Gaming

TxK dev on Atari legal threats: “Attack me? They should have hired me”

Jeff Minter says his game is legally distinct from its Tempest inspiration.

Kyle Orland – Mar 20, 2015 3:45 pm | 205

...and a similar screen from 2014's TxK.

A video comparing Tempest 2000 to TxK.

Earlier this week, Llamasoft founder and veteran game developer Jeff Minter first spoke out publicly about his months-long legal disagreements with Atari over the rights to Vita tube shooter TxK and its similarity to Atari’s Tempest series. Following some heated public comments on the matter (including complaints of being “savaged by [the] undead corpse” of Atari), Minter spoke to Ars Technica via e-mail to clarify his position on the game and its legal standing in more detail.

Minter says he first heard from “Infogrames” (“I refuse to call them Atari” he says of the ever-changing legal entity that owns Atari’s classic IP) last April, through a lawyer-drafted letter about TxK‘s supposed infringement. “Since then there has been a succession of letters from [legal firm] Dorsey [and Whitney] which basically can be summarized as, ‘Give us personal information about your finances or we will fuck you up.’” Even after Minter sent financial information showing that the Vita version of TxK is no longer making any significant income, he says Atari persisted in “demanding that I take down TxK from the PSN store and that I sign papers stating I would never make a Tempest-style game again.”

Despite Atari’s claims to be in “constant contact” with Minter over the issue, he says he wouldn’t classify the back-and-forth bantering between his lawyers and theirs as real communication. “There was never any dialogue as such, just a series of demands with me conceding a little more each time, expecting a little concession from their side in return but never once receiving any,” he says.

After receiving the first letter from Atari’s law firm, Minter says he tried to suggest some mutually beneficial resolution to the situation, “possibly involving Atari commissioning licensed ports from us and maybe helping out with the promotion along with some kind of royalty share scheme.” After all, as Minter puts it, “I have a game which could with a bit of a spin be marketed as a legit successor to some… Atari IP.”

As Minter sees it, Tempest 2000 is still remembered as one of the best games from the end of “golden age” Atari, and TxK was better reviewed than anything Atari has made in years. “I mean attack me? They should have hired me for god’s sake. … [Llamasoft] could have been a powerful ally and helped them regain some cred amongst Atari fans and brought the Atari brand and games into new worlds like VR and restored to it a bit of gamer dignity. … [Hiring Llamasoft] would probably have gone down pretty well with fans of Atari who were increasingly feeling like Infogrames didn’t have a clue what to do with the brand.”

TxK‘s distinct design

Despite the implications of Atari’s legal letters, Minter says he didn’t have physical access to any of the Tempest 2000 source code or documentation when making TxK and never had access to the source code for the original arcade Tempest, developed by Dave Theurer for Atari in 1980. Minter says he was a freelance contractor for Atari when he worked on Tempest 2000 and was set to receive a royalty from any Tempest 2000 ports to other platforms. He didn’t clarify how his contract with Atari defined ownership of the long-term rights to the game itself, though.

While Minter admits that both Tempest 2000 and TxK are based on Theurer’s original, Atari-owned design, he said that “being generous… Tempest 2000 is probably 20% Theurer and 80% Llamasoft. Even if you were generous and said TxK was 30% Tempest 2000 and 70% Llamasoft, genetically that’s a hell of a lot of Llamasoft in that lineage.”

Even though TxK might seem very similar to Tempest 2000 on the surface, Minter argues there are plenty of design changes to set the latter game apart, such as “a fully articulated ship that genuinely walks along the play surface” rather than the “series of vector sprites” in Tempest 2000. TxK also features the ability to move the firing corridor from one of the ship’s “hands” to the other and to lean out to fire along an adjacent channel without moving the ship.

Minter also points to new features like “loads more enemy types; surfaces that are dynamic and which can be distorted and rotated; different bonus rounds; transition bonus sequences; [and] a million improvements and adjustments that simply reflect my extra 20 years of experience as a designer since I created Tempest 2000.”

“TxK is a tube shooter, but it is not a Tempest game, it has no links to Atari; it is simply a Llamasoft-designed tube shooter made 20 years after Tempest 2000,” he continued. “If I had brought out a game called ‘Tempest 4000’ and based it more deliberately on Tempest 2000 then perhaps they would be right to be upset, but… when Atari commissioned Tempest 2000 from Llamasoft, they did not commission every tube shooter that Llamasoft might ever make for all time.”

“Atari seem to be denying that games can have lineage,” he went on. “Of course they do—look at Super Stardust 3D that plainly has Asteroids genes, or Geometry Wars which has ancestry in Robotron (as does any twin stick shooter). You can’t expect to own every game down the line that draws on an old design for inspiration. If that isn’t adequately proven legally already then it needs to be proven because otherwise it allows exactly this kind of situation where some dog in the manger company with a bunch of old IP can stomp on the head of anyone whose game has ancestry that touches that old IP, and that situation is positively harmful for game design.”

Legally, it can be exceedingly difficult to prove that a game is an infringing “copy” of an older title. Unless specific art/sound assets, source code snippets, or trademarked names are reused, simple similarity in overall game design rarely reaches the level of legal copyright infringement. There are exceptions, though, like The Tetris Company’s successful suit against iOS clone Mino, and the case law on the subject continues to evolve as new judges take fresh looks at the evolving landscape.

In the first letter from Dorsey, Atari also alleges that the TxK name is an attempt to trade on familiarity with the common T2K abbreviation often used to describe Tempest 2000. Minter insists instead that “TxK was chosen specifically to avoid treading on the toes of anyone who was using the Tempest trademark. I no longer wanted to be associated with Tempest, I didn’t want to call it anything Tempest-y like Typhoon or Cyclone, and although I thought it would be putting the game at a disadvantage to give it such an obscure title, I did anyway. I do find it rather odd that even things I did to try to avoid association with Tempest are held up as things I must have done to associate myself with Tempest.”

The ultimate fate of planned ports for TxK to platforms such as the PS4 and Oculus Rift “depends entirely on what Infogrames do next, I suppose,” Minter says. “Should they ever go bust, and I become sure that a stake really is through the heart this time, then I will of course release the ports.”

An Atari spokesperson told Ars the company has no further public comment on the situation, past the statement provided earlier in the week.

Kyle Orland Senior Gaming Editor

Kyle Orland has been the Senior Gaming Editor at Ars Technica since 2012, writing primarily about the business, tech, and culture behind video games. He has journalism and computer science degrees from University of Maryland. He once wrote a whole book about Minesweeper.

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