Reports on social network game developer Zynga usually concern its stock price. However, over the past few weeks, it has gotten more attention for the source of ideas than for its games.

Developer NimbleBit, creator of the popular iOS game Tiny Tower, released an open letter to Zynga’s entire staff outlining how its upcoming game, Dream Heights, is very similar to Tiny Tower.  Since the letter was released, the video game community and Zynga have debated publicly over whether copying games is a bad thing for the industry, and how much is appropriate or expected.

Zynga’s CEO, Mark Pincus, defended Zynga’s copying, suggesting that they “…don’t need to be the first to market… [but] the best in market.” Zynga has compared Tiny Tower to the Maxis classic SimTower, but commentators say that the gulf between these games is much greater than that between Tiny Tower and Dream Heights.

So could Zynga be liable for its copying? Recently, in LaChapelle v. Fenty, 2011 WL 2947007 (S.D.N.Y. 2011), the court stated that “[t]o prove infringement under the Copyright Act, ‘a plaintiff with a valid copyright must demonstrate that: (1) the defendant has actually copied the plaintiff’s work; and (2) the copying is illegal because a substantial similarity exists between the defendant’s work and the protectable elements of plaintiff’s.’” Id. at 2 (emphasis in original, internal citations omitted). The court described substantial similarity as “…whether an ordinary observer, unless he set out to detect the disparities, would …overlook them…” Id. In the Second Circuit, “the court is principally guided ‘by comparing the contested design’s ‘total concept and overall feel’ with that of the originally infringed work.’” Id. at 3.

Though the games could appear to be similar to a casual observer, video game developers have a good deal of latitude in how they choose to make their games. There are cases that deal harshly with those who attempt to simply copy games (See Nintendo of America, Inc. v. Brown, 94 F.3d 652 [9th Cir. 1996]), but infringement suits between developers are less common. An early case addressing the issue is Atari, Inc. v. Amusement World, Inc., 547 F.Supp. 222. (D.C.Md. 1981). In Atari, Atari sued Amusement World for allegedly copying its game Asteroids in the creation of its own game, Meteors. Id. at 223. The court found many similarities between the two games, including the number of sizes of asteroids, the control scheme, score display, some of the “rules” of the game, and many other features. Id. at 224. The court also found several differences between the two games, including the graphics (Meteors had shaded asteroids, while Asteroids had “flat, schematic figures”), as well as some of the other “rules” of the game. Id. at 225. These similarities and differences could be analogous to the noted similarities between Tiny Tower and Dream Heights. However, the court in Atari found that the “similarities [were] inevitable, given the requirements of the idea of a game involving a spaceship combatting [sic] space rocks and given the technical demands of the medium of a video game.” Id. at 229. These similarities that were dictated by the idea fell outside of Atari’s copyright. Id. The court concluded that:

It seems clear that defendants based their game on plaintiff’s copyrighted game; to put it bluntly, defendants took plaintiff’s idea. However, the copyright laws do not prohibit this. Copyright protection is available only for expression of ideas, not for ideas themselves. Defendants used plaintiff’s idea and those portions of plaintiff’s expression that were inextricably linked to that idea. The remainder of defendants’ expression is different from plaintiff’s expression.

Id. at 230.

Dream Heights, like Tiny Tower, is a game about building a multi-use skyscraper. Both games are limited in their execution by the demands of gaming on smartphone touchscreens. However, Zynga made some important changes in its development of Dream Heights. The graphics (as seen from the comparison provided by NimbleBit), some of the menu layout, and the sound are totally different between the two games. Also, Zynga has more robust social gaming aspects in their game, which can be integrated with a player’s Facebook contacts. Tiny Tower, on the other hand, only lets players’ GameCenter friends look at their towers. The similarities between Dream Heights and Tiny Tower are analogous to the similarities between Asteroids and Meteors, which went only to the basic rules of a game of that type, and analogous to their differences, which are actually quite substantial. While Zynga has certainly lost in the court of public opinion, they are probably safe from an infringement claim.