough corporate culture to weather this, and I fully expect them to return to the "3rd, but massively profitable" business they had in the N64 and GameCube days, especially if their fall lineup starts moving units.
    [SIGPIC][/SIGPIC]
    "What the f--- is a Shakespeare?"
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  • OcelotOcelot is not declawed RPGamer Staff
    edited May 2013
    There are rumors that a bunch of high-ups internally in Nintendo didn't want to do a full marketing push for the Wii U until after system improvements were pushed in the spring 2013 updates. I have no idea how true they are, or if somebody is just trying to figure out why Nintendo, which did a brilliant marketing job on the Wii, seems to have been floundering with the Wii U's marketing.
    Becky Cunningham, Staff-at-Large
    Twitter: BeckyCFreelance
  • MasterChiefMasterChief I didn't learn anything! Full Members
    edited May 2013
    Ocelot said:
    There are rumors that a bunch of high-ups internally in Nintendo didn't want to do a full marketing push for the Wii U until after system improvements were pushed in the spring 2013 updates. I have no idea how true they are, or if somebody is just trying to figure out why Nintendo, which did a brilliant marketing job on the Wii, seems to have been floundering with the Wii U's marketing.
    I can't imagine that being true. Sounds more like the latter theory, people trying to figure it out. Personally, I don't see how the drought of games is helping at all. Nintendo wanted to give 3rd parties breathing room in Q1, and said 3rd parties just went "lol, bye" for the most part. As to marketing, though, it will be interesting to see how Nintendo, which has moved from the simplest controller to perhaps the most intimidating, will sell this to anyone who isn't already a Nintendo fan.
    [SIGPIC][/SIGPIC]
    "What the f--- is a Shakespeare?"
    -Rico Valasquez, showing off why no one likes him.
  • OcelotOcelot is not declawed RPGamer Staff
    edited May 2013
    The Wii U controller shouldn't be remotely intimidating to anybody who has used a tablet. It's just a tablet with some sticks and buttons on the side. They're selling Leapfrogs that look just like the Wii U controller. The barrier to "casuals" isn't the controller design, it's the lack of that fickle magic game that gets them to buy the system, and a lack of awareness that the Wii U is actually a new system.
    Becky Cunningham, Staff-at-Large
    Twitter: BeckyCFreelance
  • omegabyteomegabyte He's just this guy, you know? RPGamer Staff
    edited May 2013
    Ocelot said:
    The Wii U controller shouldn't be remotely intimidating to anybody who has used a tablet. It's just a tablet with some sticks and buttons on the side. They're selling Leapfrogs that look just like the Wii U controller. The barrier to "casuals" isn't the controller design, it's the lack of that fickle magic game that gets them to buy the system, and a lack of awareness that the Wii U is actually a new system.
    I don't think it's so much a lack of marketing as it is a lack of software that's the current problem with the Wii U (not to mention massive consumer apathy about the new console generation), but I also wouldn't surprised if that changes drastically in Q4 this year. Nintendo is in a rare and unique position to launch themselves this console generation. They've got a year of presales under their belt - not staggering sales, mind you, but an acceptable start. If they can launch a flurry of high-value software for the Christmas season, or better yet a killer app like Zelda or a new 3D Mario, they're in a position to absolutely smoke Microsoft and Sony in sales.

    And of course, the 3DS is already poised to have its best year ever. New Pokemon in October is going to drive 3DS sales through the roof come Christmas time.
    "It's okay to fail as long as you learn that you failed!" - Neptune, Hyperdimension Neptunia Victory
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  • OcelotOcelot is not declawed RPGamer Staff
    edited May 2013
    omegabyte said:
    I don't think it's so much a lack of marketing as it is a lack of software that's the current problem with the Wii U (not to mention massive consumer apathy about the new console generation), but I also wouldn't surprised if that changes drastically in Q4 this year. Nintendo is in a rare and unique position to launch themselves this console generation. They've got a year of presales under their belt - not staggering sales, mind you, but an acceptable start. If they can launch a flurry of high-value software for the Christmas season, or better yet a killer app like Zelda or a new 3D Mario, they're in a position to absolutely smoke Microsoft and Sony in sales.

