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Don't Tread on Spry Fox!
by Tom Buscaglia on 01/30/12 07:42:00 am   Expert Blogs   Featured Blogs

The following blog post, unless otherwise noted, was written by a member of Gamasutra’s community.
The thoughts and opinions expressed are those of the writer and not Gamasutra or its parent company.


    My law clerk, Andrew Berrier, sent me an email last week asking what one could do if a client came in with a complaint similar to Nimblebit’s outrage at the cloning of its Tiny Tower by Zynga.  As General Counsel for indie developer Spry Fox, I had some very definite ideas of how to handle a situation like this.  But until Spry Fox’s announcement of its law suit against 6waves/LOLapps for its blatant copyright infringement of the critically acclaimed Triple Town today, I couldn’t say anything about it.  Now that the “bear is out of the cave,” I think it appropriate to go into the differences between Zynga’s clone and 6waves copy and why one is actionable and the other is not.

    Absent a patent, while copyright law does not protect the idea, it does protect the protect the expression of that idea in a tangible form.  It appears that Zynga only parroted numerous elements of the core gameplay of Tiny Tower.   But, Zynga has been hit with law suits for infringement before and, it appears, took great care not to do any direct copying of the content and limited its clone to gameplay only.  As reprehensible as I find this, it was probably legal.

    With Yeti Town, 6waves/LOLapps copied not only the core gameplay but also the specific details of the expression of those ideas from Triple Town.  The complaint filed Friday by Spry Fox shows some of the numerous examples of that copying:

•    Descriptions of the each element of the gameplay in the tutorial;
•    The identical placement on the screen and identical display of a pending combination of items in the game and the resulting item from that combination;
•    The unique 6x6 grid layout with a storage “stash” located in the upper left corner of the grid;
•    The layout and content of the game award screen when a game is finished;
•    The “in game: store elements including the same order of available items, the identical number of “coins” and the identical limited number of each element available in the store, unique to Triple Town.

Though not mentioned in the complaint, other unique elements of the game, such as the manner in which potential combos pulse to show their combo elements and multiple scoring for 4 and 5 items combos were also copied. 

    As described in the review of Yeti Town, one of the many industry articles decrying Yeti Town as a copy, “The game is essentially Spry Fox’s Facebook and Google+ hit Triple Town, but with a different theme, replacing bears with yetis and castles with skyscrapers.”  Or that described Yeti Town as follows, “Unfortunately for Yeti Town, the only substantial difference between it and Facebook’s Triple Town is the platform it’s on. Otherwise it’s the exact same game, only this time with snow.”  Yeti Town a copy of Triple Town?  You bet it is!

    Even more damning is the fact that Spry Fox and 6waves/LOLapps were in confidential discussions under a mutual NDA in July, months before the public release of Triple Town on Facebook and Google+.  6waves./LOLapps had pre-release access to the Triple Town closed beta of Triple Town and were well aware of Spry Fox’s intention to release the game on numerous platforms, including iOS.  And, after its release, Spry Fox provided confidential information on the performance of the game on Facebook and Google+.   6waves/LOLapps continued to feign good faith negotiations with Spry Fox under the NDA at the same time it was having Yeti Town developed. 

Obviously, they had been developing the copy for months prior to its release, all the while concealing the fact from Spry Fox.  As noted in the Complaint, 6waves/LOLapps Dan Laughlin, Executive Director of Business Development, sent a message to David Edery at Spry Fox the day Yeti  Town was released in the App store terminating negotiations, informing him of the launch of Yeti Town, apologizing to David for Yeti Town and expressing his personal regrets that it had been done.

In an interview on Gamasutra last week, 6waves/LOLapps had the unmitigated gall to claim that Yeti Town was independently developed by Escalation Studios, the developer it hired (and recently acquired) as a result “independent efforts.”  This disingenuous defense of their illegal actions reflects an arrogant lack of respect for the people who actually contribute original content in games and their intellectual property rights.  Unbelievable!

    I cannot express how proud and honored I am to be associated with Spry Fox as David and Danc's General Counsel.  Spry Fox is a real deal indie studio dedicated to creating unique original games that contribute to the art of games and with the conviction to do the right thing and take action to protect their intellectual property.  They are painfully aware that as true innovators they set themselves up to be cloned, which has already happened with many or their games.  But copying a Spry Fox game will not be tolerated.  So those no talent arrogant big boys who think its OK to make a living ripping off the creative geniuses in our industry take note - “Don’t Tread on Spry Fox!”

