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Kit Kat Accused of Copying Atari Game Breakout (bbc.com) 134

An anonymous reader shares a report: Kit Kat's maker Nestle has been accused of copying Breakout, the 1970s computer game, in a marketing campaign. Atari, the company behind some of the most popular early video games, has filed a suit alleging Nestle knowingly exploited the game's look and feel. The advert showed a game similar to Breakout but where the bricks were replaced with single Kit Kat bars. Nestle said it was aware of the lawsuit and would defend itself "strongly" against the allegations. Breakout was created as a successor to "Pong" by Apple founders, Steve Wozniak and Steve Jobs. In the advert, which is titled "Kit Kat: Breakout", a row of people, of varying ages and appearance, share a sofa and play a video game during their work break. In the game depicted, a primitive paddle moves side-to-side to bounce a ball into a collision with the horizontal bars ranged across the top of the screen.
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Kit Kat Accused of Copying Atari Game Breakout

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  • by Anonymous Coward

    They are not making a competing video game so this is fine. I'm throwing out the lawsuit.

    • Does that also mean I get to make a game stacking Nestle candy bars without them suing me?

  • by rsilvergun ( 571051 ) on Friday August 18, 2017 @11:25AM (#55040779)
    that's where they screwed up. Funny thing is Atari probably could have got a lock on brick breaker games if they'd set precedent early enough (Namco/Atari won the KC Munchkin case as I recall).
    • Re: (Score:2, Informative)

      by Anonymous Coward
    • that's where they screwed up.

      I don't see the problem. They aren't publishing a game. They decided to use a clever modification of the breakout game but they could have had people sitting around playing the actual breakout game or Mario for that matter. Taking a video of someone playing the actual breakout game should fall under fair use and playing a parody of it should also fall under fair use.

      • So I'm a fairly staunch opponent of copyright law in general. I think it is way too encompassing and blah blah blah.

        With that said, in the COMMERCIAL sphere, I'm much more accepting. If you are in the business of making commercials, I think you should have all of your ducks in a row when using someone else's work. I don't know if this case has merit or not, but "fair use" arguments seem to fall flat in a purely commercial context.

        • "fair use" arguments seem to fall flat in a purely commercial context.

          But what does that even mean? Does it mean I need permission to eat dorritos in a movie? What about if I'm filming a movie and walk thru a grocery store or drive thru a town where hundreds of logos are present? Do I need permission from every logo that happens to be on screen? In this case, it is obviously front and center so it would have likely have been a good idea to get permission first but even in the commercial context there needs to be some allowance for fair use or you would need the sink man

          • Does it mean I need permission to eat dorritos in a movie?

            Probably. [legalteamusa.net] I suggest before you make your film, you have your copyright experts give this advice, as it can be a minefield.

            there needs to be some allowance for fair use

            There seems to be, but the allowance is a lot less generous.

            I think you should need to actually show harm or loss of revenue to sue someone.

            Not with copyright, nor with certain other things like trespassing.

            • It always seems weird to me that the various brand products are vetted in visual media, but, as far as I know, not or mostly not in books. (For example, Stephen King uses a lot of real brands in his books, and I actually like it -- it makes things seem more realistic.) I realize for movies & TV, nowadays they often are getting product placement (payment or at least the use of free products to film with).

              My favorite counter-example is MTV. They always fuzz out the "other" brand (e.g. if Pepsi is involv

          • by hawk ( 1151 )

            >Does it mean I need permission to eat dorritos in a movie?

            That's what the "No outside food or drinks" sign means :)

            >What about if I'm filming a movie and walk thru a
            >grocery store or drive thru a town where hundreds of
            >logos are present? Do I need permission from every
            >logo that happens to be on screen?

            How quaint.

            Look at the calendar; it's the 21st century. You don't get *permission* to uses their brands, you *charge* them to appear . . .

            hawk

    • This won't go anywhere. Kit Kat 'Breakout' is different than Atari Breakout. Its also less than 30 seconds so fair use could apply. It looks like they've taken down the playable game out of an abundance of caution however: http://www.nestle.co.uk/Career... [nestle.co.uk]
      • Its also less than 30 seconds so fair use could apply.

        In the US, "fair use" does not come into play solely based on the duration of the clip used. It's possible for a 5 second clip to violate copyright, and it's also possible for a 50 minute clip to fall under fair use.

        The determination of whether or not a use is "fair" is based on the total circumstances of the use.

  • by __aaclcg7560 ( 824291 ) on Friday August 18, 2017 @11:25AM (#55040781)
    The current iteration of Atari is just recycling the Intellectual Property (IP) from the 1980's. And, not surprisingly, filing a lawsuit to protect the IP from everyone else.
    • Hell it's not even your daddy's Atari. The real Atari died in 1984, from then on it was a shambling zombie of its former self until someone decided to mercifully put it down in 1996. After that it was just a collection of IP and trademarks that has been bought and sold way too many times.
      • 1984? Atari went through some upheavals around then but under Tramiel continued to produce some decent hardware until the mid-nineties. The Atari ST range wasn't bad (even if the Amiga was a hundred times better), and Atari's Transputer based workstation, and on the other side, early 1990s 64 bit games consoles, were radical and interesting, at least as interesting as the Atari 8 bit home computers were before 1984 (which similarly made little impact on the market, but were loved by their owners.)

