Unfortunately, cases of blatant cloning aren't anything new on the App Store, with many cases being reported, the most recent being the Tetris v. Mino case. For an indie developer, dealing with such a situation sucks, with the only recourse typically being a lengthy legal battle that hardly guarantees an easy victory.

However, that legal option may be looking better for developers looking for a way to combat copying. Recent developments in the Spry Foxx LLC v. LOLApps, Inc case, in which the developers of Triple Town filed suit against the developers of Yeti Town for copyright infringement, have revealed new interpretations of copyright law by a court which seem to favor and give weight to the efforts put forth by creative developers.

As before, keep in mind that we're not lawyers; we just write about video games on the Internet. Sunstein Law, however, runs an intellectual property newsletter written by law types, and they currently have a comprehensive article on their site regarding the latest developments with the Triple Town court. As we've done in the past, we'll block-quote portions of its article to make sure we don't get anything wrong and offer our view.

First, a brief history on the current field of copyright law and gaming:

Earlier this year, in Tetris Holding, LLC v. XIO Interactive, LLC, an unabashed Tetris clone suffered a big defeat. Rejecting what has become a clone developer’s standard defense - that it copied only non-expressive, functional elements of the original game - the court found that the clone had infringed the Tetris copyright.

Within days of the Tetris decision, Spry Fox was citing it in support of its own copyright complaint. At the same time, 6Waves asked the court to throw out Spry Fox’s lawsuit based on the same kind of unavailing arguments used by the defendant in Tetris.

Now, in another victory for video game innovators, the court in Seattle has rejected that argument.

As we noted earlier, the ruling in the Tetris case was a bit of a big deal for copyright holders, but there was some thought that it might be an isolated case because of the fact that it was a case of (arguably) blatant copying, and because it was Tetris. It appears however, that might not be the case.

A bedrock principle of copyright law - albeit easier to state than to apply - is that copyright protects the expression of a particular work but not its underlying idea. As in the Tetris case before it, the Spry Fox litigants focused on separating the protectable expression of Triple Town from its underlying idea.

For its part, 6Waves argued that Spry Fox’s claims were doomed to failure because Spry Fox had alleged copying only of the rules, game play and concept of Triple Town, all of which 6Waves asserted are not entitled to copyright protection: “The fundamental problem Spry Fox faces is that the two games look nothing alike, so it cannot claim copying of any expressive aspect of Triple Town.”

The defense of games looking nothing alike seemed to be the go-to defense for most clones. In essence, if you gave a clone a proper re-skin, you could potentially copy all the underlying rules, themes and concepts and get away with little potential recourse.

However, the Triple Town court appears to have decided not to side completely with that view. In discussing what it considers 'elements of express' (i.e. things that can be copyrighted), the court writes:

A video game, much like a screenplay expressed in a film, also has elements of plot, theme, dialogue, mood, setting, pace and character. Spry Fox took the idea underlying Triple Town and expressed it with its own characters, its own setting, and more. These objective elements of expression are within the scope of Spry Fox’s copyright.

This is an important distinction that arguably hasn't really been made before. The court seems to be saying that developers should be afforded more protection than simply against clones that don't even bother to significantly change sprites/arts (i.e. like the Tetris case). Instead, they may be given protection against elements that are more abstract, such as plot, theme and more. The concept of a protection for thematic elements would prove important for Spry Fox, as Sunstein further writes:

Comparing the descriptions and screen shots of the two games, the court found Spry Fox’s allegations “more than adequate” to highlight the objectively similar expression embodied in Yeti Town. In doing so, the court noted that the games share a similar object hierarchy (“Progressing from grass to bush to tree to hut is similar to progressing from sapling to tree to tent to cabin.”). More importantly, the court pointed to the similarities in the overall setting and theme of the games (“A snow field is not so different from a meadow, bears and yetis are both wild creatures . . .”).

