Why the Disney Lorcana lawsuit matters
June 22, 2023 6:37 AM Subscribe
Protecting ideas lies along a thin line of safeguarding creators’ work without stifling creativity and innovation. Ravensburger is still targeting an August 18 release date for Disney Lorcana despite receiving a lawsuit alleging it's a "stolen game".
Here's how I'm parsing what happened: Upper Deck contracted Miller to do some game design, which he did. Then Ravensburger contracted Miller to do some game design, which he did. Upper Deck is not alleging he copied anything that another designer would not have been legally allowed to copy.
This seems more like a "right to work" case. Does a contractor have the right to work for other game companies designing games like other games they have designed, provided they are different enough as to not infringe? I can't see a reason why they would not.
posted by justkevin at 7:12 AM on June 22, 2023
This seems more like a "right to work" case. Does a contractor have the right to work for other game companies designing games like other games they have designed, provided they are different enough as to not infringe? I can't see a reason why they would not.
posted by justkevin at 7:12 AM on June 22, 2023
IANL But it looks like essentially that - and unless there’s something in the contract not mentioned here it’s very hard to see Upper Deck having any kind of case here.
posted by Artw at 8:06 AM on June 22, 2023
posted by Artw at 8:06 AM on June 22, 2023
Their core argument seems to be that Ravensburger induced Miller to breach his confidentiality agreement to take Upper Deck's game design, which Miller worked on, directly to them.
Given game design and mechanics are definitely not copyrightable (only the actual literal text, images etc), and general knowledge and skills learned as part of one job are entirely fair to take to the next, it seems a tough argument to land. Unless Miller was secretly working under the table for Ravensburger while still under contract for Upper Deck (doesn't appear so), or there were literal trade secrets he took with him and revealed (unlikely!), it doesn't seem like they have a leg to stand on.
I'm sure it sucks to get gazumped by someone else with a Disney licence, but game mechanics are 10-a-penny, specifically because they're intended to be easy to remember and apply (in most cases). It'd be ludicrous if you could prevent your contractors from ever using e.g. 'roll a D6' or 'draw top card from deck' in any future game design commission via contract.
posted by Absolutely No You-Know-What at 8:09 AM on June 22, 2023 [2 favorites]
Given game design and mechanics are definitely not copyrightable (only the actual literal text, images etc), and general knowledge and skills learned as part of one job are entirely fair to take to the next, it seems a tough argument to land. Unless Miller was secretly working under the table for Ravensburger while still under contract for Upper Deck (doesn't appear so), or there were literal trade secrets he took with him and revealed (unlikely!), it doesn't seem like they have a leg to stand on.
I'm sure it sucks to get gazumped by someone else with a Disney licence, but game mechanics are 10-a-penny, specifically because they're intended to be easy to remember and apply (in most cases). It'd be ludicrous if you could prevent your contractors from ever using e.g. 'roll a D6' or 'draw top card from deck' in any future game design commission via contract.
posted by Absolutely No You-Know-What at 8:09 AM on June 22, 2023 [2 favorites]
Rooting for Ryan Miller here. Disney is the last company on Earth I want having control over an IP and stealing this dude's work is par for the course for Disney. Their entire business is stealing profit and credit from those who make things.
posted by GoblinHoney at 8:21 AM on June 22, 2023
posted by GoblinHoney at 8:21 AM on June 22, 2023
Miller is the one getting sued for breach of contract - for working on a Ravensburger game (Disney Lorcana) allegedly too similar to one he worked on for Upper Deck (Rush of Ikorr). Upper Deck also want an injunction against Ravensburger to prevent the launch of Lorcana. Miller got paid by both companies for his work.
Disney is not involved in the suit AFAIK, except that Ravensburger's game uses Disney characters under licence - but if they were, they'd be on the same side of the table as Miller.
The main goal for Lorcana is taking on magic: the gathering.
posted by Absolutely No You-Know-What at 8:36 AM on June 22, 2023 [1 favorite]
Disney is not involved in the suit AFAIK, except that Ravensburger's game uses Disney characters under licence - but if they were, they'd be on the same side of the table as Miller.
