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There is 'substantial similarity' between Triple Town and Yeti Town - U.S. court
There is 'substantial similarity' between  Triple Town  and  Yeti Town  - U.S. court
September 24, 2012 | By Mike Rose

September 24, 2012 | By Mike Rose
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    21 comments
More: Social/Online, Smartphone/Tablet, Business/Marketing



Spry Fox, developer of Triple Town, filed a lawsuit against casual game studio 6Waves Lolapps earlier this year, alleging that the company copied its flagship game when it released Yeti Town. Now it appears that a U.S. court may rule in favor of Spry Fox.

The Triple Town studio previously alleged that Yeti Town is a "blatant copy of Triple Town," with game mechanics, tutorial language, UI elements and the prices of store items all very similar to Spry Fox's game.

6Waves Lolapps filed a motion to dismiss the case shortly after the complaint was made. However, a court has now denied 6Waves' dismissal, stating that "Spry Fox has plausibly identified enough copying to state a claim for relief."

"No one would deny the many similarities between Triple Town and Yeti Town," reads the filing. "Those similarities pervade the games, from their underlying concepts to their rules to the visual appearance of their characters and backgrounds."

The filing notes that there are also plenty of differences between the two games, and that "the question in this case is not whether the games are similar (they certainly are), but whether that similarity amounts to an infringement of Spry Fox's copyright in Triple Town or an infringement of Triple Town's trademark or trade dress."

yeti town.jpgThe court says it is important to note that "Spry Fox's copyright gives it no monopoly over this idea. 6Waves (or anyone else) is free to create a video game based on the same idea."

The elements of Triple Town that are functional, rather than expressive, are not protectable, says the court, and even those elements which are potentially expressive, such as the size of the grid, are only given "thin protection."

However, it adds, "Spry Fox's allegations are more than adequate to illustrate plausibly the objectively similar expression embodied in Yeti Town." The games' object hierarchies, for example, are very similarly implemented, while the setting and theme are very similar.

"A snowfield is not so different from a meadow, bears and yetis are both wild creatures, and the construction of a 'plain' is not plausibly similar to the construction of a 'patch,' at least as the two games depict those terms," it says.

It continues, "Because the allegations of its complaint plausibly satisfy both the intrinsic and extrinsic test, Spry Fox has plausibly alleged substantial similarity between Triple Town and Yeti Town."

With all this in mind, the court has denied 6Waves' motion to dismiss Spry Fox's copyright infringement claim. Gamasutra has contacted Spry Fox and 6Waves for comment.


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Comments


Lewis Pulsipher
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Copyright does not protect game ideas, but "trade dress," expressive elements, has been used in the past against a near-copy of software, for example when Lotus 1-2-3 successfully sued "The Twin", another spreadsheet that deliberately used the same commands ("twin," get it?). Since the alleged copier in this case had access to the game before publication, the case becomes yet stronger.

E McNeill
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If these were songs, we'd call Yeti Town a cover version of Triple Town. I think the analogy is pretty apt, and we should treat games with the same rules.

See Andy Schatz's argument: http://www.gamasutra.com/blogs/AndySchatz/20110815/90007/Fishing_
the_iOS_Clone_market_and_PatentCopyright.php

E Zachary Knight
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No it would not be a cover. A Cover is when a second band sings the song of another band. It is still the same song, but often has minor alterations to match the style of the second band.

E McNeill
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Isn't that an appropriate comparison? Yeti Town is still the same game as Triple Town, but with minor stylistic alterations (here, graphics). The original authors can control the first public release and get a cut of the covers' revenue, but creative freedom is preserved.

Adam Bishop
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Cover songs are a violation of copyright if they aren't licensed by whoever owns the rights to the original. It's the same with samples. If you look at the liner notes for an album with a cover song on it, you'll find that they say that it was recorded with permission.

Stephen Chin
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"The original authors can control the first public release and get a cut of the covers' revenue, but creative freedom is preserved."

Perhaps but then the question becomes: if Yeti Town is a cover, did SpryFox get any cut of the revenue.

E McNeill
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Adam: But my understanding is that you can get a compulsory mechanical license, so you can get licensed even without the consent of the original author. That's what I'd like to see in games.

Stephen: No, and so this is an example of how things can go wrong without such rules.

I didn't make it clear originally, but I think that Yeti Town *is* exploiting Triple Town. Considering it to be a "cover version" would be *more* restrictive, but only in palatable ways.

Kenneth Blaney
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I think an additional aspect to "a cover game" would also require there being a pre-existing tone/style, just like how a song covered by another band has changes to match the second band's style.

So, for instance, if 6Waves had already established the Yeti as a character and then uses their own IP within the Triple Town framework... then you might be able to consider it a cover.

Lex Allen
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This is a really slippery slope. I'm not sure how I feel about this.

A lot of games are similar. For example, look at visual novels. All visual novels are extremely similar. Does that mean I can't make another visual novel? How different are platformers really?

And triple town is really just a match 3 game with left behinds from the matches. Should the original match 3 people go after them?