Having found plausible substantial similarity between the expressive elements in Triple Town and the corresponding elements in Yeti Town, and citing numerous comments from game reviewers and bloggers on the games’ striking similarity, the court denied 6Waves’s motion to dismiss Spry Fox’s copyright claims.

As the Sunstein post mentions, this is really just the beginning of what will most likely be a lengthy battle. The court only ruled that Spry Fox's case has enough merit to continue to the next phase of litigation. Still, the interpretation of elements such as plot and theme as being protected in games is a very interesting development, and, if adopted by other courts, has a chance of giving developers much more protection in their creative design elements than previously thought. Sunstein concludes with one possible reason for this shift in legal interpretation:

Spry Fox also teaches that advances in technology may require us to rethink the idea/expression dichotomy as applied to video games. Many of the cases that 6Waves relied on date back to the 1980s and involved video games running on 8-bit home computers with 64k of RAM. Given the hardware constraints of the day and the limitations they imposed on video game developers trying to express their ideas, it is hardly surprising that the courts found most of the game elements at issue to fall on the (unprotectable) idea side of the idea/expression dichotomy.

Regardless, it looks like the battle against rampant cloning is heating up from a legal standpoint, with the possibility of legitimate legal recourse looking more likely for developers. Either way, we're going to be very interested in the future proceedings in the Triple Town case, especially as we look towards the juggernaut EA v. Zynga case as that heads to court. Finally, feel free to visit Sunstein's write-up on the entire decision, as there's a lot more discussion on what the court decided.

  • mudd

    Gameloft better start making their own copies of very successful lawyers.

  • ducksFANjason

    While Yeti Town certainly appears to be blatantly ripping Triple Town off, and I hate to see great ideas pilfered by other devs, this court's specifications on what could constitute copyright infringement sound sort of dangerous to me... There is certainly a fine line between stealing others' work and creating a legitimate imitation of a game type (and I'm not speaking to this case's verdict) but the issue lies in the fact that that line is subjective. Where does the copyright infringement end in terms of creating a game that has a plot similar to another work? Does that mean that if I create a fantasy game based around 4 heroes who must destroy a cursed necklace that I'm infringing on Lord of the Rings simply because a necklace is too similar to a ring?

    Don't get me wrong, I think it's great that devs can protect their games, but I worry that this will be taken overboard and will stifle production on new games. I've sort of always taken the approach that the original game is likely to sell better BECAUSE it's the original anyway (unless the knock-off improves on the formula somehow), so unless the offending dev completely rips off assets specifically, let them be. But then, I'm not the dev of Triple Town and maybe if I were I'd feel differently... Anyone else's thoughts?

    • mreford

      You raise a great point, which I think is the heart of the difficulty of copyright law in general.

      The simple fact is that while there are tests and guidelines that courts (or juries) can follow, copyright infringement in this regard will always be subjective. In this regard, we also have to make sure that copyright defenses like fair use are also equally given a facelift for gaming.

      • computergamedesigner

        But you could tell if a musician stole a tune, or if a writer copied a book. Why is a computer game any different. Writers and musicians should get copyright protection but game designers should not? I guess I'm just going to have to get a job at Zynga so I can at least pay the rent.

    • xDyNaMiiCx

      Couldn't said it better myself.

    • fredfnord

      You say it might stifle production of new games. Whereas I'd say it might stifle production of OLD games. Which is to say, warmed-over rehashes of games that already exist.

      And I say, hallelujah to that.

      • MidianGTX

        I'm delighted when a once forgotten game is given a new life. Take that away from me and I'll start knifing strangers in the street.

      • computergamedesigner

        Find the designer of the forgotten game. Ask him for permission. It's the right thing to do. btw. a really good friend was knifed by a stranger in the street, not very funny.

    • Wikilix

      The example you used though seems too vague for copyright laws, (sorry if you were exaggerating) but When a game follows a Vague yet similar plot line to LOTR, Copy Right should not be A factor, as long as said game has more Differences then similarities when compared to LOTR. If the Opposite happens then a lawsuit is necessary, such as what is happening with Triple Town and Yeti Town.

