Copyright in social games is one of my favorite hot IP issues – back in the day, people sued Zynga for copying their games (though, admittedly and perhaps tellingly, not for copyright infringement). Then, Zynga sued other people for copying Zynga’s games, and those people defended themselves by saying that they both copied the games from somebody else. Now, eschewing the legal system, a small developer is taking to the streets (ie Twitter) to spread the word that Zynga is copying their game, Tiny Tower. Zynga has good reason to copy Tiny Tower, as the game was named iPhone game of the year by Apple. But the copying is pretty blatant, as can be seen by some side-by-sides created by the Tiny Tower developer (Nimblebit).
The whole thing is great theater and it inspired a field day on Reddit, but what does it mean? Would Zynga be liable for infringement if Nimblebit chose to sue? (Note to all small game developers reading at home: Don’t warn an infringer like this if you want the option to sue, ever. /end lawyerish). I wrote pretty extensively about the gray area in copyright in social games back when Zynga sued Vostu, because the issues are in some respects totally unique. For one, while any single game is clearly eligible for copyright protection, it’s not clear how far that extends in the context of a game – straight copy and paste of the art from one game would clearly be infringement, but what if you just have your own artists and engineers reproduce the basic elements of the game, the UI/UX, and the mechanics? Now you are moving from the realm of copyrightable creative content to uncopyrightable genres and ideas, which games in general have been building on for years. As Vostu noted in their defense, the big games on Facebook are largely paying homage (to put it nicely) to a PC or Game Boy game (remember when game boy was “mobile games”?). Secondly, copyright law has been seldom deemed to protect the menus and interfaces of computer software, but that’s largely what most of the copying allegations in the social game space point to as evidence of copying. To really get into some common copyright terminology, it is often stated that copyright protects the “expression” and not the “idea” – in this context, both genres and user interfaces fall more on the “idea” side.
An excerpt from Nimblebit's anti-Zynga screed
Anyway, the short answer to the Nimblebit lawsuit hypo is that they probably wouldn’t win, but I’d love to see the issue of copyright in social games tested more thoroughly in court. There’s two dimensions to the issue as I see it, one non legal and one legal:
Does game copying hurt consumers?
The issue of copyrightability as between two game developers never came up often in the context of console games, the basis for what we have in terms of precedent, because the production and distribution cycles made it practically difficult to see a successful game and push out an identical competitor before it was too late to capitalize on the popularity of the original. Now, game production cycles on web and mobile are so fast and iterating happens so quickly that games are experiencing duplication as a threat like never before. Companies like Nimblebit can spend a ton of time and money creating a game that another company (ahem) can copy in a matter of days. Full disclosure: I really like Zynga and I’m sitting on the couch of a friend who works for Zynga as I write this. But Zynga isn’t the bad guy here regardless – it really isn’t clear where the line is between paying homage to a game and infringing the game’s copyright. Zynga adds a lot of value to a game beyond the graphics and game mechanics in the form of an extensive network of users and a level of polish that only a public company can provide. To put it another way, no matter how many different Scrabble clones there might be out there, the free market is inevitably going to settle on one as the network effects push users to the game where there friends are, until everybody is playing Words With Friends. Users aren’t necessarily hurt by the copycat culture in social games, because network effects will push people to one platform anyway, and the art isn’t usually what’s drawing people to the game in the first place.
Is the copying we are seeing now a violation of copyright law?
Maybe, maybe not. Okay, probably not. It’s a weird issue, because to say there is no copyright in social games, or more specifically that copyright only protects against exact replication of graphic assets, is to say that social games have really no effective IP protection at all beyond unauthorized reproduction. To say that copyright protects more, however, would be to extend copyright protection to the area of a genre, something more akin to an idea than an expression of an idea. It would also be a complete disaster for the game industry in many respects if a court ruling gave more than cursory copyright protection to game developers over entire genres, as there has been an implicit understanding that genres aren’t copyrightable since the the first Wolfenstein clone. But as computers become more and more a part of our lives, and as games on those computers become more and more valuable, is the network effects + limited consumer harm enough of a rationale to support an environment where Zynga should inevitably push out every competitor through copying as soon as that competitor hits on a strong genre? (I hate ending a long post with this, but it’s true in this circumstance) – only time will tell. For the most part the big companies aren’t going to push the issue because the stakes are too high and the companies are doing fine in the current environment.
Update: Of course, just a few hours after writing this, Spry Fox sued 6waves lolapps over the cloning of their popular new game, Triple Town. I’ll read the complaint and write more if it gets interesting, though with Spry Fox being a rather young company, I’d be surprised if they rejected any reasonable settlement offer to pursue litigation.
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