The video game industry is full of products that seek to imitate, or in some cases explicitly copy, nostalgic games from the past or the of-the-moment trend. Imitations and clones inundate the market after any game that has achieved some degree of success. These range from those merely playing off the clever concept behind the game to the occasional humorous jab. The original creations are not left defenseless. A mix of legal challenges, with a heavy dose of copyright protection, allows developers to discourage, or at least challenge, most of these imitations; but some may be immune to these objections.
One game and its humorous corollary are Oregon Trail and Organ Trail. Oregon Trail was developed in 1971 by an eighth grade history teacher, and later acquired by MECC and The Learning Company, as an educational game to both teach students about the difficulties inherent in historical westward expansion and to encourage the development of resource management and planning skills. It presented a 2D traveling wagon superimposed over various backgrounds, intended to represent the various terrains of the westward journey. These scenes were interspersed with pop-up dialogues displaying choices or random events.
The game was a resounding success, popular in many schools, and remains in production today, with more modern graphics and interface. In addition to the original 2D scenes, players interacted with lists of goods, acting as shops, and top-down hunting games. As was typical for the time, due to the graphical limitations of early computers, the images were blocky and flat. Perhaps the most well-known features of the game were its general visual and audio style. These features included: the mechanics of selecting resources, such as food, ammunition, and water from a list of options presented to the player at the beginning of the game. Additionally, aspects like collecting additional resources throughout the scenario to ensure a positive outcome, and the inevitability of randomly generated negative events, such as attacks and diseases, resulting in the deaths of team members, were iconic.
Organ Trail was developed in 2010 by The Men Who Wear Many Hats (“The Hats”), a small indie development team out of Chicago, nostalgic about the game they had played as children. Organ Trail followed the formula of westward movement and resource allocation, but set the migration in a more modern United States overrun by zombies. With a disregard for the ability of modern computers to create fluid 3D animations, the team behind Organ Trail chose to pay homage to the flat, blocky animations found in its predecessor. It copied those most recognizable elements, using the same visual style and reproducing the audio effects by recording sounds from a vintage computer. Organ Trail let users select resources and skills at the beginning of, and throughout, their westward trek. The player’s goal of escaping the zombie hordes is often thwarted by randomly generated negative events, such as a blown tire or zombie bite.
Based on this overview, it would seem that Organ Trail is stepping on Oregon Trail’s intellectual property rights, at the very least, if not completely taking advantage of the situation; and they certainly aren’t the only ones doing so. Given the fame of Oregon Trail, it is inevitable that other game developers will be inspired by it. In 2011, The Learning Company, owners of the Oregon Trail intellectual property, sued Zynga, developers focused on creating online and mobile games, for their upcoming release of Frontierville’s Oregon Trail. The suit was primarily about Trademark infringement, but also raised concerns about the overall similarities between the games, including the theme, look and feel, and use of randomly generated negative events. The suit was settled out of court, but clearly indicates the Learning Company’s proclivity toward protecting their intellectual property.
The Hats created Organ Trail to poke fun at an experience of childhood so many share by introducing aspects of a modern and popular genre. The Hats have created a parody of Oregon Trail. While no litigation has yet been filed nor cease and desists sent in this situation, the foregoing represents a common practice in the video game industry. Without immediate action on the part of copyright holders, these parodies will continue being made, but such action could stifle the creative urge to repeat those experiences that brought game developers joy, and in some cases derision, in the past. Litigation looms over the heads of those looking to poke fun, and the parody defense for video games needs to be clarified before these cases reach the courtroom door.
Parodies are protected under copyright law. The court has differentiated parodies, which poke fun at the original work, from satires, which comment on something outside the work, and offered greater protection to parodies. In either case, a court ruling will rely heavily on the fair use factors: the purpose and character of your use, the nature of the copyrighted work, the amount and substantiality of the portion taken, and the effect of the use upon the potential market.
Campbell v. Acuff-Rose Music Inc was a Supreme Court case that found a fair use protection for a profitable parody. The dispute was over a rap song which mocked Roy Orbison’s “Oh, Pretty Woman” through sampling and modified lyrics. The court found that the new lyrics offered a ridiculing commentary on the earlier work and that the rap group’s contributions were the product, rather than the sampled sections of the original. It was this analysis that distinguished parody from satire. Although the rap lyrics satirized culture, they did so through a parody intrinsically ridiculing a particular work’s concepts about women and romance. A satire can be expressed without reliance on a particular work, whereas a parody’s commentary is inextricably linked to the original work.
Without a parody game going before a judge, it is impossible to know exactly what factors will be most heavily considered when determining whether or not the creation is protected by fair use. Organ Trail is inextricably linked to the experience of Oregon Trail. The game has taken far more than mechanics or sounds, but enough to evoke the entire look and feel, and transported that expression to a modern game genre – modern survival. The game is a parody of the original while offering wider commentary. In this case, parody is a loving homage to a shared childhood experience.
 Direct copies of games aimed at siphoning some portion of the original game’s market
 510 U.S. 569
You can play Organ Trail right now at: http://hatsproductions.com/organtrail.html