    And of course, the 3DS is already poised to have its best year ever. New Pokemon in October is going to drive 3DS sales through the roof come Christmas time.
    Yeah, the Wii U needs more Nintendo game magic, and Nintendo needs to never give 3rd parties some "space" at launch again (although this time around it seems that the problem might genuinely have been development delays). A new 3D Mario is confirmed to be coming out this fall, so that'll help, though I bet the next Mario Kart and Smash Bros (both confirmed to be in development) will help even more. Although my heart is with the 3D Mario games, they actually don't sell as many copies as a lot of Nintendo's other core game series.

    And yes, Pokemon X/Y will jack up 3DS sales, but Animal Crossing will start the ball rolling. You'd be surprised how many people of all genders and ages love Animal Crossing, and a lot of people skipped City Folk and are slavering for the 3DS version.
    Becky Cunningham, Staff-at-Large
    Twitter: BeckyCFreelance
  • MasterChiefMasterChief I didn't learn anything! Full Members
    edited May 2013
    Ocelot said:
    Yeah, the Wii U needs more Nintendo game magic, and Nintendo needs to never give 3rd parties some "space" at launch again (although this time around it seems that the problem might genuinely have been development delays). A new 3D Mario is confirmed to be coming out this fall, so that'll help, though I bet the next Mario Kart and Smash Bros (both confirmed to be in development) will help even more. Although my heart is with the 3D Mario games, they actually don't sell as many copies as a lot of Nintendo's other core game series.

    And yes, Pokemon X/Y will jack up 3DS sales, but Animal Crossing will start the ball rolling. You'd be surprised how many people of all genders and ages love Animal Crossing, and a lot of people skipped City Folk and are slavering for the 3DS version.
    I think part of it is that Nintendo needs to not force a Wii Sports type game out. If it comes, it comes, but until one of the creative types has an idea on that level, stick with alluring games for the core gamer, both in and out of their established franchises. Q1 has hopefully taught Nintendo that, while they have to court 3rd parties, they can't rely on them, especially with so many stuck in the "graphics above all else" mindset. Get the Wii U selling, prove to the smart companies like Deep Silver and Zenimax that its worth their time, and do a good job! Making the upcoming Mario Party game online-capable wouldn't suck either. Perhaps have Namco do the net code...
    [SIGPIC][/SIGPIC]
    "What the f--- is a Shakespeare?"
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  • ShayminShaymin The Gratitude Pokemon Full Members
    edited May 2013
    Ocelot said:
    There are rumors that a bunch of high-ups internally in Nintendo didn't want to do a full marketing push for the Wii U until after system improvements were pushed in the spring 2013 updates. I have no idea how true they are, or if somebody is just trying to figure out why Nintendo, which did a brilliant marketing job on the Wii, seems to have been floundering with the Wii U's marketing.
    Just want to provide a source for that.
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  • OcelotOcelot is not declawed RPGamer Staff
    edited May 2013
    Aha! So quite possibly true.
    Becky Cunningham, Staff-at-Large
    Twitter: BeckyCFreelance
  • DarkLancerDarkLancer New Member Full Members
    edited May 2013
    Hey, wanted to reply earlier, but law school exams. Anyhow, about the nyancat thing, the allegation was made that copyrights go away if you don't police them enough. I'm specializing in intellectual property law, and have taken several courses on copyrights, and from what I've learned that statement simply is not true of American copyright law. While there may be issue in getting damages (since copyright notice does affect the ability of a party to show the infringer to be a wilful infringer), copyrights don't just "go away" because you didn't sue everyone who might have infringed. If it were a trademark case, I could see how a failure to police might lead to an equitable defense, like laches or acquiescence, but trademarks only apply to things that identify the source of a good, which nyancat probably does not. Also, when I tried to follow the link to Eurogamer to see if somehow this is based on European law (which I'm far less familiar with the minute details), the link wouldn't go through. In sum, I'm pretty sure the legal analysis of that claim is lacking, but I'd definitely appreciate it if someone could direct me to a source that does indicate that failure to police a copyright causes loss of rights.
  • Severin MiraSeverin Mira News Director/Reviewer RPGamer Staff
    edited May 2013
    Eurogamer link is here - http://www.eurogamer.net/articles/2013-05-02-warner-bros-and-5th-cell-hit-by-keyboard-cat-nyan-cat-lawsuit
    That appears to source this link for most of the information - http://www.iptrademarkattorney.com/2013/04/los-angeles-copyright-trademark-sue-attorney-keyboard-cat-nyan-cat-meme-viral-videos.html