        Through

        • You've got some pretty powerful rose-colored glasses there. :)

          The XE line was full of cheap crap that was simply low cost XL era stuff or items that were already having their finishing touches put on them when the crash happened. Almost no innovation there which is why most of the software world ignored it after 1985. The ST line was alright, but even then it suffered from Tramiel's terminal cheapness and stagnated pretty fast (not that Amiga fared much better).The Jaguar wasn't even an Atari product,
    • by crow ( 16139 )

      When Atari split into two companies in 1984, I would think that Breakout would have gone with the arcade portion of the company, Atari Games. Wikipedia reports that it was eventually acquired by Midway, which was sold back to Warner Brothers, so in a sense it's back to where it was. It should have nothing to do with the French Atari company (the result of several sales of the home Atari company), which is the only company using the Atari name now.

      The article is a bit vague on details, but it sounds like i

    • Hey, they have to fund the AtariBox somehow!

      Oh, wait... that's being crowdfunded... to "reduce investor risk". Never mind.

  • by PopeRatzo ( 965947 ) on Friday August 18, 2017 @11:26AM (#55040787) Journal

    Can someone give me one good reason why the Atari game Breakout shouldn't already be in the public domain?

    • by kbg ( 241421 )

      Money

    • Infogrames paid big bucks for Hasbro Interactive [wikipedia.org] that had the Atari IP, renaming the company to Atari, and, like its namesake, took a tour through bankruptcy. They're going to squeeze out every last penny out of the Atari IP since that's the only thing they still have after the dot com bust.
      • Infogrames paid big bucks for Hasbro Interactive [wikipedia.org] that had the Atari IP, renaming the company to Atari, and, like its namesake, took a tour through bankruptcy. They're going to squeeze out every last penny out of the Atari IP since that's the only thing they still have after the dot com bust.

        So, some corporation that is three times removed from the people who actually created the work are able to prevent the work from entering the public domain.

        Ain't capitalism grand?

        • Capitalism IS grand at least compared to other economical systems. What is not grand in this story, are the IP laws , brought and paid for by corp to protect their ip forever.
        • What does capitalism have to do with this? You should be complaining about the ridiculous duration that the government has set for copyright.
          • What does capitalism have to do with this? You should be complaining about the ridiculous duration that the government has set for copyright.

            Good question. As predicted 100 years ago, capitalism will inevitably result in the government being completely co-opted by corporate interests, resulting ultimately in policies that are antithetical to freedom, anti-consumer and anti-worker.

            This has now happened. Government didn't just wake up one day and decide intellectual property should last forever. It's the r

            • Good question. As predicted 100 years ago, capitalism will inevitably result in the government being completely co-opted by corporate interests, resulting ultimately in policies that are antithetical to freedom, anti-consumer and anti-worker.

              And the proposed solutions at the time were Communism and Fascism, which were far more rapidly antithetical to those things.

        • Infogrames paid big bucks for Hasbro Interactive [wikipedia.org] that had the Atari IP, renaming the company to Atari, and, like its namesake, took a tour through bankruptcy. They're going to squeeze out every last penny out of the Atari IP since that's the only thing they still have after the dot com bust.

          So, some corporation that is three times removed from the people who actually created the work are able to prevent the work from entering the public domain.

          Ain't capitalism grand?

          "Capitalism" has nothing to do with it. This is simple property ownership, and the right to transfer (e.g. sell) that property... far more fundamental than capitalism [wikipedia.org].

          Yes, it seems whack that some corporation that is three times removed from the people who actually created the work are able to prevent the work from entering the public domain, but it's no different than someone three times removed from the people who actually built a house now lives in that house, preventing squatters from moving in, or som

      • Steve Jobs didn't tell Woz about the bonus for Breakout and kept the money.
        And when Woz found out, he gave Jobs cancer.

        Always brings warm feeling to my heart!
    • by Anonymous Coward

      "Can someone give me one good reason why the Atari game Breakout shouldn't already be in the public domain?"

      Because nobody woke up decades ago when copyright was extended repeatedly from it's initial 14-28 year term to the current life-time-of-creator-plus-50(to90, depending on the country you're in)

      People still haven't woken up and smelled the coffee on this issue. Every time the lobbyists go rattling their chains and pitchforks demanding more time, more punishments, etc, you have a percentage of the popul

    • by suutar ( 1860506 )

      this is in fact exactly the kind of thing that makes me think copyright should be 20 years, tops. That's a generation. After that, the work is most likely either forgotten and not going to earn much more, or it's become part of the general culture.

    • Walt Disney wants to keep Mickey Mouse under copyright.

  • Here's the Move (Score:4, Interesting)

    by drinkypoo ( 153816 ) <martin.espinoza@gmail.com> on Friday August 18, 2017 @11:27AM (#55040799) Homepage Journal

    Quick, do a cross-marketing promo with Squeenix. We never meant to invoke the primitive 1970s Atari title Breakout, your honor. We were clearly referring to Arkanoid.

