Back when TxK was released for the PlayStation Vita, a few in the Atari fan community predicted that the release of the game would be stopped by Atari due to the very close similarities between that game and Tempest 2000. To compare the two:
PS (Sorry for all of the edits, with new info and arguing it out with others comes new thoughts)
Imagine if James Cameron spent his career after Aliens making Alien 3, then 4 then AvP – and then because of how popular they are, decide to make a film called “Xenomorphs” which is the exact same film as Aliens but with a different title, new CG effects and a new soundtrack. That’s kind of what has happened in the case of TxK here.
Only now am I reading the argument that they are “distantly related” but when you have practically the same HUD, same claw design, many enemies which are the same as classic enemy designs and behave in the same ways, it is hard to call that “distant” and that is what Atari seized upon. Drawing that line between similar in nature but unique isn’t a new thing for the games industry and lawsuits have been fought over that many times in the past.
A little over a year after the game was released, the predicted action has found its way along according to Llamasoft founder and owner Jeff Minter (YaK), who has shared this PDF letter he received from Atari:
This has caused battle lines to be drawn in the Atari community if you look at comments to his tweets and other articles popping up about it online. It appears that a vast majority are taking Minter’s side of things and I find myself wanting to do so but it isn’t 100% clear cut.
Before we get into that, the nutshells:
Stop selling your game which is too close of a copy to Tempest 2000 to be called original. We own the Tempest and Tempest 2000 IP and here are the reasons why we think your work is a copy rather than a tribute.
I created Tempest 2000 and have every right to create games that are like it. Also, why haven’t you gone after these guys who release Tempest-clones all over app stores? Also, if you cared about your IP so much, why did you let the copyright expire several years ago?
What would have been best
A lot of vitriol is being spewed in Atari’s direction at the moment as fans see their reaction as unfair and overbearing. I think the best solution would have been for Atari to recognize YaK’s talent and come to some sort of compromise where he licensed Tempest for a fee while they published it. With him still getting a cut of the sales it would have benefited him as well as Atari by having a high quality version of Tempest out there. It would have been a win-win for both. YaK did state that he tried to reach out to Atari back then but was ignored.
That hindsight solution didn’t happen of course and it seems less likely that such a resolution would be reached anytime soon.
Who is at fault?
At this point, I think both sides screwed up which is what makes this a little difficult to analyze in brief snippets.
If you read the letter above, I think regardless of which side you fall on, it has to be admitted that Atari makes a pretty solid case. They are not bulletproof in all of their points but it is still strong in the overall view. Those that put it together were very thorough in their research, even citing aspects like the T2K nickname being well-known enough to understand that TxK is very similar.
As for the points they are weak on, YaK is especially upset that they dismiss any of his work on Tempest 2000; they also mention this as one of their bullet points but I disagree with it:
“TxK features an electronic music sound track and sound effects which are indistinguishable from those used in Tempest 2000…”
Well no, the soundtrack was put together using music from a variety of new artists who with one exception, missed the mark on recreating the tempo of that original soundtrack. TxK has a mostly laid back electronic soundtrack and the tempo is one major aspect of the Tempest 2000 songs which drive the feel of the intense play. Noise Pulse is the only track which achieves that same tempo and intensity of the original T2k soundtrack. The rest is electronic music but again, none of it is taken or remixed from the Tempest 2000 soundtrack. However, that is one of many points and if this was to go to court then it is hard to believe that the different soundtrack would make that much difference in lieu of the other points.
The main issue is that from Atari’s view, TxK is close enough to Tempest 2000 to be confused as a part of the series and they are the IP holders of the Tempest name. In boiling down the argument that Minter is using, it suggests that because he created Tempest 2000, that he has the right to the the IP in perpetuity. I wonder how the creator of the original Tempest, Dave Theurer (the original creator of Tempest that I see no one mentioning) feels about that. People say that Tempest wouldn’t exist without Minter – well most of Minter’s work over the past 20 years has been creating Tempest or Tempest-style games. Where would he be without Theurer?
