More protection for game design

Following the Tetris lawsuit and the ongoing EA-Zynga lawsuit, Greg Lastowka comments on the ruling in the Triple Town / Yeti Town cloning case.

Here is what Greg says:

So… to the extent that a game idea is embodied in “objective elements of expression” that resemble “plot, theme, dialogue, mood, setting, pace, and character,” those things are not an “idea” and may be within the scope of copyright.  But how do we distinguish between “objective elements of expression” and the “idea” in Triple Town?  The idea part of Triple Town seems to be set forth above, but what are the “objective elements” of Triple Town?  The court doesn’t spell this out in the abstract so much as it demonstrates its understanding by applying it to the facts:

“Spry Fox’s allegations are more than adequate to illustrate plausibly the objectively similar expression embodied in Yeti Town. The object hierarchy is similar. Progressing from grass to bush to tree to hut is similar to progressing from sapling to tree to tent to cabin. Perhaps more importantly, the object hierarchy coupled with the depiction of the field of play comprise a setting and theme that is similar to Triple Town’s. 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. Whether 6Waves’s choice of language in its dialog boxes is similar enough to Spry Fox’s is a closer question, but it is a least plausibly similar. There are apparent differences between games (for example, yetis are not bears and “bots” are not campfires), but a court must focus on what is similar, not what is different, when comparing two works.”

Did you follow that analysis?  The court has said that “hierarchical matching” is an idea above.  But here the court seems to place the particular “object hierarchy” within the scope of copyright. Bears are not yetis — but Yeti Town resembles Triple Town in that it mirrors a “wild creature” object within the hierarchy.  Snowfields are not meadows, but again, this is just swapping out one object for a similar object that can fit in the same slot in the hierarchy.  And the end result creates a similar “setting and theme.” I think I get what the court is doing here, but Eric says it “isn’t entirely clear” and Marty concurs about the ambiguity.

And no, nothing is settled here, since it is not specified what “similar setting and theme” is. But it does give a little more protection for game designs (and we can continue to discuss whether or not that is a good thing).