An illustrated version of this post can be found at: http://dlr-law.com/3/post/2012/08/zynga-slammed-again.html
Zynga is no stranger to lawsuits. This past year, they’ve averaged one a month, and in July alone two separate investors sued them over alleged SEC and securities fraud violations. But in the area of copyright and trademark litigation, their lawyers have dished out nearly as much as they’ve taken.
What makes this different is that Zynga’s been fighting in the legal welterweight division for the most part, beating up smaller guys trying to make it big in the Facebook app market. But their opponent this round is Electronic Arts, a heavyweight capable of going the distance. Even more important is that EA has the emotional advantage. After all, Zynga is messing with their crown jewels.
A Critical Game and Market for EA
In an earlier post, I mentioned that EA intends to compete with Zynga in the Facebook game market. To effect this goal, they've poured millions of dollars into The Sims Social, and in August 2011 they proudly released the Facebook version of this 150 million unit selling franchise. At one point, The Sims Social became the second most popular game on Facebook, surpassing even Zynga’s prized Farmville.
Not to be outdone, Zynga released The Ville in June 2012, a game so close in look and feel that several reviewers reported the two were nearly identical. Gamezebo’s review summarizes EA’s allegation: “Even though the game (The Ville) does offer a few unique ideas, the moments wherein Zynga does rip-off EA/Maxis wholesale are as obvious (and unattractive) as a centipede with sixty-one legs. It’s hard to play The Ville without feeling some wholesale deva vu.”
My guess is that this will prove to be a bloody, protracted battle, and in the end it will come down to the law, to whether EA can convince a jury that Zynga stole their game. To understand how this may play out, we need to digest a few legal concepts:
You can’t copyright ideas
Unlike what your mother may have told you, copyright law doesn’t protect ideas. You can’t copyright that interesting idea that's been swimming in your head because, well, it's in your head. Legally speaking, it isn’t fixed in a tangible form (meaning that it isn’t a book, computer code, film, music score, etc.), so it's not protectable. If ideas could be copyrighted, then every movie ever made about World War II would be subject to litigation. Every tragedy ever told would be worth millions to Shakespeare's heirs. Microsoft would have a field-day suing people over flight simulator games.
EA isn’t suing Zynga because Zynga created a game with people living in a cyber world. A lot of games do that, including every fantasy role-playing game you’ve ever played. EA is suing because they believe Zynga had access to their unique property and copied it.
Copyright infringement elements applied
To prove copyright infringement, EA will need to show that Zynga had access to their protected material and copied it. Pretty simple idea, but it gets complicated quickly.
To show the access element, EA is claiming that Zynga hired away several people who had access to EA’s confidential information, including among the suspects EA’s former Chief Operating Officer, John Schappert, a fifteen year EA vet responsible for EA’s social gaming strategy. EA is also pointing their finger at Jeff Karp (former head of EA’s casual division) and Barry Cottle (former EA Senior VP in charge of social, mobile, and online gaming), both of whom now work for Zynga. EA contends that these gentlemen had access to design, development, and strategic information about The Sims Social.
While EA looks strong on the access element, they also have to show that Zynga copied their original expression, which is much more difficult.
In order to show that Zynga copied The Sims Social, they’ll need to show either direct, verbatim copying, or that the two works are substantially similar. In EA’s complaint, they employed several colorful side-by-side screenshot comparisons to show just how similar the two products are. It's fascinating reading, and EA lays out a roadmap of several nearly identical game elements, including the number and type of personalities a player can choose from, clothing types, home choices, fanciful objects including yoga matts and television choices, player movements, and more.
While all this looks favorable to EA, the ultimate decision on whether or not Zynga copied EA’s protected work will come down to what a reasonable person thinks is substantially similar, and therein lies the problem.
The law provides a fairly simple benchmark for whether something is substantially similar: whether or not an ordinary reasonable person would conclude that the defendant unlawfully appropriate the plaintiff’s protectable expression. To understand what that means, a simple example may be helpful:
Back in the infancy of video gaming, Atari was king of the hill. One of their most popular games in the early-80s was a game called Asteroids, which pretty much ruined my chances of saving early for retirement. Because of the technical limitations at the time, it wasn’t visually impressive, but it was quite fun to play, just as catching lightening bugs and putting pennies on railroad rails was a kick in the pants for our Cro-Magnon ancestors.
In Asteroids, players navigated a small triangle (which we imagined was an awesome looking spacecraft) and shot at a series of irregular polygons (which we likewise imaged to be gigantic space rocks) floating around in two-dimensional space. On impact, the rocks would either break apart or disappear completely. Atari made a lot of money, one quarter at a time, with Asteroid machines resting comfortably in every bar, hotel lobby, and 7-11 store across country. Then along came Meteors.
In Meteors, players did the same thing, except that the rocks were shaped differently. It was colorized as well. Atari sued for copyright infringement, of course, alleging that Meteors was substantially similar to Asteroids. The defendant, Amusement World, claimed that Atari couldn’t copyright the idea of shooting space rocks. They further argued that Meteors used different sounds and movements, and as a result Atari didn't have a case.
Surprisingly, the court ruled in favor of Amusement World, even though the games contained a number of similar elements. The court reasoned that Amusement World could make a game that involved the idea of shooting space rocks, and in doing so the similarity was unavoidable. The court cited a few noteworthy differences between the games, too: Meteors was faster paced, the feel was different, and it was considerably more difficult to play. Ultimately, Amusement World won because the court held that it was okay to leverage an idea, provided the game was different enough.
Applied to EA v. Zynga
The law is more complex than this, but the example provides insight into EA’s challenge. This isn’t a slam-dunk for EA. On the other hand, as mentioned earlier, EA is no lightweight. My guess is that they’re in this one for the long haul. The Sims is a key Electronic Arts franchise. EA desperately needs to establish and maintain a presence on the Facebook platform. And it appears, at least according to EA’s lawsuit, that the Zynga’s dog hasn't been caught stealing any ol' chicken. This is the goose that lays EA's golden eggs.
In the next post, we’ll discuss a key defense for Zynga called scenes a faire. Follow on Twitter or stay tuned here. @rogersdanlee. dlr-law.com.
Copyright, Dan Rogers, 2012
 Draper v. Zynga, 7/31/2012 (SEC violations); Destefano v. Zynga, 7/30/201 (Securities Fraud); Lexos Media v. Zynga, 7/24/201 (Patent infringement); Digital Reg of Texas v. Adobe 4/20/2012, (Patent Infringement against multiple defendants, including Zynga); Gametek v. Facebook (Patent Infringement against multiple defendants, including Zynga); Personalized Media v. Zynga, 2/10/2012 (Patent infringement); Alpha Investments v. Zynga, 1/17/12.
 Sources from EA’s Complaint: http://kotaku.com/5921307/zyngas-new-take-on-the-sims-launches-tomorrow-on-facebook;
 Atari v. North American Phillips.
 Atari, Inc. v. Amusement World, United States District Court, District of Maryland, 1982, 547 F. Supp. 222.