GL & HF!

Tom B

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E McNeill
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So gameplay cloning is still unassailable. Gotcha.

Edit: Actually, if clones are prevented from doing things like offering equivalent items for identical costs, it may cause them to differentiate themselves on a substantive gameplay level.

I hope that argument helps win the case, rather than the less gameplay-oriented, UI layout arguments.

Lars Doucet
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I'm generally not one to jump on the anti-cloning bandwagon, but I think the particular details of this case set it apart, assuming the allegations are true.

I certainly am no laywer, but I'm pretty sure there's clear evidence of violating their NDA at the very least, no? Creating a game with a lot of similar elements from a distance after the original is released is one thing, but pretending to be a partner, exploiting confidential info, and then doing a point-for-point remake with a new skin is a different animal entirely.

E Zachary Knight
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Yeah, it is that NDA and pre-release access to the game that sets this case apart from other cases of cloning. If they had not signed an NDA to get pre-release access to the game, then I would be siding with 6waves on this one.

However, there is still some time for more evidence on either side to come out to shift the perception.

Ted Brown
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Thanks for outlining the details of this case, Tom. It's a good article to have on hand when trying to describe what is actionable, and what is merely the legal, re-use of an idea.

Michael DeFazio
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I'm hoping 6waves/LOLapps use the:

"...that little bitty ting... it's not the same" - Vanilla Ice Defense

Jeffrey Crenshaw
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"As reprehensible as I find this, it was probably legal."

That brings up an interesting topic for discussion: What can ethical developers do, within the law, to band together and combat this trend? Consumer awareness actions? Game Industry treaties? Blacklist websites?

Forrest Smith
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"6waves/LOLapps continued to feign good faith negotiations with Spry Fox under the NDA at the same time it was having Yeti Town developed."

If 6waves LOLapps performed an illegal action in regards to the NDA why is there not a 'breach of contract' lawsuit? It seems like that would be fairly cut and dry while copyright infringement resides in a much more gray area.

Lars Doucet
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It's likely we're dealing with both here. Has anything been stated publicly about that, Tom?

Andrew Traviss
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It's unlikely that this would violate the terms of an NDA, since the focus on an NDA is to prevent the dissemination of privileged information to third parties, and in this case 6waves/LOLapps were just using the information themselves.

Travis Flynn
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Two things come to mind: First, about whether gameplay elements alone can be protected. I think it's difficult to make a case but there are many arguments to be made that gameplay can be copyrighted. Two things in history to look at would be board game law suits, where imitations used essentially the same rules, and the recent Blizzard v. MDY lawsuit.

Even though the opinion in Blizzard v. MDY was a mess, it outlined elments which were protected by copyright, and the court divided the elements in two: The literal elements - the visual and audio assets that make up WoW, and the Non-literal elements: The gameplay and player interaction that characterized the game. While the opinion isn't binding, and incredibly convoluted, the analysis could be applied to an argument that the gameplay elements actually are protected in copyright. Simply re-skinning the paint on the game isn't enough to save you from copyright infringement.

Not only that, but with respect to Tiny Tower, Zynga also has a history of condemning gameplay clones from Vostu which were essentially reskinned versions of their games. It seems like there should be something to estop them from making the contrary argument that it's fine when they reskin games. (though, admittedly I don't follow the Vostu issue that closely, and perhaps they actually copied code.)

The second thing that comes to mind is Trade Secret, particularly in the case of Triple Town. This is an ideal situation for a trade secret action. Trade secrets are a form of IP protection when Copyright or Trademark or Patents are not appropriate. So, in this case if the game play elements were not protected by copyright, a trade secret cause of action (beyond a mere breach of the NDA) would be appropriate.

What would need to be shown is 1) information that is independently economically valuable - the gameplay elements are definitely information, and 2) the subject of reasonable efforts to maintain its secrecy - The NDA is evidence of such efforts. Finally, 3) misappropriation - this would be the release of what amounted to a clone of the game shortly after. It should be noted that misappropriation is broadly defined, and use of a trade secret in an unauthorized manner by a party, even if they legally had access to the trade secret can still constitute infringement.

This is, generally speaking, and should not be treated as legal advice. Don't sue me, etc.