Bears Versus Yetis the Triple Town Copyright Infringement Case

Spry Fox LLC v. LOLApps Inc.,
United States District Court for the Western District of Washington, 2012
2012 WL 5290158

This case is one of several in recent years that have been blurring the line between creative expression in game play elements and uncopyrightable game mechanics. Spry Fox LLC (“Spry Fox”) sued LolApps, Inc. (a/k/a 6Waves, LLC (“6Waves”)) over a disagreement regarding development of the game Triple Town. Spry Fox originally developed the game Triple Town for the Amazon Kindle. After the game’s success, Spry Fox approached 6Waves, LLC for assistance in bringing the game to other platforms. No explicit development plan was agreed on, but in July 2011, 6Waves and Spry Fox entered into a nondisclosure agreement granting 6Waves access to Triple Town assets.

Shortly thereafter, in December 2011, 6Waves notified Spry Fox that it would no longer develop an iOS version of Triple Town. Around the same time, 6Waves announced that it would release its own knockoff game of Triple Town, entitled Yeti Town. In response, Spry Fox filed this complaint, alleging copyright infringement as well as trademark infringement under the Lanham Act. 6Waves moved to dismiss both claims.
Both Triple Town and Yeti Town both have remarkably similar gameplay loops. Both games are match-three games on a six-by-six grid. Each game starts with a small in-game object, such as a bush. When three shrubs are placed next to each other on the game grid, they will then transform into a next object higher up in a hierarchy, such as a tree. When three trees are connected, then they transform into a next object higher up in the hierarchy, and so forth. This process continues as the game board becomes more cluttered. The better a player is at combining objects, the higher their score will be.

Spry Fox’s complaint, filed in January 2012, asserts that both Triple Town and Yeti Town follow nearly the exact same form and gameplay structure. The complaint even alleges that video game bloggers reviewing the games noted the major similarities between the games.

A claim of copyright infringement requires a plaintiff to prove that they have a valid copyright on the infringed work and that the defendant copied the work. Copying is usually proved by showing that the defendant had access to the work and that the two works are substantially similar.
6Waves did not dispute that Spry Fox had a valid copyright in Triple Town. 6Waves also did not dispute that they had access to Triple Town. Instead, 6Waves argued – apparently without evidence – that Yeti Town was independently developed by another company, and that 6Waves simply purchased that company after, such that 6Waves’ access to Triple Town had no bearing on the development of Yeti Town.

In considering a motion to dismiss Spry Fox’s complaint, the major issue analyzed by the Court was the substantial similarity between Triple Town and Yeti Town. Substantial similarity is established using an extrinsic and intrinsic test. The extrinsic test considers the objective similarities between the ideas “inherent in the copyrighted work and way the work expresses those ideas,” whereas the intrinsic test is a subjective comparison of the two works through an ordinary observer (focusing on the “total concept and feel” of the works). The Court found that only certain portions of Triple Town were protectable under U.S. copyright law. In particular, the Court found that, while Triple Town’s scoring system and gameplay grid were not protectable because of the scenes a faire doctrine (as elements that are mandated by the genre and thus unprotected), other creative elements – such as the shrubs and the hierarchy of in-game objects – could be protected. Comparing the protectable aspects of Triple Town versus Yeti Town, the Court found both objective and subjective similarities between the two games. The Court also found that, while the title “Triple Town” was not itself copyrightable, the fact that “Yeti Town” had a nearly identical name was relevant.

Though Spry Fox and 6Waves later settled out-of-court, this case presents interesting lessons as to the copyrightability of characters and elements in a video game. As indicated above, the design choices made by Spry Fox were protectable under copyright, whereas other gameplay-related elements (such as the gameplay grid) were not. However, the development relationship between the parties here was likely a factor that caused the Court to fall on the side of finding copying elements covered by copyright. While there have been a few cases in recent years that seem to indicate shift in the copyrightability of game play elements, there has not yet been a definitive sea change nor significant precedent. As a result, game play elements per se remain uncopyrightable, but the line between what is creative expression in game play and what are uncopyrightable game mechanics continues to blur.