Could Flappy Bird be liable for copyright infringement against Nintendo?

The mobile game Flappy Bird has proven to be quite popular, despite its notoriously bare bones presentation. As a side note, my current high score is 3. A recent article on Kotaku pointed out the similarity that certain elements of the game, namely the pipe obstacles and the main character, have to Nintendo’s “Super Mario Bros.” While the article did not assert any legal ramifications, I thought that it would be instructive to look at the legal issues at play and do a quick-and-dirty analysis. This will not, by any means, be comprehensive, but I will point out a few cases that are instructive in this situation.

The facts:

  • An interview with The Verge states that the app has been downloaded 50 million times
  • Creator Dong Nguyen says that the app is making him $50,000 a day in ad revenue
  • There are 47,000 reviews of the game in the store

The art:

Courtesy of Kotaku, here are some comparisons of the Flappy Bird art and Super Mario Bros. art from Nintendo
Screen Shot 2014-02-08 at 3.28.57 PMScreen Shot 2014-02-08 at 3.29.07 PM

The law:

The big legal theory here would most likely be a claim of copyright infringement. Generally, to prove copyright infringement, you need to prove 1) access and 2) substantial similarity. Access to Super Mario Bros. and its artwork is not an issue; the game and its look are eponymous, to say the least.

With regard to substantial similarity, let’s look at a game-related case for guidance.

Capcom U.S.A. Inc. v. Data East Corp.

In this case, Capcom was attempting to get an injunction on Data East to stop the distribution of DE’s game “Fighter’s History.” If you look at images of DE’s game, it’s easy to see how close it looks to Capcom’s Street Fighter II.

In order to get the injunction before the trial, Capcom would have to show that they were most likely going to win the case when it went before the judge. To do this, the court uses two tests – the intrinsic test and the extrinsic test – to see if there is substantial similarity in the “total concept and feel” of the two pieces of work.

The extrinsic test is more of an objective test, analyzing and judging similarity as a matter of law. The intrinsic test is a subjective test that looks at the two pieces to see if an “ordinary person” would find them substantially similar.

In the Capcom case, the court found that three of the characters were substantially similar under the extrinsic test, but that they were not “virtually identical” or “bodily appropriated” under the intrinsic test and found it unlikely that Capcom would succeed.

Looking at the art for Flappy bird, however, one could find that the pipes in question, shown above, are extremely similar. The character, however, is more akin to the Fighter’s History versus Street Fighter characters, where it is not “virtually identical” to what came before. The backgrounds look inspired by Mario Bros., but they don’t look like exact copies. One could argue that things like clouds, skies and city skylines in the background would be unprotectable anyway.

So we have a game that copies the pipe art from the Mario games. Since this is a big part of the Flappy Bird experience, it is conceivable a court could find that a certain percentage of the revenue from the app would belong to Nintendo. With $50,000 a day incoming, it may be worth the money!

Another case that may be instructive is Tetris Holdings, LLC v. Xio Interactive, where infringement on the “look and feel” of Tetris was found.

Conclusion:

For those making “clone” apps, it is probably best to put some work into differentiating the art in your game from whatever you are cloning. While game mechanics and abstract rules are not protected by copyright, the art surely is. If you are making a game and have any questions about copyright and its effect on your product, feel free to contact me.

Note: Kotaku uses the term “ripped art” to denote what Flappy Bird is using, but I just want to clarify that there doesn’t have to be any “ripping” (in the digital sense) of the actual art data, just a “ripping off” off the look of the artwork (in the copying sense). Doesn’t really matter if it was redone by hand by Nguyen.

Update: Kotaku has since apologized for using the term “ripped,” and changed the original wording in the article.

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