Look and feel of your apps and games: two important cases on copycat apps

What's so special about Angry Birds or Tetris that makes them so lucrative? Why can't someone just create their own versions of these games? Or can they? Two recent judgments on copycat games shed some light on a fast-breaking area of the law that's important for developers to understand.

Video games are almost unique among copyrightable materials because they can be simultaneously protected under copyright law in multiple ways: the source code in which they are written is protected by literary copyright, and the look and feel are a protected audiovisual work. But there's another interesting issue about video games, which is that they simultaneously have creative and functional content: the art and music vs. the rules that make the game work. This matters: creative content can be copyrighted, but functional content can't.

At least that used to be the case.

Using Tetris as the example may make this clearer. The blocks and their shapes may be creative artistic expression. But the way they fall, what happens then they fit together and rows get cleared out, that's the rules of the game which are functional. On the old interpretation therefore the rules of the game would have been unprotectible.

It's that old distinction upon which Xio had relied. Xio created at Tetris clone. They admitted it readily. Their defense was that once you decide to create a block-falling game there are only so many ways you can do that (a legal doctrine I'll describe in a future post called "scenes à faire"), and the rules of a block-falling game can't be protected, so therefore they were legally permitted to rip off Tetris.

In a judgment issued May 30, 2012, the court disagreed. Although it did hold that the rules of the game were unprotectible, it nonetheless found that the way the rules were given life in Tetris was protected under copyright. The court therefore found the following things to be protected under copyright and held that, because Xio copied these elements of Tetris, the Xio game was infringing:

• A 20x10 game field
• "Garbage" lines that fill a row with randomly-generated blocks for you to need to clear out
• Ghost pieces along the bottom that track where a piece would fit if it dropped right now
• A preview of the next piece to come along
• Changing the piece from light to dark when it is fitted and no longer falling

To my mind this makes sense. The idea of a falling blocks game may not be original and no one should be able to stop the entire world from creating falling blocks games. And rules are functional, not creative. But once you create a game that instantiates these rules, the specific elements that give it its uniqueness should be yours alone even if they're not artistic in the ordinary sense of the word. Xio could have created a game that had a different-shaped field with no garbage lines or ghost pieces; it chose not to, and it did so because Tetris had created a nearly-optimal version of this game. Xio wanted to free-ride on Tetris, not innovate, and so the court reacted accordingly.

But what if your game implementation uses an art style all of its own, rather than being a straight copy? The next judgment to come along may have filled that gap.

Spry Fox is the developer of the popular Amazon Kindle game Triple Town. Here's how Triple Town works: 

• The game contains a 6x6 grid in which players place objects.
• When 3 identical objects connect, they disappear and are replaced by an object one level up in the game's hierarchy: grass --> bushes --> trees --> huts etc.
• There are also bears that wander around the map and block you from putting things in certain squares, but if you can trap the bear it becomes a gravestone.
• There is also a super-object that can destroy any other object, called an Imperial Bot.

Spry Fox entered into discussion with 6Waves, an iOS developer, to create a version for the iPod. They talked for a while, until 6Waves told Spry Fox that it was going to discontinue negotiations and that it was launching its own game called Yeti Town. Here's how Yeti Town works:

• The game contains a 6x6 grid in which players place objects.
• When 3 identical objects connect, they disappear and are replaced by an object one level up in the game's hierarchy: saplings --> trees --> tents --> cabins etc.
• There are also yetis that wander around the map and block you from putting things in certain squares, but if you can trap the yeti it becomes a ice cube.
• There is also a super-object that can destroy any other object, called an campfire.

Sound familiar? Spry Fox certainly thought so, and sued 6Waves for copyright infringement. And on September 18, 2012, a court held that Spry Fox might be right.

This is a big deal. Unlike Xio's game which had a very similar art style to Tetris, there is no art in common between Triple Town and Yeti Town: bots aren't campfires, tents aren't huts, etc. But even though the court held that the 6x6 game field wasn't protected, it also held that Spry Fox has taken the rules of its game and "expressed [them] with its own characters, its own setting, and more". And this expression is covered by copyright.

So when looking at Yeti Town, the court found that some of its elements may be infringing, including:

• The object hierarchy: grass --> bush --> tree --> hut is very similar to sapling --> tree --> tent --> cabin.
• The setting of the game is similar: a snowfield is similar to a meadow, bears and yetis are both animals, etc.

Yes, the court did note that there are differences between the games. But it also noted that a writer who writes a book about "Brett Cutler" and makes him an Alaskan gold miner can still be found to have infringed the plot of Gone with the Wind.

And it's this last point that, although it's consistent with other areas of copyright law, is the biggest development. Although creative content has been inspired by the stories that came before since almost forever, purely superficial changes aren't enough in other creative endeavors to avoid infringement suits. But this principle has never been applied to video games in this way. Instead, video game cases have always focused on things like changes to the audiovisual elements to determine whether there was infringement. For the first time, a court has looked deeper, at the grammar and structure of the game, and found that there is a protected expression there too.

The Spry Fox judgment isn't a final decision on the merits of the case. 6Waves hasn't even had to defend yet. But things keep going Spry Fox's way two things are clear. If anyone used to think that the various app stores were full of knockoffs, I suspect they are about to have an opportunity to change their mind. And any developers that may have made their fortunes by producing ripoffs and clones, they had better put some of that money into their legal budget pretty fast.

LINKS:
Sunstein law article on Spry Fox, also containing screenshots:
http://www.sunsteinlaw.com/publications-news/news-letters/2012/10/Schecter_201210.html
Spry Fox v. LOLapps (6Waves is also a defendant but the case is reported like this):
http://www.sunsteinlaw.com//media/show_temp.pdf
Tetris v. Xio:
http://scholar.google.com/scholar_case?case=7039389566875417792&hl=en&as_sdt=2&as_vis=1&oi=scholarr