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 full post cites the oft-forgotten Atari v. Amusement World case from 1982 — quick, which is Asteroids and which is Meteors?
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.
This gives pause to us Monday Morning Jurists who upon reading the complaint think Zynga is in for a rough ride. Does the absence of real world simulation games that use alternate representations of hunger than Sims Social & the Ville do attest to the difficulty?
But in another suit from the game industry’s early days of 1982, Atari v. North American Phillips, the court found for Atari,
Specifically, the test is whether the accused work is so similar to the plaintiff’s work that an ordinary reasonable person would conclude that the defendant unlawfully appropriated the plaintiff’s protectible expression by taking material of substance and value. Krofft, 562 F.2d at 1164. Judge Learned Hand, in finding infringement, once stated that “the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same.” Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960). It has been said that this test does not involve “analytic dissection and expert testimony,” Arnstein, 154 F.2d at 468, but depends on whether the accused work has captured the “total concept and feel” of the copyrighted work, Roth Greeting Cards v. United Card Co., 429 F.2d 1106, 1110 (9th Cir. 1970).
“K.C. Munchkin” was simply too close to PAC-MAN — and described as such by sales clerks (ahem, the people that used to sell video games to the public). And on this grounds Zynga appears to be on thin ice. In discovery will internal documents attest to making a game like the Sims? Described as such in outgoing marketing materials?
Our client Fred Wester probably opines for many when he tweets “When EA Sues Zynga I’m not sure who to root for”. Scylla or Charybdis? In the end, there was not an insufferable spate of Asteroid or Pac Man knock offs after the mixed lawsuit record of 1982, but capital intensity to build and distribute a game was higher. You had to innovate. Many games had a close (sometimes very close) cousin, but we weren’t playing 27 variations of Space Invaders. Victory by Zynga almost assures a stream of copycat games, and victory by EA will slow them down – irrespective of the justice that in this observer’s opinion is on EA’s side.
Companies once in need of capital to market & distribute their games will need it for lawsuits from well-capitalized entrenched players and that will be a shame for the game industry but one that probably will force more wildly innovative titles that can avoid the lawsuit tussle.