      • ducksFANjason

        Yea I was just trying to give a quick example so it wouldn't read like an endless rant :-) I guess it wasn't a very good example lol

    • http://iqsoup.com/ iqSoup

      99.99% of games are in one way or another iterations of a previous title.  I completely agree with your fears.  Without a clear legal distinction between an honest iteration and a blatant rip-off who isn't potentially open to a lawsuit?  Its already risky enough for indie developers or small studios to pour money, time, blood, sweat, and tears into a game.  I'd hate to see too many more lawsuits like this--it'll mean a big chilling effect on smaller game developers.

      • computergamedesigner

        The creator of the original game is the one who poured money, time, blood, sweat and tears into his creation. I'm all for indie developers to do the same. It would suck if an indie developer finally got their game to market and three months later a giant publisher simply ripped them off. If that was allowed, that would be the end of indie development.

    • computergamedesigner

      So if someone took World of Warcraft, had some programmer sweatshop in India make a game that had identical graphics, game play, music but changed the name, that would be okay? The years that went into game balancing, graphic art creation, development are up for grabs to anyone? Big publishers would not have to license anything, they would simply make pretty much dead copies of every game anyone created. I just don't think that's how it should work.

  • Harti

    I don't think it's prohibited by law to copy successful websites like eBay and change a few colors and the logo of course.
    You'll probably end up in the never seen depths of the WWW if you do as eBay's got first turn advantage.

    Why should the first one to have an idea be granted to keep a monopol?

    Then again I do find it ridiculous that it's generally allowed to blatantly copy a game. If you really added noticeable novelties to spice up the original idea, I'd be okay...ish with that. But completely copying is just odd.

  • Jamie Churchman

    I can't see any good coming of this. If bushes and animals are protectable expressive elements of Triple Town, what does that say about guns, enemies and doors in an FPS. What about the tropes of a physics puzzler? Three stars? A character that jumps between platforms.

    In a perfect world this will end temple run clones, creatively bankrupt practices and save iOS gaming from endless re-hashes of the same game.

    In a not so perfect world beloved gaming tropes such as collecting three stars will become expressive elements protectable by law. the law will become a tool weilded by those with enough cash and cynicism to shut down competition.

    I guess we will land somewhere in the middle.

    • computergamedesigner

      When I design a game, is ask testers "is this like another game". If they say yes, I change it. That's the way it is for books, music and movies. That's the way it should be for games.

  • araczynski

    this sounds like it would open the doors from any number of genre specific games to start eliminating competition and 'owning' the genre.  well, as long as one holds a copyright i guess.  match3 games are dime a dozen, as are tower defense, as are the endless runners, and on and on and on.  

  • http://www.facebook.com/eric.farraro Eric Farraro

    I'm strongly against too much protection in this space, as it really does muddy the waters as to what is and isn't acceptable.  We've seen what patents have done to the software industry, and I'd hate for copyright to do the same to games.

  • Karzay

    I don't really think a game is like a screenplay. A game is more like a production of a screenplay if anything.

  • http://twitter.com/TomateDiseno Tomate Diseño

    Yeah this is all very difficult ground, think of all the things we have now which have come from someone elses original idea. Semantics aside there'd be McDonalds and no choice of Burger King, Carls Jr, Wendys; putting a slab of meat between a couple bits of bread is blatantly copying someone else's idea, even if the sauce is different.

    I'm completely against the thieving of others ideas for a lack of your own, but what if Yeti Town was better than Triple Town in every way? Is that not a good thing for consumers?

    • computergamedesigner

      In order for it to be better, it would have to be different. If it's different, no problem. But is it's not better in any way, then it's the same. Then I say to the copier "go make your own game".

      Ideas are not copyrightable. So you're safe opening a hamburger shop. If however, your hamburger looked and tasted exactly like a Big Mac, goes who would come after you.

