Thursday, September 5, 2013, by Amanda Colley
There have been numerous lawsuits regarding video games that address various legal issues, such as lawsuits regarding employment conditions, blame in criminal cases, and athlete likeness compensation. A recurring issue in video game law, however, is copyright infringement. Video game history is littered with stories of video game clones violating copyrights. Competitors have copied games’ design, gameplay, artwork, and even names. Nintendo and Atari famously duked it out in the courts for years. Almost all the classic video games have been embroiled in copycat suits: Pong, PacMan, Donkey Kong, and Tetris.
As the game industry and market evolved, social games burst onto the scene, offering wide appeal and quick(er) turn-outs compared with more traditional AAA console games. Social game production presents the perfect opportunity for unscrupulous publishers to churn out cloned games, or, to use the industry phrase, “fast-follows.” Some don’t mind, such as Jeff Wofford, developer of Crush the Castle, the arguable base for wildly popular Angry Birds. But some game developers do mind, like NimbleBit’s co-owner, Ian Marsh, in a Tweet to Zynga about the Tiny Tower clone, Dream Heights.
Some developers mind so much, there have been several lawsuits over social game clones. For example, in October 2012, Spry Fox sued 6waves Lolapps for allegedly copying Triple Town into Yeti Town. This was settled quietly out of court, so this outcome produced no usable legal guidance on how much copying is just too much.
There is a great need for courts to provide guidance regarding the question of how much similarity is just too much?
When industry titans, Zynga and EA, clashed over Sims Social and The Ville, Professor Greg Lastowka hoped that the deep pockets would see the case through to the end, not settle. However, this dream was dashed when Eric Goldman’s prediction came true: Zynga and EA, like Spry Fox and 6waves Lolapps before them, also reached a confidential settlement. Again, the industry was left with no clear guidance on acceptable game similarities.
Enter the brand new lawsuit. King, which rose to prominence with its ridiculously lucrative and incredibly addictive Candy Crush Saga, filed a lawsuit on August 27, 2013, in U.S. District Court in San Francisco. King argued that 6waves infringed the copyright of two of King’s games, Pet Rescue Saga and Farm Heroes Saga. Remember that 6waves was sued less than a year ago by Spry Fox over similar copyright infringement claims. While there are certainly commonalities between King’s and 6waves’ games, if the parties settle, the courts will miss yet another opportunity to provide judicial guidance.
Of course, copyright law demands that games cannot completely and fully copy each other, which would be obvious infringement. However, James Grimmelman commented, “Without a good way to measure nonliteral similarities between games, the industry has developed a dysfunctional culture of copycattery.”
A primary purpose of courts and the legal system is to help settle disputes and lay down guidelines. There is expediency, value, and benefit to settling out of court, and many smaller companies lack the funds to sustain lengthy, expensive lawsuits. However, more lawsuits may continue to be filed in the present world lacking a bright line legal standard. There is a great need for courts to provide guidance regarding the question of how much similarity is just too much? King’s suit against 6waves provides a new hope for the court to issue legal rules of the game.