EA-Zynga battle could mean game over for copycats

Is it cloning or copyright infringement? The case between the two video game companies could set a legal precedent in the industry.

By MSN Money Partner Aug 7, 2012 5:00PM

By Therese Poletti


Will social game copycats get some comeuppance?


A lawsuit filed on Friday by Electronic Arts (EA) against social game company Zynga (ZYGA) touches on a key issue in the development of lightweight social games: the outright mimicry of a concept of a game. At issue is whether Zynga went too far in its imitation of a popular EA game on Facebook, "The Sims Social," with its newest game called "The Ville."


If the case goes all the way to a trial, it could even set a legal precedent.


Zynga is infamous in the video game business for taking the concept of a popular game created by much smaller developers, copying it, and making it more successful. In its complaint, EA wrote that after seeing the success of EA's "The Sims Social" game, "Zynga turned to its well-known competitive playbook: 'Steal someone else's game. Change its name.' "


The suit from EA also further pressured Zynga's embattled shares, which were down nearly 70% since its IPO.


EA also makes this point in a blog post by Lucy Bradshaw, general manager of Maxis, the studio that develops "The Sims." In an astute PR move, EA is claiming that its suit is also acting on behalf of the rest of the industry.


"Maxis isn't the first studio to claim that Zynga copied its creative product," Bradshaw wrote on Friday. "But we are the studio that has the financial and corporate resources to stand up and do something about it. Infringing a developer's copyright is not an acceptable practice in game development. By calling Zynga out on this illegal practice, we hope to have a secondary effect of protecting the rights of other creative studios who don't have the resources to protect themselves."


While many in the industry are gleeful about the possibility of just desserts for a company that still riles up many in the industry, Zynga isn't alone in its copying of game ideas. In fact, in Zynga's statement on Friday, the company noted that it was "ironic that EA brings this suit shortly after launching ‘SimCity Social,' which bears an uncanny resemblance to Zynga's CityVille game," Zynga general counsel Reggie Davis said. "Nonetheless, we plan to defend our rights to the fullest extent possible."


Cloning is common
In general, copying a concept or an idea is not copyright infringement.


"In copyright law, you are not allowed to have a copyright on the process or the idea," said Greg Lastowka, a professor of law at Rutgers School of Law-Camden, who specializes in intellectual property, technology and law. "Cloning games is pretty common on the Facebook platform. And I think that this is going to be interesting because there have always been questions as to whether the cloning has gone as far as to go to copyright infringement."


But in EA's case, though, it offers many examples of how Zynga went too far copying EA's game, "The Sims Social," and it also offered examples of how its other games, such as the once-popular FarmVille, that mimicked popular concepts, also copied the look and feel of FarmTown developed by a company called SlashKey, and offered a side-by-side screen shot view.


As examples of how Zynga "copied and misappropriated the original and distinctive expressive elements of "The Sims Social," EA said in its complaint that Zynga copied "animation sequences, visual arrangements, characters' motions and actions, and other unique audiovisual elements," so much that "the two games are nearly indistinguishable."


It points to many stories in the press about "The Ville," which noted the similarities, such as our colleagues at All Things D, who wrote that the game was "shockingly similar to Electronic Arts' ‘The Sims Social,' and frankly, at times, it is hard to tell the two apart."


The case could hinge on whether EA can show that Zynga's alleged copying of details and mechanics went so far that it confused consumers.


Michael Pachter, a Wedbush Securities analyst, wrote in a note that he believed the case is a "close call."


"We agree that the direct copying of skin tone colors, for example, is a likely copyright infringement, but think that such items are easily remedied," Pachter wrote. "On the other hand, the copying of refrigerator dimensions appears harmless to us. We think that Zynga is likely to change many aspects of its game over the next several months... However, EA will likely allege that the damage has already been done."


The case proves to be a fascinating one, should it go all the way to a jury trial, as EA is requesting. And it could have implications that are wide-ranging for developers of these casual games, and especially Zynga.


"If EA wins, and there is an opinion that says this is copyright infringement, that will force Zynga to be more independently creative, rather than figure out what games are big hits," said Lastowka of Rutgers, who has also written a book called "Virtual Justice." "I'm hoping it doesn't settle, a lot of game developers are eager to get clarity on this."


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Aug 8, 2012 11:56AM
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