The main goal for Lorcana is taking on magic: the gathering.
posted by Absolutely No You-Know-What at 8:36 AM on June 22, 2023 [1 favorite]
Honestly at this point I think it would be hard to find a set of TCG mechanics that didn’t resemble a bunch of mechanics employed by other ones - all of them are variations on well established themes.
posted by Artw at 8:38 AM on June 22, 2023 [4 favorites]
posted by Artw at 8:38 AM on June 22, 2023 [4 favorites]
The main goal for Lorcana is taking on magic: the gathering.
That's the framing that media provides, but they're almost certainly aiming for a different space. Some Magic players will have fun playing this, but Lorcana will grab new players who might otherwise not play CCGs at all.
If anything, I'd think the Disney IP will likely draw more Pokemon players than Magic players.
posted by explosion at 8:42 AM on June 22, 2023
That's the framing that media provides, but they're almost certainly aiming for a different space. Some Magic players will have fun playing this, but Lorcana will grab new players who might otherwise not play CCGs at all.
If anything, I'd think the Disney IP will likely draw more Pokemon players than Magic players.
posted by explosion at 8:42 AM on June 22, 2023
I think this is the lawsuit.
"The features in Lorcana were in fact novel and proprietary to Rush of Ikorr and their replication into Lorcana can only be the product of Miller’s theft of Upper Deck’s intellectual property and other proprietary concepts"
...
"To play, each player needs cards which are purchased from Upper Deck. The player uses purchased cards (or ones he/she has acquired through trading, etc.) to strategically build a deck consisting of 40 cards. There can be no more than three identical cards in a deck and the deck can only contain two colors of cards. There are four colors to select from: yellow, green, blue, and red."
(Lorcana changed the deck size, number of colors and duplicate limit, but otherwise is similar to this... novel... mechanic)
posted by justkevin at 8:58 AM on June 22, 2023 [2 favorites]
"The features in Lorcana were in fact novel and proprietary to Rush of Ikorr and their replication into Lorcana can only be the product of Miller’s theft of Upper Deck’s intellectual property and other proprietary concepts"
...
"To play, each player needs cards which are purchased from Upper Deck. The player uses purchased cards (or ones he/she has acquired through trading, etc.) to strategically build a deck consisting of 40 cards. There can be no more than three identical cards in a deck and the deck can only contain two colors of cards. There are four colors to select from: yellow, green, blue, and red."
(Lorcana changed the deck size, number of colors and duplicate limit, but otherwise is similar to this... novel... mechanic)
posted by justkevin at 8:58 AM on June 22, 2023 [2 favorites]
That’s… magic?
posted by Artw at 9:04 AM on June 22, 2023 [4 favorites]
posted by Artw at 9:04 AM on June 22, 2023 [4 favorites]
It'd be ludicrous if you could prevent your contractors from ever using e.g. 'roll a D6' or 'draw top card from deck' in any future game design commission via contract.
And yet WotC managed to do this (somehow, they got protection for "tapping" a card, which really screwed with CCG design.)
"To play, each player needs cards which are purchased from Upper Deck. The player uses purchased cards (or ones he/she has acquired through trading, etc.) to strategically build a deck consisting of 40 cards. There can be no more than three identical cards in a deck and the deck can only contain two colors of cards. There are four colors to select from: yellow, green, blue, and red."
If that's what Upper Deck has, then they are going to be fucked.
posted by NoxAeternum at 9:04 AM on June 22, 2023 [2 favorites]
And yet WotC managed to do this (somehow, they got protection for "tapping" a card, which really screwed with CCG design.)
"To play, each player needs cards which are purchased from Upper Deck. The player uses purchased cards (or ones he/she has acquired through trading, etc.) to strategically build a deck consisting of 40 cards. There can be no more than three identical cards in a deck and the deck can only contain two colors of cards. There are four colors to select from: yellow, green, blue, and red."
If that's what Upper Deck has, then they are going to be fucked.
posted by NoxAeternum at 9:04 AM on June 22, 2023 [2 favorites]
The first thing I thought of is how in the boardgaming community the designer's name means a lot more than the publisher's in most cases.
posted by ob1quixote at 9:07 AM on June 22, 2023
posted by ob1quixote at 9:07 AM on June 22, 2023
They patented tapping. If Upper Deck had patents on anything they wouldn’t be doing whatever this is.
posted by Artw at 9:07 AM on June 22, 2023
posted by Artw at 9:07 AM on June 22, 2023
I'll assume, for the sake of argument, that the Rush of Ikorr mechanics are in fact meaningfully novel. Because I agree there's not much of a case if not. But if so, then the fact that Ikorr is not released yet is what may make the claim tenable.