Is "similar" the same as "copying"?

I just don't see how this is going to hold up in court because if they do decide to stop Yeti Town for whatever reason, where is the line really going to be.

If anyone can make a game based on the "idea" according to the court. What exactly is the issue? All of the art is different. The words are all different except for "town" in the title as far as I can tell.

I don't know... Maybe if they wanted to copy, they really should have "made it their own" or something.

E McNeill
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Just because a line is fuzzy does not mean it does not exist.

Edmund Ching
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The problem lies in the circumstances of this "copying"
http://www.gamasutra.com/view/news/39892/Triple_Towns_Spry_Fox_su
es_Yeti_Town_dev_6Waves_Lolapps.php#.UGBqgY0ge30

It is not like an app gets released, got popular and another developer decides to clone it, the case here was that 6wave had private access to the unreleased Triple Town, broke off a deal and immediately released Yeti Town.

Lex Allen
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@ Edmund

I could definitely see how having access would make the copying more malicious, but from a cloning standpoint, I'm not sure how relevant that really is. Copying is copying and cloning is cloning. I don't think that it would really matter that they access to the idea, etc, unless they actually stole something.

There may have been some contract signed that also may have had something to do with it.

Jeff Alexander
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Duplicate all the mechanics, the numeric constants, and the tutorial script of a game, but redraw all the art and replace the sound effects. Is it truly fuzzy whether you've cloned or copied?

Greg Lastowka
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It's a big copyright win for Spry Fox, imho. And there's some very interesting stuff about copyright in game mechanics to be found in the opinion. That said, it's a Ninth Circuit district court ruling with a procedural posture that is favorable to Spry Fox, so we'll have to see where the law goes on copyright & clones ultimately. If I were EA or Zynga, though, I'd be reading this one closely.

E Zachary Knight
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"bears and yetis are both wild creatures"

You heard it here folks. Yetis do exist.

All seriousness aside, This is an interesting case, far more interesting than the Zynga/EA case. Here we have two relatively small companies battling it out to stake a copyright claim. I don't think copyright has much hold over the case. I think the more pressing issue is that of 6Waves having early access to Triple Town.

Lex Allen
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Yeah, I would agree that it's really interesting because small companies normally don't go after each other. I wonder if Spry Fox actually lost money because of the competition? Sometimes games help to promote each other. For example, my game sales often increase slightly when other people release similar visual novels.

The whole response from 6waves seems like they did a crappy thing and they knew they were doing a crappy thing, but as far as I know, Yeti Town didn't do very well.

If they were doing better than Triple Town, I could understand the lawsuit, but they had layoffs...

http://www.theverge.com/gaming/2012/3/19/2885438/yeti-town-6waves
-lolapps-escalation-layoffs

Luis Blondet
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A smaller company copying the Zynga model. It is important that companies using predatory and unethical practices do not get any support from the public or press and that they fail miserably. This will take away the incentive to consider them in the first place but we as a society must not tolerate it.

I hope Spry Fox sues Lolapps for every penny they can. Business people only understand punishment in the form of cost.

Saul Gonzalez
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When people say the "idea" behind Triple Town should not be protected and that anyone should be able to make a clone, I'm guessing they mean the core mechanics, the specifics of the rules where if you match 3 objects you get a higher level one, and you have bears wandering around and such.

What worries me is that people are treating a set of mechanics that took considerable design and playtesting effort to create and label it an "idea" that anyone should be able to profit from. Why should I invest thousands of dollars in man-hours to create something that professional fast-copiers will steal from me? It has been already been proven that cloners have the resources to crowd out the original game.

I believe it's okay if someone makes a game based on the same "match-3 & evolve" concept. I think it's wrong if someone copies the design wholesale, including the exact balancing parameters. In fact, balancing parameters and design specifics seem very close to the kinds of chemical formulas and schematics that do get legal protection.

Ian Uniacke
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Here's the thing. Your great idea needs to become popular before the cloners will consider cloning it. They literally couldn't have the resources to clone every game that goes on the app store. Therefore there is a natural lead in period where you will need to make a considerable sum of money before your game would be cloned.

I'm not saying I agree with the cloning (I'm also not saying I disagree). But I think there is reason to believe that this is more about the cream of the money not about making your investment back (many fold).

Saul Gonzalez
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My point is that lead-time is drastically shortened and nullified by professional cloners that contribute nothing. Sometimes the cloners are too late (Dream Heights) sometimes they do considerable harm (Radical Fishing).

Innovation is so hard and so beneficial that it should be rewarded to the utmost degree that doesn't hurt other innovators. Incumbents using their position to limit up-and-comers and stay thru no effort of their own is a market failure.

The U.S. patent and copyright systems have been warped beyond usefulness, but that doesn't mean that the ideas at their core are wrong.

Llies Meridja
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Triple City (Still available on Google Play as fo the date of this comment) is yet another blatant copy of Triple Town. Spry Fox should go after IFingerTip in the same way they did here, although it would be interesting to see if they can go after a Chinese company.


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