Wednesday 8 August 2012

The idea/expression dichotomy in the virtual world

Last Friday, Electronic Arts (EA) sued Zynga in the US District Court for the Northern District of California, alleging that Zynga's new game, The Ville infringes copyright in EA's The Sims Social. The online games, which are both played on Facebook, involve players creating characters who live, work and interact with each other in the virtual world.
EA has said that The Ville is "unmistakably" similar to The Sims Social and that the games are "largely indistinguishable" to the casual observer, but that the similarities go beyond the superficial. EA have said that Zynga's "design choices, animations, visual arrangements and character motions and actions have been directly lifted from The Sims Social".

Zynga was quick to respond, saying that EA doesn't understand copyright and that it plans to defend its rights. Further, Zynga points out that EA's recently launched SimCity Social is very similar to Zynga's CityVille game.

The question of how much can be copied turns on the idea/expression dichotomy, which says that ideas are not protected by copyright, only expressions of ideas are protected. This is a concept that has been analysed in the world of literature, film and photographs however there is little case law in relation to video games, where the complexity of the games combined with the fact that players have direct input on what the game looks like and how it plays out make the analysis more difficult.

An early case in this area was Atari v Phillips. Atari made Pac-Man, a game that many readers will surely remember. Phillips released a similar game called Munchkin, and were subsequently sued by Atari. In 1982, the court held that Phillips had copied Pac-Man and that it had made alterations that "only tend to emphasize the extent to which it deliberately copied the Plaintiff's work."

The ruling was one of the first to establish how copyright law should apply to video games.

In 1994, the courts found in favour of the copier when Capcom sued Data East alleging its game Fighter's History infringed copyright in Capcom's Street Fighter II. In this case the court held that since Capcom’s characters were themselves based on previously existing stereotypes and martial arts disciplines there was no infringement.

Most recently in Tetris v Xio Interactive (which Eleonora reported on here) the district court of New Jersey said that: "The doctrine is simple to state - copyright will not protect an idea, only its expression - but difficult to apply, especially in the context of computer programs."

The court went on to say that "The style, design, shape, and movement of the pieces are expression; they are not part of the ideas, rules, or functions of the game".

EA has made a very detailed claim, which specifies for instance that The Ville uses the same skin tone colours as Sims Social and that the refrigerators in the virtual houses are so similarly drawn that they overlap nearly perfectly. On that basis it seems likely that Zynga is infringing the expression of EA's game as well as the idea. If the case does make it to court without settling the judgment will offer much needed clarity in this area of the law, and could have a huge impact on the masses of lookalike games on the market.

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