Recent Ruling in Triple Town/Yeti Town Game App Dispute Provides Cautionary Lessons for Both EA and Zynga (Partial Forbes Cross-Post)

By Eric Goldman

Spry Fox LLC v. Lolapps, Inc., 2:12-cv-00147-RAJ (W.D. Wash. Sept. 18, 2012).  The complaint.

Even with all of the media coverage over EA’s ($EA) recent copyright infringement lawsuit against Zynga ($ZNGA) (including my blog post on the case), there was no clear consensus about which litigant had the upper hand legally.  This was, in part, because the lawsuit raises difficult and murky issues under copyright law’s “idea/expression dichotomy,” which says that ideas aren’t copyrightable but the expression of those ideas can be.  A recent ruling in a different cloned game app case shows how courts struggle to apply the idea/expression dichotomy to cloned app games lawsuits.  Accordingly, the new ruling implicitly cautions both EA and Zynga to settle their case rather than have a judge rule on its merits.

The new ruling involves two game apps.  The first app is “Triple Town,” where users match different objects to work their way up an object hierarchy. The rival app is “Yeti Town,” which has functionally identical gameplay but using modestly varied user interfaces.  Yeti Town is unquestionably a clone app of Triple Town, and due to the similarity of their gameplay, consumers likely view the apps as substitutes for each other (i.e., there is little reason for a user to play both).

Triple Town sued Yeti Town.  The district court’s ruling on Yeti Town’s motion to dismiss is both illuminating and confusing.  The district court guts the copyright eligibility of some key elements of Triple Town’s gameplay and user interface.  The court says:

* it’s standard (in copyright parlance, scènes à faire), and therefore not protected by copyright law, to award points and coins to players, display gameplay suggestions in the margins and provide an in-game marketplace.

* in-game dialogue boxes explaining the hierarchical matching process, and expressing the concept of redeeming coins for in-game advantages, are subject only to “thin” copyright protection that probably only restricts verbatim copying.

* some of Triple Town’s choices were “functional” and therefore not protectable either.  (Note to copyright geeks: it’s odd phrasing to discuss “functionality” limits to copyrightability).  Functional elements include the size of the object matching grid (6×6), the marketplace’s pricing structure, and limits on the number of in-game advantages that players can purchase.

* the gameplay rules, and aspects like exchanging coins for in-game advantages, are subject to “thin” protection at most.

Having knocked out many of the elements that Triple Town alleged Yeti Town copied, the opinion seemingly points to an easy win for Yeti Town.  Yet, in an unexpected switcheroo, the court says that Triple Town has adequately pled copyright infringement by Yeti Town.  The opinion isn’t entirely clear why, but the court apparently thinks Yeti Town’s user interface (UI) changes didn’t go far enough:

the object hierarchy coupled with the depiction of the field of play comprise a setting and theme that is similar to Triple Town’s. A snowfield is not so different from a meadow, bears and yetis are both wild creatures, and the construction of a “plain” is not plausibly similar to the construction of a “patch”

The assessment of each game’s UI gets to the heart of the EA-Zynga dispute.  Like Yeti Town, Zynga allegedly copied the basic gameplay from EA and then put its own lightly modified UI elements on top of that gameplay.  Indeed, as alleged by EA, Zynga probably did less to modify its UI than Yeti Town did.  The Triple Town ruling suggests that Zynga probably can’t score a quick win.

At the same time, the case also shows the risks to EA of pressing its case.  The court could gut the copyrightability of key elements of EA’s games, just like this judge did to Triple Town.  EA should be nervous about setting an adverse precedent like that.

Thus, both EA and Zynga potentially have a lot to lose from letting their case proceed.  In light of these risks, both parties should be actively pursuing settlement negotiations rather than putting their fates in a judge’s hand.

More generally, the battle over cloned apps, especially cloned game apps, shows no sign of letting up.  Unfortunately, because such cases consistently implicate hard idea/expression dichotomy issues, we aren’t likely to get definitive guidance about the legal boundaries of copying soon, if ever.  All of this counsels game developers who are worried about competitive cloning to prioritize non-legal solutions that maintain their competitive posture against cloned apps.  For the foreseeable future, it will be more prudent to slug it out in the marketplace than to slug it out in court.

BONUS: One piece I left out of the Forbes post:

while the title “Triple Town” is not itself copyrightable, the fact that 6Waves chose the title “Yeti Town” is potentially relevant to the substantial similarity inquiry….It is at least plausible to infer that 6Waves chose the title “Yeti Town” because it was copying “Triple Town,” and the trier of fact can consider this inference as it considers the similarity between the two games.

Say what???

Also, Marty Schwimmer has issues with this ruling too. In contrast, Prof. Greg Lastowka writes that this ruling:

nudges copyright a little bit further toward protecting game mechanics….I think that, based the court’s analysis, if this were EA v. Zynga (instead of Spry Fox v. Lolapps), EA would win.