Don't Tread on Spry Fox!

    My law clerk, Andrew Berrier, sent me an email last week asking what one could do if a client came in with a complaint similar to Nimblebit’s outrage at the cloning of its Tiny Tower by Zynga.  As General Counsel for indie developer Spry Fox, I had some very definite ideas of how to handle a situation like this.  But until Spry Fox’s announcement of its law suit against 6waves/LOLapps for its blatant copyright infringement of the critically acclaimed Triple Town today, I couldn’t say anything about it.  Now that the “bear is out of the cave,” I think it appropriate to go into the differences between Zynga’s clone and 6waves copy and why one is actionable and the other is not.

    Absent a patent, while copyright law does not protect the idea, it does protect the protect the expression of that idea in a tangible form.  It appears that Zynga only parroted numerous elements of the core gameplay of Tiny Tower.   But, Zynga has been hit with law suits for infringement before and, it appears, took great care not to do any direct copying of the content and limited its clone to gameplay only.  As reprehensible as I find this, it was probably legal.

    With Yeti Town, 6waves/LOLapps copied not only the core gameplay but also the specific details of the expression of those ideas from Triple Town.  The complaint filed Friday by Spry Fox shows some of the numerous examples of that copying:

•    Descriptions of the each element of the gameplay in the tutorial;
•    The identical placement on the screen and identical display of a pending combination of items in the game and the resulting item from that combination;
•    The unique 6x6 grid layout with a storage “stash” located in the upper left corner of the grid;
•    The layout and content of the game award screen when a game is finished;
•    The “in game: store elements including the same order of available items, the identical number of “coins” and the identical limited number of each element available in the store, unique to Triple Town.

Though not mentioned in the complaint, other unique elements of the game, such as the manner in which potential combos pulse to show their combo elements and multiple scoring for 4 and 5 items combos were also copied. 

    As described in the indiemobleapps.com review of Yeti Town, one of the many industry articles decrying Yeti Town as a copy, “The game is essentially Spry Fox’s Facebook and Google+ hit Triple Town, but with a different theme, replacing bears with yetis and castles with skyscrapers.”  Or Gamezebo.com that described Yeti Town as follows, “Unfortunately for Yeti Town, the only substantial difference between it and Facebook’s Triple Town is the platform it’s on. Otherwise it’s the exact same game, only this time with snow.”  Yeti Town a copy of Triple Town?  You bet it is!

    Even more damning is the fact that Spry Fox and 6waves/LOLapps were in confidential discussions under a mutual NDA in July, months before the public release of Triple Town on Facebook and Google+.  6waves./LOLapps had pre-release access to the Triple Town closed beta of Triple Town and were well aware of Spry Fox’s intention to release the game on numerous platforms, including iOS.  And, after its release, Spry Fox provided confidential information on the performance of the game on Facebook and Google+.   6waves/LOLapps continued to feign good faith negotiations with Spry Fox under the NDA at the same time it was having Yeti Town developed. 

Obviously, they had been developing the copy for months prior to its release, all the while concealing the fact from Spry Fox.  As noted in the Complaint, 6waves/LOLapps Dan Laughlin, Executive Director of Business Development, sent a message to David Edery at Spry Fox the day Yeti  Town was released in the App store terminating negotiations, informing him of the launch of Yeti Town, apologizing to David for Yeti Town and expressing his personal regrets that it had been done.

In an interview on Gamasutra last week, 6waves/LOLapps had the unmitigated gall to claim that Yeti Town was independently developed by Escalation Studios, the developer it hired (and recently acquired) as a result “independent efforts.”  This disingenuous defense of their illegal actions reflects an arrogant lack of respect for the people who actually contribute original content in games and their intellectual property rights.  Unbelievable!

    I cannot express how proud and honored I am to be associated with Spry Fox as David and Danc's General Counsel.  Spry Fox is a real deal indie studio dedicated to creating unique original games that contribute to the art of games and with the conviction to do the right thing and take action to protect their intellectual property.  They are painfully aware that as true innovators they set themselves up to be cloned, which has already happened with many or their games.  But copying a Spry Fox game will not be tolerated.  So those no talent arrogant big boys who think its OK to make a living ripping off the creative geniuses in our industry take note - “Don’t Tread on Spry Fox!”

GL & HF!

Tom B