You generally can't gain access to the non-public mechanics to copy them until they are public even if that would otherwise be non-infringing; that's exactly what trade secret protection and confidentiality agreements are for. It's not a generic noncompete agreement, it's trade secret theft.
My understanding is different jurisdictions have very different ground rules for how detailed the "trade secrets" in your head can be before a CDA is enforceable. But basically Miller's argument would be it wasn't a copy; it was an independent development effort that ended up in "similar but not the same" territory. If the mechanics really are novel that seems unlikely, that you come up with something new and then come up with the exact same thing independently.
Do I actually believe the mechanics are truly novel? Do I believe a jury can distinguish between novel stuff and things in a hundred other games? Am I skeptical this case will actually have much impact? No, no, and yes.
posted by mark k at 9:25 AM on June 22, 2023 [4 favorites]
You generally can't gain access to the non-public mechanics to copy them until they are public even if that would otherwise be non-infringing; that's exactly what trade secret protection and confidentiality agreements are for. It's not a generic noncompete agreement, it's trade secret theft.
My understanding is different jurisdictions have very different ground rules for how detailed the "trade secrets" in your head can be before a CDA is enforceable. But basically Miller's argument would be it wasn't a copy; it was an independent development effort that ended up in "similar but not the same" territory. If the mechanics really are novel that seems unlikely, that you come up with something new and then come up with the exact same thing independently.
Do I actually believe the mechanics are truly novel? Do I believe a jury can distinguish between novel stuff and things in a hundred other games? Am I skeptical this case will actually have much impact? No, no, and yes.
posted by mark k at 9:25 AM on June 22, 2023 [4 favorites]
If I'm not mistaken, the game from Upper Deck hasn't been published yet. So wouldn't that fall under "trade secrets" at least until the game is published?
You may not be able to copyright game mechanics, but there should be some protection (IMO) from having an employee walk across the street and help another company launch a substantially similar product before yours has even launched.
(On preview, also what mark k said...)
posted by jzb at 9:26 AM on June 22, 2023
You may not be able to copyright game mechanics, but there should be some protection (IMO) from having an employee walk across the street and help another company launch a substantially similar product before yours has even launched.
(On preview, also what mark k said...)
posted by jzb at 9:26 AM on June 22, 2023
After reading the complaint, it seems to hinge heavily upon the judge and/or jury being unfamiliar with CCGs. Many of these elements are not at all novel, but in fact exist as prior art, sometimes decades old.
Max two factions? Legends of Runeterra. Characters can't attack first turn they're in play? Many games, including Magic. Resource replenishes each turn? Hearthstone. 40 card deck? Hearthstone (and others). 3 card maximum? Yu-Gi-Oh.
The win condition of hitting a goal instead of reducing your opponent to zero seems like the most novel, but that's hardly unexplored. Netrunner did that in the 90s.
Their best argument will be that of a trade secret, the secret recipe for their fried chicken, the eleven herbs and spices. If they can show that they hired Miller to develop a recipe, and then he took that *exact recipe* over to Ravensburger, they probably have a case. If he developed a similar, but substantially different recipe, then the defense just needs to prove that there's only so many ways to make a quality CCG, and the similarities are incidental to the genre of game.
posted by explosion at 9:41 AM on June 22, 2023 [3 favorites]
Max two factions? Legends of Runeterra. Characters can't attack first turn they're in play? Many games, including Magic. Resource replenishes each turn? Hearthstone. 40 card deck? Hearthstone (and others). 3 card maximum? Yu-Gi-Oh.
The win condition of hitting a goal instead of reducing your opponent to zero seems like the most novel, but that's hardly unexplored. Netrunner did that in the 90s.
Their best argument will be that of a trade secret, the secret recipe for their fried chicken, the eleven herbs and spices. If they can show that they hired Miller to develop a recipe, and then he took that *exact recipe* over to Ravensburger, they probably have a case. If he developed a similar, but substantially different recipe, then the defense just needs to prove that there's only so many ways to make a quality CCG, and the similarities are incidental to the genre of game.
posted by explosion at 9:41 AM on June 22, 2023 [3 favorites]
WotC patenting "tapping" essentially ment nothing though. You couldn't call it that, so you ended up with Call of Cthulhu's "exhausting", Game of Thrones' "kneeling", and Doomtown: Reloaded's "booting", for the first three I could think of.
