Copying Game Designs: Is It Legal?The recent news about NimbleBit's Tiny Tower game being the subject of sincere flattery from Zynga has created quite a lot of commentary in the industry and among fans. NimbleBit, a three-man team in San Diego, created Tiny Tower, which Apple chose as its Game of The Year 2011 for the iPhone. Last week, Zynga launched Dream Heights in the Canadian version of the Apple App Store, and NimbleBit posted a letter to Zynga which included a series of images from both games, showing the remarkable similarities in the two designs. NimbleBit's sardonic letter and images have made the rounds of game sites and brought up the question: Is copying a game design legal?
This turns out to be a complex question, which involves several areas of intellectual property (IP) law. Generally, IP can be protected in three ways: Trademarks, copyrights, and patents, which in the United States are all governed by the United State Patent & Trademark Office (USPTO for short). A patent covers a new or useful invention, which may be a device but can also be a business model or software (among other things). A trademark protects a name you use for a product (or a service); this can be a name, or an image (a logo) or both. A copyright is granted on an original work fixed in a tangible medium of expression; this covers written works, artistic and musical works. Patents are expensive to acquire and can be difficult to approve; generally they are not sought for games.
With that background, IndustryGamers asked attorney Mark Methenitis, who writes the video game law blog Law Of The Game, to comment on the Tiny Tower/Dream Heights situation.
IndustryGamers: Does it look like Zynga has done anything actionable here?
Mark Methenitis: In short, no. But that's better explained through the answers below.
"If Donkey Kong could have prevented others from using the Jump mechanic, or if The Legend of Zelda could have captured the adventure game design, we likely wouldn't be where we are today."
IG: As long as you don't use someone else's trademark, or their copyrighted text or artwork or code, is it legally OK to copy someone's game design?
MM: This gets to be more complex. Clearly, use of a trademark would be trademark infringement. To understand copyright infringement, it's important to understand the nature of copyright itself. That is, it protects the expression, not the idea, of the work. In a game, that expression is both the source code and the complete audiovisual work. So, unless you either steal the underlying source code, or take the time to copy the work to a pretty complete level, it's not infringement. These social media cases have become a bit unusual, because within the broader social genre, there have emerged a number of subgenres (farm games, tower games, zoo games, restaurant games, etc.) that are narrow enough that they all do look pretty similar. In fact, even Tiny Tower is based on a earlier tower genre, albeit one that was more popular in other countries. (Other articles have cited many of these games, though the title names escape me.) These narrow subgenres may be kind of like a growing pain for the social game space.
IG: Is there any way to legally protect a game design (that is, how a game plays, not the precise artwork or text or sounds)?
MM: That would be the object of a patent, and to be patentable it would have to be a novel, or new, game mechanic. There have been cases on this, such as the Crazy Taxi case, where a patented mechanic was used without a patent license and thus was a patent infringement (see Sega v. Fox Interactive).
IG: Could NimbleBit open themselves up to legal action if they were to say “Zynga copied our game” in straightforward language?
MM: There wouldn't be much of a claim here either. Zynga would have to claim something like defamation, which seems unlikely to succeed. Plus, Nimbelbit kind of already said just that with their infographic.
IG: Do you think current copyright and trademark law offers sufficient protection for game designers, or should it be extended in some way to protect game designs? Or is it better to handle things like NimbleBit did and use the copying to create publicity?
MM: I think the copyright/patent dichotomy goes as reasonably far as you can in this regard. If you could really prevent reuse of mechanics, it would likely stifle growth. Think back to the 8-bit days (or earlier). If Donkey Kong could have prevented others from using the Jump mechanic, or if The Legend of Zelda could have captured the adventure game design, we likely wouldn't be where we are today. If anything, the inability to protect mechanics without going the patent route forces game designers to continue to innovate to move ahead of their competition. To make money with, for example, “yet another farm game,” it needs to be a better farm game, not just a clone.
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The bottom line is that there is really nothing a developer can do about another developer using elements of their game design, or even the whole design, as long as no code was copied, or artwork or text. As Methenitis points out, this encourages designers to keep innovating, and to stay one step ahead of the competition.
Isn't this unfair to the small developer, though? Is NimbleBit about to be crushed by the Zynga juggernaut? This may have been the case when games were only packaged goods. A small developer could be easily outspent by a large company who could get their game in all the stores, in prime retail position, and put ads in all the magazines. A small developer would struggle just to pay for thousands of boxed game inventory, not to mention getting a sales force to sell the product into retail chains, and then ship them and deal with returns.
The market where this is occurring is the App Store, however, and the playing field is much more level. NimbleBit has the big advantage here, because Apple already selected their game as Game of The Year. That's marketing that Zynga just can't buy. Zynga will be able to cross-market their game in other Zynga games and thus gain considerable sales that way, but it's not at all clear that any of those sales would come at Tiny Tower's expense. When the games are free or only a dollar or two, people may acquire both of them. Then they'll end up playing the better one. The adroit use of social networks to get their story out has helped NimbleBit achieve even better visibility for their game. Zynga's copying their game design will probably help NimbleBit much more than it would possibly hurt them.
What about Zynga? Does this hurt them? To a certain extent this news merely reinforces a common opinion, that Zynga is well known for copying game designs. (This has certainly been bolstered by the numerous lawsuits Zynga has been involved in over games.) It's not likely to hurt Zynga's sales, though, since the number of people who care about the creativity of a game company are vanishingly small compared to Zynga 230 million+ monthly active users.
The lesson for game developers is that copying a game design isn't actionable, so feel free to borrow design ideas you like. And if someone borrows yours wholesale, perhaps you can make some marketing use out of it, as NimbleBit has. Fan reaction may help you much more than the copied design will hurt you.
