I was wondering if someone can tell me how a game like spelunky can be made and not be sued. The game spelunky was a knockoff of the game spelunker. Although it was a nintendo game I remember playing it on mame and in the arcade. This game was famous for its unfair deaths. Fall 1 pixel. dead. It was a game not forgotten though. Even ps 3 had a very awful spelunker HD. I dont understand how a game like Spelunky that literally copied more then 75% of the original game and didnt even try to change the name. it just added a y to the name could not get sued. Its like me creating a mario game in the mario universe and calling it dario.

I like Spelunky. I think it improved on the original game. I actually wanted to create a spelunker game. However I didnt because of copyright. Its better that they did actually, because they did a better job then I would have done. Its just so close to the original even the name I dont understand how it even exists without paying royalties.

Maybe this has been covered before and I missed it? I am usually late to the party.

While I'm not familiar with the specific case you're describing, I think this might be generally informative: https://en.wikipedia.org/wiki/Video_game_clone

Note in particular:

In present-day law, it is upheld that game mechanics of a video game are part of its software, and are generally ineligible for copyright.

I think the real problem here is how did it get away with the name being so close (I'll admit I myself even got confused at some point). I'd say it was probably just pure luck, but that's my opinion...

Perhaps unfortunately, perhaps not, gameplay by-and-large is not protectable by IP law. I argue that this is a good thing -- what a world we would live in if Nintendo owned the patent to the modern 2D platformer and forbade anyone from deriving key elements -- no Sonic, no Megaman, none of the countless others -- at least not without paying up for the privilege.

Its true there are serious abuses. There are lone developers in places like China or India who simply clone (or even repackage) software other developers have created. There are more than a few large Western companies who are only slightly-less blatent about it. This is bad.

On the other hand, if stronger IP protections of gameplay are enacted, what body would be responsible for deciding whether a new game has added enough novelty to get a pass, vs a new game which has simply appropriated an old one. What if you created 'Super Dario Brothers' and it had the same gameplay we know and love, but with all-new original characters, settings, level design, and design analogies? What if you made one obvious change? What if you made a dozen subtle changes?

I think its probably right, if imperfect, for game design and derivitive works thereof to operate more like books -- There are only between 3 and 17-or-so unique stories at the macro-level in the entire world (depending who you subscribe to) and yet there are millions of individual and individually worthwhile expressions of those base stories. This is because a story has its own character built up of its components, characters, and their interactions all filtered through the unique voice of its writer. Romeo and Juliet has been told 1000 times but there's still only one Romeo and Juliet (which itself is highly derivitive of an earlier version of the story).

TL;DR; -- Don't worry about it. Keep on keepin' on. Make the games you want to make and feel good about making. Set your own boundaries for what's right and moral, and make sure what you create expresses your own unique voice.

The only thing here that could be contentious is the name. As for the gameplay, well there is nothing really original in the game spelunker its just a platform game set underground of which there are hundreds if not thousands.

There's no IP infringement, so nothing to sue over

I think the real problem here is how did it get away with the name being so close (I'll admit I myself even got confused at some point). I'd say it was probably just pure luck, but that's my opinion...

A Spelunker is a person who explores caves. It's extremely hard to use a dictionary word that describes the product as a trademark.
e.g. Chocolate Milk(tm) isn't valid, because it's a description of a generic product. Likewise Spelunking Game(tm) or Spelunker(tm) would be extremely hard to register and/or protect.

Secondly, trademarks are only valid if they are actually being used to trade a product. Even if the owners of "Spelunker" wanted to defend the title as a trade-mark, they would have to convince a court that (a) it's a valid trademark in the first place (unlikely: too generic), and (b) that the average consumer is likely to be fooled into accidentally buying Spelunky when they actually wanted to buy 1985's classic Spelunker.

I was wondering if someone can tell me how a game like spelunky can be made and not be sued.

This is a question of law, not game design. Moving this to Business/Law.

Everything isn't always Game Design.

If you think Spelunky is iffy, check this out:

https://en.wikipedia.org/wiki/The_Great_Giana_Sisters

In addition to all the items above....

Just because something is unlawful doesn't mean a lawsuit will follow.

Many people speed on the roads, very few receive citations.

Many people break contracts or agreements, very few go to court.

Many people plagiarize, illegally photocopy, or otherwise violate copyright law, very few go to court.



Going through a lawsuit is potentially very expensive for both sides. Many times the damages or level of wrong-ness associated with the violation just don't meet that level. Small Claims court usually only costs a few hundred dollars and is used frequently for minor disputes, but even that is too much for many day-to-day offenses.

Maybe the old IP owners just don't care. Maybe they don't know. Maybe the have forgotten about the old product. Maybe they are just waiting their time to build the lawsuit. Maybe they are waiting for enough assets to make it worth their effort. Maybe there is something else. Whatever the reason, just because one organization happened to appear to get away with it (maybe there was a quiet deal you don't know about) does not mean someone else could get away with it in the future.

That's not to say you can always copy a game and get away with it.

Spry Fox, creators of Triple Town, successfully sued 6waves for creating a clone game called 'Yeti Town'. It used entirely new artwork, but crossed the line by using a nearly-identical UI layout, tutorial popup messages, item descriptions, and even microtransaction costs.

Basically, they didn't just copy the concept/idea (which can't be copyrighted), but they also copied enough actual data (numbers, text, layouts, etc...).

In my opinion, Spry Fox was in the right to sue 6waves, and I'm glad 6waves was forced to settle. Spry Fox was in talks with 6waves to publish Triple Town for iOS, and 6waves used those talks to pump Spry Fox for monetization info and other metrics while secretly developing the clone game. The terms of the settlement is undisclosed, but we do know that 6waves was forced to give up their own clone-IP to Spry Fox.