    I believe the issue is more that the trademark didn't exist until 2010, after the first Scribblenauts game that contained it was released (believe that refers to keyboard cat only however reading the sources again). Also worth noting that the update at the top of the Eurogamer link didn't exist at the time of the column :)
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  • PaperLuigi1234PaperLuigi1234 New Member Full Members
    edited May 2013
    I really enjoy my wii u. Has a better library than most systems in its first 6 months and by the end of the year will have a stellar library

    think about it, what first year console can top? new super mario bros, zombie u, monster hunter, lego undercity, 3d mario, mario kart, zelda windwaker, pikmin, wonder ful 101 and more? I cant think of one. Even the 3ds started with a worst first year. But wow look at that second
  • OcelotOcelot is not declawed RPGamer Staff
    edited May 2013
    DarkLancer said:
    Hey, wanted to reply earlier, but law school exams. Anyhow, about the nyancat thing, the allegation was made that copyrights go away if you don't police them enough. I'm specializing in intellectual property law, and have taken several courses on copyrights, and from what I've learned that statement simply is not true of American copyright law. While there may be issue in getting damages (since copyright notice does affect the ability of a party to show the infringer to be a wilful infringer), copyrights don't just "go away" because you didn't sue everyone who might have infringed. If it were a trademark case, I could see how a failure to police might lead to an equitable defense, like laches or acquiescence, but trademarks only apply to things that identify the source of a good, which nyancat probably does not. Also, when I tried to follow the link to Eurogamer to see if somehow this is based on European law (which I'm far less familiar with the minute details), the link wouldn't go through. In sum, I'm pretty sure the legal analysis of that claim is lacking, but I'd definitely appreciate it if someone could direct me to a source that does indicate that failure to police a copyright causes loss of rights.
    I do think there's been a fair bit of mixup between the words copyright and trademark in gamer discussion of this lawsuit (link provided for others because I'm sure you already know ;) ). Your argument about copyrights not going away even if not defended consistently is exactly the same as I've read elsewhere from practicing and formerly practicing (hi Zeboyd!) IP lawyers.

    What's interesting here is that the plaintiffs have also sued for trademark infringement. Copyright protects the visual works, so the images of nyan cat and keyboard cat fall under this. Trademark applies to the terms "Nyan Cat" and "Keyboard Cat." The suit accuses WB of willfully infringing on these trademarks by having included the terms in Scribblenauts, yet both trademark applications are still pending. IANAL (I Am Not A Lawyer) myself, so I don't know if it's legally possible to "willfully" infringe on a trademark that doesn't technically exist yet. Do you know, DarkLancer?
    Becky Cunningham, Staff-at-Large
    Twitter: BeckyCFreelance
  • DarkLancerDarkLancer New Member Full Members
    edited May 2013
    Thank you Severin Mira and Ocelot! That's helped me figure out this legal puzzle in a way that makes sense and is consistent with what was in the article!
    As to the claims, it's really hard to willfully infringe an unregistered trademark. Willful infringement requires that the infringer knew that the thing they used was a trademark of someone else (or possibly were reckless in checking to see) and then used it as a trademark anyway. Registration, which allows you to put the R in a circle on your product, is evidence that people were on notice of your rights. The TM sign also does this, for marks that have not attained federal registration (trademarks are also governed by state common law, which basically makes it so as soon as a mark is used in commerce it may be protectable). But if there wasn't any notice attached, then... it'll be hard to show that the infringer knew that there were trademark rights... so I agree the trademark claim isn't likely to be very profitable (they might get an injunction preventing the production of the game, but that won't pay out attorney's fees or profits most likely).
    It sounds like a strike suit to me. They're going in with a claim, hoping that WB and 5th Cell will settle out of court by paying them some money, most of which will probably go to the lawyers :(
    On an unrelated note, you can't get a federal registration in titles for single books or video games, but only those released as part of a series. It can be fun going through your collection to see which games have the (R) mark denoting federal registration, and which have the TM symbol used as notice for unregistered marks.
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