  • Gamer_Kev

    Now that there are a lot of lawyers and judges around that grew up with gaming, I think we'll be seeing a better understanding of what a video game is in the courts. This could certainly be a boon for designers trying to protect their IPs, though hopefully they won't go over board with it as there needs to be a real understanding between inspiration and blatant copying, otherwise the whole gaming community could be hurt by it.

  • Jaryd Tercenio

    This case brings to mind the case between Konami and RoXoR several years ago, in which it was rules that In the Groove was too fundamentally similar to Dance Dance Revolution, in that both games involve stepping on four arrows in a left/down/up/right arrangement, despite the fact that the display, art, scrolling, and music were all entirely different, and the games emphasis on scoring and accuracy gave it a very different tone from DDR's happy/fun mood.

    That ruling put RoXoR completely out of business, and brought the ITG franchise to a dead halt. More importantly though, it also brought Konami's DDR series to an almost-equally abrupt halt, as there was HUGE community backlash against Konami for killing the far superior game.

    Since then, Guitar Hero managed to thrive, despite being fundamentally identical to Konami's Guitar Freaks, Rock Band managed to get by on the basic principles establishd by Konami's GH+DM linked games, and DJ Hero rounded out Konami's downfall by blatantly ripping Beatmania. But why did the Guitar Hero and Rock Band franchises survive where In the Groove did not? Money.

  • JohnGreenArt

    I have to wonder if game developers should look into patents versus just relying on copyright law. While copyrights don't protect game mechanics, patents can, as evidenced by the Sega Crazy Taxi vs. Fox court case. While it was settled out of court, since then no driving or open world game has used the "arrow/pointer above vehicle/character to indicate goal direction" mechanic. They've used similar things, but not that precise mechanic.

    It also seems like, with games, the "expression of an idea" protection copyright provides or allows is not quite the same as it is for prose and other writing. You can't get away with re-writing someone's novel just by changing the names of the characters and using different vocabulary. You have to change more than just those things, paraphrasing is not enough. But with many clone games it seems like all the cloners did was paraphrase--change the names and graphics. Re-skinning a game doesn't legitimately make it a new one.

    That said, I think the Sega patent is a little absurd. While the Simpsons Road Rage game may have been a clone of Crazy Taxi, I think the patent shouldn't really apply to individual elements. Taking one or two things from one game and using them in another should be fine, within reason of course. It's copying the mechanics of a game wholesale that is objectionable.

    • computergamedesigner

      If we all started taking out patents, then when making a game, we would have research every element of our game to make sure it did not infringe on someone else's patent. We would all have to have lawyers involved from the beginning of development. Talk about stifling new development. Besides Patents only last 12 years. Someone in Japan had the patent for "high score", someone else had the patent for "sprite" (animated graphic character). No one paid any attention to those patents and the industry moved on.

      • JohnGreenArt

        I don't think there's any danger of "all" developers patenting their game designs. But the point is, there is already an option for protecting game mechanics beyond what only relying on copyright provides. And if you can prevent cloners from ripping you off for 12 years, why is that bad?

        Sega got a settlement out of Fox because Fox didn't think they'd win against the claim they cloned Crazy Taxi. But the copyright law applies to the expression of the idea, which Fox possibly could've successfully argued against. The patent applies to the specific mechanics, not the names or art or graphics, and that they could not argue against having copied.

        Yes, patents are expensive, but there are always costs to doing business. If you truly believe you have something special that others may try to rip off, you can either seek out all the forms of legal protection of your idea you can get now, or risk having a weaker case if someone does rip you off and you take them to court.

        Personally, I believe copyrights should provide greater protection than they do, or at least more consistent protection. Too often I hear about cases that are nearly identical, but one infringer gets away with it and another does not, and there really seems to be no precedent. If copyright is supposed to express not an idea, but the specific expression of an idea, I can see how that protects writing, music, and art, but I DON'T see why a specific game mechanic isn't also an expression of an idea.

        But anyway, my point was, as imperfect a system it may be, patents are at least an additional form of protection to consider beyond copyright.

  • statisticalguru

    Triple Town is a scam.