Exact same mechanic, with a different name.
I think given current law, Upper Deck is going to have a problem winning this one. Unless it is on non-compete-ish situation. But still think they will lose.
posted by Windopaene at 9:46 AM on June 22, 2023 [1 favorite]
Exact same mechanic, with a different name.
I think given current law, Upper Deck is going to have a problem winning this one. Unless it is on non-compete-ish situation. But still think they will lose.
posted by Windopaene at 9:46 AM on June 22, 2023 [1 favorite]
I think this is the lawsuit.
Yeah, the actual alleged causes of action are breach of contract, breach of fiduciary duty, fraud, inducing breach of contract, negligent interference with prospective economic relations, constructive trust, conversion, and unfair business practices. The primary claims are against Miller.
posted by jedicus at 9:47 AM on June 22, 2023 [1 favorite]
Yeah, the actual alleged causes of action are breach of contract, breach of fiduciary duty, fraud, inducing breach of contract, negligent interference with prospective economic relations, constructive trust, conversion, and unfair business practices. The primary claims are against Miller.
posted by jedicus at 9:47 AM on June 22, 2023 [1 favorite]
WotC patenting "tapping" essentially ment nothing though. You couldn't call it that, so you ended up with Call of Cthulhu's "exhausting", Game of Thrones' "kneeling", and Doomtown: Reloaded's "booting", for the first three I could think of.
Flooping? ;->
posted by Insert Clever Name Here at 1:44 PM on June 22, 2023 [1 favorite]
Flooping? ;->
posted by Insert Clever Name Here at 1:44 PM on June 22, 2023 [1 favorite]
The key thing in this case, for me, is the character of Upper Deck. A colleague in the games industry who worked with the company in the 1990s described it to me as a "mob front" and meant it. I won't describe what happened with his company as it's all hearsay (as in, I heard him say it) and I can't prove any of it, but suffice to say that it and its hit game shut down shortly thereafter.
There's a book about the company and its founders. It is called Card Sharks. It means it.
Upper Deck is notoriously litigious, and notoriously bad at it as well. Their case against Konami concerning Yu-Gi-Oh was thrown out after it was proved that Upper Deck, the authorised US distributor of the game, had also been distributing counterfeit Yu-Gi-Oh cards that it had printed.
My personal bet: Upper Deck is hoping that Disney will bring pressure on Ravensburger to settle the suit in order to meet the planned release date. My personal side-bet: Upper Deck has once again bitten off more than it can chew. Ravensburger does not have shareholders, it is owned and run by the family that founded it 140 years ago, and they do not like to be pushed around.
posted by Hogshead at 2:59 PM on June 22, 2023 [10 favorites]
There's a book about the company and its founders. It is called Card Sharks. It means it.
Upper Deck is notoriously litigious, and notoriously bad at it as well. Their case against Konami concerning Yu-Gi-Oh was thrown out after it was proved that Upper Deck, the authorised US distributor of the game, had also been distributing counterfeit Yu-Gi-Oh cards that it had printed.
My personal bet: Upper Deck is hoping that Disney will bring pressure on Ravensburger to settle the suit in order to meet the planned release date. My personal side-bet: Upper Deck has once again bitten off more than it can chew. Ravensburger does not have shareholders, it is owned and run by the family that founded it 140 years ago, and they do not like to be pushed around.
posted by Hogshead at 2:59 PM on June 22, 2023 [10 favorites]
I'm in an industry adjacent to game development (retail game sales) so I know game designers, publishers, whatever. One of the Facebook groups I'm in has game designers and publishers in it and one of the members commented the lawsuit was a cash grab, pure and simple. They name the weakest person in this conglomerate (the designer, not the publisher or the licensee) because he's the most likely to fold. Their chances of winning this lawsuit is bad. But it's not about stopping the game, it's about getting cash.
The same person had played Upper Deck's game and apparently it feels very different than Lorcana. Like it's a totally different game!
posted by fiercekitten at 7:30 PM on June 22, 2023 [3 favorites]
The same person had played Upper Deck's game and apparently it feels very different than Lorcana. Like it's a totally different game!
posted by fiercekitten at 7:30 PM on June 22, 2023 [3 favorites]
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