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Not content to simply slug it out on Facebook, rivals Electronic Arts and Zynga are going to square off in court over similar social games.
EA said on Friday that it would sue Zynga over its recently announced game The Ville. "Zynga copied the original and distinctive expressive elements of The Sims Social in a clear violation of the U.S. copyright laws," said Lucy Bradshaw, general manager of EA's Maxis division, in a statement issued that day.
Zynga quickly responded, expressing an equally strong conviction that it was on the right side of the law. "It’s unfortunate that EA thought that this was an appropriate response to our game, and clearly demonstrates a lack of understanding of basic copyright principles," said Zynga general counsel Reggie Davis in a statement.
Both game industry giants claim the legal high ground, but who actually has it? To hear some experts in gaming law tell it, nobody really knows. And if EA v. Zynga makes it all the way to court, the judgment that gets handed down could have a huge impact on the game industry.
The reason that cases like this aren't so cut and dry, says attorney Ross Dannenberg of the law firm Banner & Witcoff, is that there isn't very much case law in the area of videogames and copyright.
"We need guidance from courts as to how much is too much.""In most scenarios, there's a big fish versus a tadpole or minnow," Dannenberg says, a massive game publisher versus an independent developer. An indie may believe its copyright is being infringed, but lack the resources necessary to mount a court case against the big fish's army of lawyers. Meanwhile, a big publisher might not have to go to court to stop a small outfit it believes to be infringing its copyright – why bother, when a sternly written cease-and-desist letter would do the job just as well?
Therefore, few of these cases actually make it to court, which means judges do not analyze the allegedly copied works and render a decision on them. If more of these cases reached this point, there would be more case law – more previous decisions that would serve as industry guidelines for what is and is not acceptable.
Steve Chang, another attorney at Banner & Witcoff who writes about gaming intellectual property law with Dannenberg at the website Patent Arcade, says the key legal principle at play is the "idea/expression dichotomy."
"That's a concept in copyright law that basically says you can copyright expressions of ideas, but you can't copyright the idea itself," said Chang in an e-mail.
In layman's terms: If you want to write a book about kids who go to a magic high school (idea), go right ahead. But if you name your main character Harry Potter (expression), get ready for a world of hurt.
That said, especially in the relatively new and constantly changing medium of videogames, there's a big gray area in the middle.
"Win or lose, EA is doing the videogame community a service by seeing this case through to the end," says Dannenberg. "We need guidance from courts as to how much is too much."
One early case that dealt with this issue concerned the game Pac-Man, specifically Atari's home version of it, and competitor Phillips' game K.C. Munchkin. Munchkin was clearly inspired by Pac-Man but had differences that substantially affected the gameplay: The maze's walls shifted during gameplay and there were only a dozen "dots" on the screen, which actively moved around the playfield to avoid being eaten.
The court was not swayed, writing that "it is enough that substantial parts were lifted; no plagiarist can excuse the wrong by showing how much of his work he did not pirate." It issued a preliminary injunction to Atari, barring Phillips from selling its eat-the-dots maze game.
But that wasn't the end; a later case came down firmly on the side of the alleged copiers. In 1994, Street Fighter II publisher Capcom sued Data East alleging that it had copied elements of the popular martial arts game in its game Fighter's History. Here, the court held (among other things) that since Capcom's characters were themselves based on previously existing stereotypes and martial arts disciplines, Data East's lookalikes did not infringe Street Fighter's copyright.
Confused yet? "The analysis can sometimes get murky," says Chang. And how. In a recent case decided this year in the district court of New Jersey, the presiding judge said as much: "The doctrine is simple to state – copyright will not protect an idea, only its expression – but difficult to apply, especially in the context of computer programs."
The game in question was Mino, a clone of Tetris released for iOS in 2009. Its maker fully admitted that it set out to copy Tetris, but argued that the rules of the game were not protectable expression under copyright law. The judge, Freda Wolfson, agreed that in general, game rules had to be patented, not copyrighted. But, she wrote, Mino went too far in copying the signature Tetris pieces among other elements.
"The style, design, shape, and movement of the pieces are expression; they are not part of the ideas, rules, or functions of the game," wrote Wolfson in her decision (.pdf). "There was no necessity for Mino to mimic Tetris’s expression other than to avoid the difficult task of developing its own take on a known idea."
"With respect to app software, it seems that some developers’ mantra is that it's okay to copy gameplay as long as you reskin it," says attorney Dannenberg. In Electronic Arts' view, this is anything but okay.
"The similarities [between Sims Social and The Ville] go well beyond any superficial resemblance," wrote Maxis chief Bradshaw. "Zynga’s design choices, animations, visual arrangements and character motions and actions have been directly lifted from The Sims Social."
Electronic Arts' court filing goes into the details. The Ville, it says, uses the exact same skin tone colors as Sims Social, down to the individual RGB values. The refrigerators in the virtual people's houses are so similarly drawn that they overlap nearly perfectly.
In its filing, EA paints Zynga as engaging in a pattern of copying, noting that its hit games FarmVille, Mafia Wars et cetera were directly inspired by previously existing popular products.
"Maxis isn’t the first studio to claim that Zynga copied its creative product," wrote Bradshaw. "But we are the studio that has the financial and corporate resources to stand up and do something about it."
In other words, there are no little fish in this fight.
How it'll all shake out is anyone's guess. A court might decide, as in the Street Fighter case, that the similar character designs count as ideas, not expressions. Or it may find, as in the Mino case, that styles and colors are protected by copyright. Or both.
Whatever happens, Ross Dannenberg says that the legal community will be quite happy to have more case law on the subject of copyright and videogames, to shed more light on the penumbra of ideas versus expressions.
"There is some level of protection beyond your exact expression," he says. "The question is, where does that end?"
