Nov
Spry Fox, LLC v. LOLApps, Inc. was recently settled in United States District Court in the Western District of Washington, but an initial ruling in the case offers a new interpretation on game cloning. Spry Fox claimed that 6Waves, LLC and its subsidiary LOLApps, Inc. infringed upon Spry Fox’s copyright of the game Triple Town by publishing a similar game on the iOS platform called Yeti Town. The two games have a different look and feel but share similar plot and game elements, a distinction this case rested on. In the past, cloners have gotten out of infringement suits because of a lack of visual similarity.
Tetris Holding, LLC v. XIO Interactive, LLC was a case of blatant infringement from earlier this year. The court found that XIO Interactive had infringed upon the Tetris copyright by copying the game and only changing a few minor details. While the game was a clear rip-off, Tetris was still a major defeat for cloners. This is due to the court rejecting the standard argument that there is no infringement because only the non-expressive, and therefore non-copyrightable, elements of the game were used.
In copyright, the underlying idea behind a work is not copyrightable, but a particular expression of that idea is. A spaceship and her crew exploring the galaxy is an idea that cannot be copyrighted, but Star Trek is an expression of that idea that can be. The courts have generally held that video games with the same or similar game mechanics but different graphics are not closely related enough to invoke copyright infringement. This is why cases like Spry Fox and Tetris Holding, LLC are so important. The court in Spry Fox attempted to answer the question ‘do the similarities between the two games amount to infringement?’ Spry Fox’s claims related to the rules, gameplay, and concept, but not on the artwork or other expressive elements of the game. LOLApps argued that none of what Spry Fox claimed was protectable, because those claims related to the underlying idea and not the expression of the idea.
In determining if Spry Fox has a case, the court sought to separate the underlying idea from the particular expression. It found that the plot, rules, themes, concepts, and game elements of Yeti Town were indistinguishable from those in Triple Town, despite the graphical overhaul. Spry Fox argued that, like with films, changing a few aesthetic details but retaining the same plot and overall story qualifies as infringement and that this same standard should apply to video games. The court agreed.
This is a boon for video game copyright holders because it gives a higher standard by which to litigate cases of cloning. Video game developers now have a case to point toward that shows the non-artistic aspects of a game such as its mechanics, characters, and game play should be copyrightable and no longer considered non-expressive elements.
[...] Based on the court’s opinion, which focused a great deal on the “look and feel” of the games, one could infer that if Xio had changed the expression of the game, meaning the graphical elements and certain features of the gameplay, they would not have been found liable of infringement. However, more recent cases, such as Spry Fox, LLC. v. LOLAPPS, indicate that such cosmetic changes may not be enough to avoid copyright infringement. In the Spry Fox case, the court determined in an initial ruling that the elements in Yeti Town, the allegedly infringing game, were indistinguishable from those used in Triple Town, even though the graphical representations of the gameplay were altered (also known as being re-skinned). Though this initial ruling expands the scope of what could be considered copyright infringement, it is important to keep in mind that the Spry Fox case settled before a final decision could be rendered so it will have limited persuasiveness in future infringement cases (See our post on the settlement here). [...]