Small game developer Spry Fox has filed a lawsuit against 6Waves Lolapps over the alleged copying of Spry Fox's Triple Town game. The allegedly infringing game is Yeti Town, which was developed by Escalation Studios, the Dallas developer acquired this month by 6Waves Lolapps.
In a blog post this morning, CEO of Spry Fox David Edery detailed their decision to file suit. “This was a difficult decision for Danc and I. We are not enthusiastic about the prospect of spending our time in court as opposed to making games. And in general, we believe that only in the most extreme circumstances should a video game developer resort to legal action in order to defend their creative works — the last thing our industry needs is frivolous lawsuits. Unfortunately, it is our opinion that 6waves has behaved in a reprehensible and illegal manner, and we can not, in good conscience, ignore it.”
The lawsuit filing, which can be seen here, notes that the release of Yeti Town took place while Spry Fox was in confidential negotiations with 6Waves over publication of Triple Town on Facebook and other platforms. 6Waves broke off the negotiations with an email from Dan Laughlin, Executive Director of Business Development, in which he said “I have some news, which I'm not excited to share with you. I need to back out of any further discussions on Triple Town. We've just published a game on iOS that you're not going to like given its similar match-3 style. Wish this wasn't happening, but it is, and there wasn't anything I could do about it, despite my attempts. I respect you and your studio immensely, and wish you guys nothing but the best. And hope you can get Playdom to give you everything you want and more for TT on FB.”
Triple Town is on the left, Yeti Town is on the right.
Spry Fox's suit alleges that Spry Fox and 6Waves signed an NDA on July 8, 2011, and entered into negotiations for more than six months, after which the above email was received, ending the negotiations. 6Waves was given access to a closed beta of Triple Town during this time period. Spry Fox claims two causes for action; one is that “LOLApps deliberately and intentionally copied the game play, rules, player interaction with the game, and, most importantly, the virtual store and stock of Triple Town as described. LOLApps copied Triple Town’s layout and arrangement, visual presentation, sequence and flow, scoring system, and Triple Town’s overall look.”
The second claim is that 6Waves Lolapps has engaged in unfair competition and false designation of origin. Essentially, the argument is that Yeti Town so closely resembles Triple Town (in its logo, visual style and gameplay) that “LOLApps’ violation of Spry Fox’s common law trademark rights is likely to cause confusion, mistake, or deception among customers in violation of the Lanham Act.” That's the basic trademark law that prohibits trademark infringement, trademark dilution, and false advertising.
One of the reasons we may be seeing more cases like this and the NimbleBit case is the relative ease of creating basic mobile apps and social games. When a successful game can be copied in the space of a few weeks or a month, the incentive to copy is much greater than with a typical console or PC game where development, even if you copied someone else's design wholesale, would take years.
Copying, with sufficient changes to avoid legal action, is a longtime strategy in software development. There have been many successful PC titles that started as a copy of some useful Macintosh utility, and vice versa. Today, it's even easier to decide that a successful iOS game would work just as well on Android (or even on iOS again!), when the cost of doing so is a few weeks of development effort. There's no capital cost for inventory involved, getting on the App Store shelf is trivial, and perhaps you can ride the wave of popularity or take advantage of user confusion. It's certainly not a strategy to be admired by those who respect creativity, but that audience is probably vanishingly small compared to the overall potential audience.
The catch, of course, is that copying that strays too close to the original risks a lawsuit. Usually the time and expense of a lawsuit is more than a small developer can bear, especially when the outcome is uncertain. Sometimes, too, publicity can aid the original creators and keep the copiers from capitalizing too much on their efforts. You need look no further than Cut the Birds to see that the strategy of copying a hit, or more than one hit, can pay off.
Update: 6waves Lolapps made the following statement, according to Venturebeat: “Lolapps is disappointed that David Edery has chosen to file a lawsuit, and believes his claims are factually inaccurate. We respect others IP and did nothing to violate any contracts our team had in place. The copyright infringement claims are unjustified."
