The past week has seen a spate of accusations of videogame plagiarism. First, Nimblebit accused Zynga of cloning Apple's iPhone game of the year, Tiny Tower, with its new game Dream Heights; it has since also noted that Glu Mobile has released two games based on similar concepts, Lil' Dungeon and Small Street. Buffalo Studios then accused Zynga of ripping off Bingo Blitz with Zynga Bingo, something Zynga CEO Mark Pincus has since denied. Another indie studio, Spry Fox, is suing 6waves Lolapps for its apparent plagiarism of Triple Town with the strikingly similar Yeti Town.
The difference between the Tiny Tower and Triple Town cases is that Spry Fox is taking legal action; Nimblebit has merely pointed out the similarities and let word of mouth do the rest. There appear to be several reasons that Nimblebit is unable to sue Zynga while Spry Fox has launched legal proceedings against 6wave Lolapps, but the most significant is copyright. While Spry Fox has registered the copyright for Triple Town, Nimblebit hasn't done so for Tiny Tower, but even if it had it would have had a tough case; US copyright does little to protect videogames.
"Copyright does not protect the idea for a game, its name or title, or the methods for playing it," US Copyright Office guidelines state. And fair enough: a trademark registration would cover a game's name, and the patent system is designed to protect ideas.
"Once a game has been made public," the guidelines continue, "nothing in copyright law prevents others from developing another game based on similar principles. Copyright protects only the particular manner of an author's expression in literary, artistic, or musical form." This opens the door for videogame copyrights, however, allowing developers to protect the written elements of their work, such as tutorials or instructions; doing so means they can protect pictorial elements as well.
Yet securing copyright for your game is far from a guarantee that you will be protected against the likes of Zynga coming along and taking your idea, or "evolving genres" as CEO Mark Pincus puts it. You have to prove that a rival developer has infringed the specifics of your copyright.
Greg Boyd, an IP lawyer with New York firm Davis & Gilbert, explains that the ultimate test of infringement is "substantial similarity. Do the items look substantially similar? I know that doesn't sound like much of a test, but it is hard to improve on it. Just think about what the deliberate fuzziness of it allows us to capture. Think about how broadly it needs to be applied - to every form of art out there."
One of the earliest videogame copyright protection suits was brought by Atari in 1982, in which it claimed that North American Phillips' game KC Munchkin infringed on its Pac-Man copyright. Despite the clone doing much to improve on Atari's game, the court found that was not enough to pass the substantial similarity test.
"It is enough that substantial parts were lifted," the court ruling reads. "No plagiarist can excuse the wrong by showing how much of his work he did not pirate." Atari was granted a preliminary injunction.
It was a landmark case, and clearly North American Phillips was not aware of the rules when it made KC Munchkin. Zynga, however, most certainly is: it paid out between $7 million and $9 million to David Maestri, who claimed Mafia Wars violated his Mob Wars copyright, and last year it sued Brazilian social game developer Vostu for "blatant copyright infringement," a case that was later settled out of court. Zynga knows what it’s doing.