About two months ago, Electronic Arts filed a complaint against Zynga, alleging that its newly released game The Ville looked far too similar to EA’s Facebook version of the Sims series: The Sims Social. EA sued pursuant to the Copyright Act 17 U.S.C. §106 and §501 which state that the rights to reproduction and distribution of a work, as well as the ability to prepare derivative works based on that work, are the exclusive right of the copyright holder and that violation of these rights constitutes infringement of the copyright. EA filed a series of videos showing the major similarities between the games. These included how the characters take showers and sleep in a similar manner, as well as how the character’s clothes, personalities (which can be chosen by the player), and directed actions are similar. For example, when a player chooses the “Tycoon” personality for their character in The Sims Social, the character counts money. In The Ville, the player can select a “Mogul” personality, and the character rubs the side of a bag of money.

Zynga’s general counsel, before responding to the complaint, acknowledged the claim and then stated that Zynga’s CastleVille, which was released before SimCity Social, is quite similar to EA’s game as well, implying that the company believe if EA can sue them for The Ville, they should be able to sue EA for SimCity Social. This showed that Zynga felt the claim was insufficient, or at the very least that they may be assuming a kind of “silent rule” of allowing gaming companies to build off of other companies “genre” of games without issue.

Recently, Zynga officially responded to the claim in three-parts, denying all of EA’s allegations. The obvious question in this lawsuit, and the question that Zynga so convincingly answers “no,” is whether or not the alleged material is protectable by copyright law under the Copyright Act, 17 U.S.C. §102, which explains what types of works can be copyrighted and which also, under §102(b), prohibits copyright protection to “any idea, procedure, process, system, method of operation concept, principle, or discovery.” Zynga’s argument is that the similarities which EA has provided to the court as evidence are really just the foundation of life-simulation games and hence fall into the category described in §102(b). Zynga feels that these similarities are too common to be protected by copyright law, especially after so many life-simulation games have been released.

The courts have not yet clearly defined this issue but the most recent and relevant case in this area is Tetris Holding, LLC v. Xio Interactive, Inc. 2012 U.S. Dist. LEXIS 74463 (D.N.J. May 30, 2012) In this case, Tetris filed suit against Xio for copyright infringement on its very popular game Tetris. Xio’s game, Mino, was the same concept, with only superficial differences. Tetris Holding, LLC v. Xio Interactive, Inc. The judge ruled in favor of Tetris mostly because the game was identical in every way, especially noting that the pieces themselves were the same shape, and in most cases, the same color. Id. This makes the games nearly indistinguishable and makes neither game more enjoyable to play than the other. The court distinguished the similarities between Tetris and Dr. Mario by stating that the falling pieces were different. While in Tetris the pieces were different shapes made up of four blocks that could turn, Dr. Mario’s pieces had always been two blocks, each of which could be any color. Id.

While no one should be surprised by the denial of EA’s allegations, this case may represent a turning point in copyright protection for video games. As the two companies head towards litigation, the question remains: where does the line for copyright protection end for video game genres? It seems to be a long held industry standard that a genre is not protected under copyright. This is evidenced by the countless versions of side-scrolling platform games and first-person shooters that are published each year. While EA has a legitimate point, that the games do look similar, you have to ask yourself what Zynga could have done to further distinguish themselves from other life simulation games. If, for example, there is another way to portray the personality of “greedy” without having money involved, then what they did instead may be considered copyright. Zynga changed the name of the personality from “Tycoon” to “Mogul” and took a much more cartoon-like feel by having a big bag of money instead of a stack of bills.

The outcome of this case is imperative to the industry as a whole. If Zynga is successful in defending its game, companies may be too free to copy elements of other companies’ games.  On the other hand if EA is successful at claiming copyright to a video game genre, creation in the industry may be stifled as each company rushes to attain monopolies for each genre of games.  It seems that no matter who wins this case, the industry may be harmed; either due to an influx of copycat games or due to a stranglehold by companies with “copyrights” on genre defining games.