In the Minter argument, I am not aware of any laws/precedents in the world where the hired/contracted programmers are given unwritten ownership rights to the content that they create. I could be wrong since I do not know the laws all around the planet but usually you get what your contract says, if you start assuming things outside of that, it causes trouble. What I do know is that people create games and products all the time for companies where their creations belong not to them but to the company. My own grandfather tells me every time I meet him that the inventions he made for a mining company back in the 50s have been used in industrial settings all over the world and that he’d be a multi-millionaire if he had the rights to them. But he didn’t, so he gets zero cut from it.
So the law is that the company owns the IP so they can enforce it and protect it. They don’t have to enforce it, much like YaK didn’t have to use certain, exact elements from Tempest 2000 (the yellow claw, the same power-up names, same enemies, same HUD, etc) either.
Now if Minter had some sort of document to show that the rights to Tempest 2000 were given to him or purchased, then the courts would look at this differently, if it got to that point. But that is not the case as Curt Vendel, a well recognized Atari historian has pointed out (emphasis mine):
“Yak is an incredible coder, but has the crappiest people skills, he was a work for hire on any and all elements created for T2K (I have a copy of the contract so I know for a fact he has ZERO rights to any of the elements, visuals and audio from his work for Atari) and derivatives and he should know this, but he chooses to make his own rules, they just don’t quite work in a court of law. Sorry, Yak is on the wrong side of this argument and whining about it in public just further makes him look at fault.”
Then there is this, which I mentioned above but which I don’t think helps his legal case were he going to mount one, it does help part of his moral case however:
Legally, this shows that he knew that TxK might cause a problem. Morally, it shows that he did try to get Atari’s blessing but they didn’t take it. Why not take the chance to get the best Tempest remake you could possibly want? Who knows. All of their other efforts in recent years have been rejected or forgotten by fans. The 2007 Tempest XBLA remake was horrible for anyone that had played Tempest 2000 or 3000, it lacked the charm and the spirit.
Granted, I think where YaK screwed up was in releasing the game without any changes after being rebuffed. That tweet shows that he knew that this would infringe on Atari’s rights as the IP holder. I don’t know if a different effort could have been made with them to show them that “Hey, listen! You won’t get another Tempest remake of this quality from anyone else, let’s do business together!” But again, if we go down on the legal side of things, that doesn’t help.
To build on that, Atari has claimed that they have been in contact with Llamasoft about this for a year trying to resolve it but YaK says otherwise. He also has made a good point that there are apps for Android and iOS which are very close to Tempest and I think that if Atari is going to be consistent about this, they should send those developers similar letters if they feel that their IP has been endangered.
At the moment, Atari says there is no lawsuit going on but this has had the effect of preventing further TxK releases to other platforms, as well as future releases of what Minter has called in the past “tube shooters.” Given that they are his bread-and-butter, I can understand his point of view that they are attacking his livelihood.
That is up to him of course – he is certifiably a genius when it comes to coding and doing things with hardware that others wouldn’t dare attempt. If Atari sticks to their guns and forces him to concede to not make tube shooter style games again, it would not be the end of the world. Don’t get me wrong, some of my favorite games have been the Tempest series of games, I have spent quite a bit of time playing them. Thanks to the high score table of Tempest 3000, I have a special connection with that game and I interviewed Minter about it back in 2000. I really have enjoyed Minter’s work but it would be nice to see him move on and apply all of that coding genius into new types of games as opposed to more remakes or spiritual successors. But I am apparently a super-minority on that – it seems that everyone out there with an opinion on this wants him to keep making Tempest-like games until he croaks. Of course if that is what he wants to do and is what makes him happy, I can’t argue against that. But his non-tube shooter work has a flare to it you don’t find anywhere else and so you have to wonder how would those games end up? His visualizers were both amazing and ground-breaking; Defender 2000 was a great game and I think we all would have loved to see his take on Major Havoc, which Atari was floating an idea about back in the 90s. That’s where I’m thinking, if YaK wasn’t locked into tube shooter style games, what could he pull off? I’d love to see that.
Where do you fall on this?