Games are not copyrightable, assets are. That said, i can't see this end in anything else other than a C&D unless he actually talks to nintendo.
the classic game "Descent" was written by Parallax and published by Interplay. The split-up remnant of Parallax owns all of the assets -- the ship name and artwork, the name of the evil corporation, the music, the robot artwork. Interplay owns the name Descent. Anybody can make a game that flies like Descent (Sol Contingency and Geocore are both trying to), but only an Interplay-licensed company can call their game "Descent", and only a Parallax-licensed company can put in the "Pyro-GX" and the "PTMC". And there seems to be some distrust between the two companies.
This has led to a fair bit of complication for the Interplay-licensed Descent:Underground game (currently on kickstarter -- https://www.kickstarter.com/projects/descendentstudios/desce... ). A lot of fans are asking "where's the pyro?" Well, they can't have the pyro, because they don't have a license for that part of the game. They can make a ship that looks fairly similar and flies identically, but it has to be identifiably visually different and have a different name.
"The first approach is from the 2nd circuit "The Subtractive Approach" (Altai, Nichols) and the other approach is "The Concept and Feel Approach" (Ruth Greeting Cards, Krofft)"
http://www.newmediarights.org/guide/legal/Video_Games_law_Co...?
I am curious to know what would happen if someone decided to clone the exact level design of a game but changed all the audio/visual assets.
This actually happened quite often in early generations of computer games and consoles. Super Mario Bros had quite a few clones where all that changed were the visual assets.
More recently, there are many examples of this happening on the iOS App Store and other venues with a low barrier to entry.
[1] http://en.wikipedia.org/wiki/Konami_Corp._v._Roxor_Games_Inc.
[2] http://www.google.com/patents/US7278913#v=onepage&q&f=false
Pure speculation: It's possible Super Mario Sunshine(2002), Super Mario Galaxy(2007) and other Mario-like 3D could have "refreshed" any patents from Super Mario 64.
That is, if any patents from Mario 64 exist.
The patent in question, http://www.google.co.uk/patents/US6410835. Espacenet has it too of course, http://worldwide.espacenet.com/publicationDetails/claims?CC=..., but Google is better is it gives the B2 published form of the claims as opposed to the A1 first submitted form. Major fail there for the EPO's ESPACENET in my opinion.
Claims 1, priority date is 24 July 1998:
>"1. A dance game apparatus comprising: music output means for outputting one piece of music from at least one stored piece of music; a floor panel having a step-on base section; said step-on base section comprising a top panel and a support member which supports the panel; detection means for detecting a stepping operation on said step-on base section; said detection means comprising stepping sensors interposed between said panel and said support member at mutually opposing positions of said panel; said stepping sensors comprising longitudinally extending conductive sections having a longitudinal length, one of said conductive sections being moveable laterally relative to another of said conductive sections at any one of a plurality of positions along the longitudinal length of said one conductive section to effect contact with said other conductive sections at any one of a plurality of corresponding contact positions such that said stepping sensors detect stepping on said step-on base sections at plural locations corresponding to said plurality of corresponding contact positions, guidance means for performing a stepping operation instruction to said step-on base section in time with said music; measurement means for measuring a time deviation between the timing of a stepping operation instruction and the time at which the fact that said step-on base section is stepped on is detected by said detection means; and evaluation means for providing a higher score the smaller the measurement result." //
FWIW the Mario Kart patent you cite refers to methods of controlling NPC in order to provide strong rivals, avoid bunching of NPC in racing games and provide variation in race orders despite relatively fixed characteristics (acceleration and top-speed). None of that prevents you having cars with the same styles, having the same tracks, having the same end goals, having the same range of pickups and such - it only relates to specific algorithms for providing competing computer controlled cars/NPC.
Now though, I can't see this as being acceptable for Nintendo.
This is clearly a rabbit hole of exceptions and ifs, but this somehow doesn't apply to music as well, based on the recent judgement over Blurred Lines (the song).
However, on the primary copyright issue of the APIs, the court ruled that "So long as the specific code used to implement a method is different, anyone is free under the Copyright Act to write his or her own code to carry out exactly the same function or specification of any methods used in the Java API. It does not matter that the declaration or method header lines are identical." The ruling found that the structure Oracle was claiming was not copyrightable under section 102(b) of the Copyright Act because it was a "system or method of operation."
_The appeals court reversed the district court on the central issue, holding that the "structure, sequence and organization" of an API was copyrightable._
I have no idea why you think this.
This is long settled in US law. Things like art and text are copyrightable. The game itself is not.
What is a game if not an expression of an idea? I would not call the idea for a game a game. I would call the expression of an idea a game. Therefore I would consider games protected by copyright. At least in casual conversation. When speaking in legal terms there is a lot more nuance.
On one hand you can say that games are not protected. Tetris however is. And has successfully been defended us such in court. http://arstechnica.com/gaming/2012/06/defining-tetris-how-co...
If you re-created Mario 64 from scratch but art swapped every asset with something original you would get bitchslapped in court. Hard. The layout and configuration of levels is not an idea. It's an expression of an idea. If you want to make a different level using different assets but using the same mechanics of Mario 64 then that is probably acceptable. You're making your own expression.
It does get a little tricky if you start copying the physics of Mario 64 precisely. There are lots of platformers. Why copy the exactly moveset from Mario 64? Why meticulously reverse engineer the physics of jumping from Mario 64? Copy too much and you run risk of losing a copyright suit as demonstrated by Tetris.
A set of rules. Such rules are potentially eligible for patent protection. They are not eligible for copyright protection.
> On one hand you can say that games are not protected. Tetris however is. And has successfully been defended us such in court.
I suggest you read the actual text of the Mino decision, which rests heavily on visual elements, not gameplay. I also suggest you not put too much stock in the decision of a single district court judge. District court decisions are not binding precedent. Especially ones obviously written by a judge who either doesn't understand what the functional elements of a game are, or was looking for an excuse to find for Tetris.
> The layout and configuration of levels is not an idea.
Those would be assets.
At least you agree with me that layout and configuration of levels is protected by copyright. At least I assume you believe that assets are protected. You don't specify.
All of these waters are largely untested. It doesn't take much discussion to hit them. Good luck.
Edit: and :)
Trademarks seem a much higher legal barrier for example.