    • Do a cross-marketing with Fox at the same time:

      We were clearly referring to Arkanoid: Revenge of D'oh!

    • Since the ad specifically used the work "Breakout", that won't help. No one can copyright simple game concepts like hit-bricks-with-ball (otherwise there wouldn't be a billion three-in-a-row games on the app store), but if you reference a hit-bricks-with-ball game, you had better not call it "Breakout", because that is a trademark issue, not copyright.
      • Since the ad specifically used the work "Breakout", that won't help. [...] that is a trademark issue, not copyright.

        Glad someone can tell the difference. I was disappointed that the BBC article didn't clarify whether Atari asserted a claim under trademark or copyright.

        Does the title even appear in the ad? Ad titles aren't shown when an ad is played on TV.

    • Uhh, what? Taito published Arkanoid.

      • Quick, do a cross-marketing promo with Squeenix.

        Uhh, what? Taito published Arkanoid.

        Since then, Squaresoft has merged with Enix and Taito.

        • +1 informative.

          Duhh. I had to even look up "Squeenix" on wikipedia, then re-confirmed who published Arkanoid, but didn't look further for mergers.

  • by narcc ( 412956 ) on Friday August 18, 2017 @11:34AM (#55040841) Journal

    Where Nelson Mandela died in prison, kids read The Berenstein Bears, and

    Breakout was created as a successor to "Pong" by Apple founders, Steve Wozniak and Steve Jobs

    • and the Ford log didn't have the little curly Q on it.

    • It has elements of truth but is ultimately fundamentally wrong, the element of truth being Wozniak designed a device that implemented the game (it was all TTL circuits), based upon a concept by Bushnell. Somewhat infamously, Jobs handled the contract with Atari to do this, and told Wozniak it was for far less money than it actually was.

      However, critically:

      - Wozniak didn't come up with the idea of the game, he implemented a specification written by Bushnell.
      - Woz's design actually wasn't comprehensible

    • Atari lost its chance to enforce the copying of "look and feel" of breakout when they failed to sue:

      Apple when Woz made the game "Brickout" for the Apple II, and even provided it for free with every computer.
      and
      Taito when they made Arkanoid.
    • Berenstain bears, not Berenstein bears.

      Also, The game Breakout was developed and coded by Steve Wozniak. Steve Jobs lied to him about the contract value and had Wozniak develop the game and gave him a small cut which he thought was half the project value but it was not. That was a point of friction between the two Steves.

  • by JohnFen ( 1641097 ) on Friday August 18, 2017 @11:36AM (#55040857)

    The Atari that produced Breakout hasn't existed for a long time. The name "Atari" no longer even refers to a single company -- it is simply a brand name that is licensed to be used by a number of companies.

    So even though the Atari we all know and love died a long time ago, it saddens me to see the current owners of the name drag it through the mud like this.

  • the copy of one of the million clones??
  • Breakout was played sideways on C64, Arkanoid was always upstanding, and Batty was top-down and wide screen. I bet I can come up with thousand more ball 'n' bricks game names, spanning coin-op arcades, C64, Amiga 500++, Atari 800, and hell, even ZX Spectrum 48k.
  • I never hear about this till now. So they used the Breakout name to get sued. What is a small fine to Atari for all this Free Press?

  • "You put your candy in our video game!"
    "Your video game looks like our candy!"

    *Hershey gives poster a cease-and-dissist order*

  • by fox171171 ( 1425329 ) on Friday August 18, 2017 @12:27PM (#55041241)

    I don't see how they can deny it. It's pretty obvious it's Breakout.

    On the other hand, I see absolutely no sane reason that it should matter in the slightest.

  • A copyright suit will likely fail, under fair-use rules.

    A trademark suit is on shaky grounds unless the game in the ad is actually a real game that is really being made available to the general public. In that case, just change the name from "Breakout" to "Breakmeoffapieceofthat" and the trademark claim will die.

    Implied-endorsement and other trademark-related claims may also have a chance of succeeding, but changing the name from "Breakout" to something else will eliminate the problem as well.

  • DX-ball2 was cool and it was an clone

  • Oh, so Nestle is "aware" of the lawsuit, eh?

    Was it aware it had a legal department at all?

    Does anyone in either Atari or Nestle, outside of their own legal departments, give two shits about this sugar-biscuit homage in advertising form?

  • Neither of the Steves had anything to do with the creation of Breakout. Wozniak did at one time create a circuit for the game but it was never used as no one at Atari could figure out how it worked.

  • ...starts the downfall of Atari brand as a copyright troll... the end route of all brands agnonizing a slow and irrelevant death.

  • Should've titled it: Kit Kat Arkanoid.
  • People bought a kit-kat instead of an atari 2600?
    • In some countries, such as Slashdot's home country, the owner of copyright doesn't have to show quantifiable harm but can instead choose to take statutory damages.

  • If you made a game with the word nestle in it you would expect to be sued. That's just a word, there's a lot more in a game. However, I doubt copyright is strong enough to defend a game on look and feel. They need specifics and for that you can't go past patents. Atari have clearly changed, is this an act of desparation on their behalf, are they this desparate for cash?

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