New copyright infringement lawsuits filed over mobile game clones

Revenge of the attack of the clones:

I’ve written before about legal action that some companies have taken over cloned versions of their games, from the creators of the Bang! card game to the threat of legal action against Moriarty’s Machinations. In the last few months, there have been two new lawsuits filed by mobile game developers against other devs who they claim have produced clones.

Go with the Flow (Free):

The most recent is from Big Duck Games, creators of the hit mobile game Flow Free. They have filed suit against ThinkCube, Inc. in a Seattle court. Their complaint, found here, alleges both copyright and trademark infringement. These images, taken from the site of game attorney Stephen McArthur, show the clear similarities of the games.

Flow Free on the left, "cloned" version on the right: You decide!
Flow Free on the left, “cloned” version on the right: You decide!

This is almost literally a clone, in every sense of the word. McArthur points out that ThinkCube has stated earnings of half-a-million dollars each year due to the cloned mobile game. The complaint quotes reviews of ThinkCube’s game which show that they are aware that it is a direct clone, but are opting for this version because it is free.

While there are a number of clones of Flow Free out there, ThinkCube’s seems to be the most popular and profitable, according to a quote from Big Duck Games’ founders.

Hunting down clones:

The claims, though, don’t appear to be as cut-and-dry as in the Flow Free case.While the claims in the Flow Free lawsuit seem pretty obvious, the second case I’d like to discuss may not be. Glu Mobile, creators of the Deer Hunter 2014 mobile game, sued developer Hothead Games in November last year.

In this lawsuit, Glu is alleging that Hothead has committed copyright and trade dress infringement when they created their Killshot mobile game. The claims, though, don’t appear to be as cut-and-dry as in the Flow Free case.

Many of the similarities between the games that are alleged as copyright infringement may fall under the “scene a faire” doctrine. This doctrine says that, basically, things that are common to a genre are not really protectable.

Images from Glu Mobile's complaint
Images from Glu Mobile’s complaint

I generally agree with Techdirt’s analysis of the case. Many of the claimed infringements boil down to basic interface decisions that are not necessarily unique to Glu Mobile’s game. For instance, swiping next to a gun sight to zoom in. However, Glu alleges a long list of similarities, including pricing of items within the game and how the tutorial is set up. As a whole, a court MAY find that Hothead did, indeed, clone the game (albeit with different artwork).

The trade dress claim says that Hothead has copied the visual appearance of Glu’s game, so much so that it could cause consumer confusion. Here is another questionable claim, as you can see from the screenshots that Glu’s interface and visuals aren’t exactly what I would call “distinctive.” Again, however, it’s all about how strong their trade dress is and how likely it is that consumers will be confused by the two games.

Waiting for a verdict:

I am very interested in the outcome of these cases, and game developers should be, as wellI am very interested in the outcome of these cases, and game developers should be, as well (both those that clone and those that get cloned!). This kind of thing will most likely either settle, or take years of litigation. Stay tuned!

For more information about game development legal issues, check out my free eBooks and my brand new course on stopping content theft through the use of DMCA takedowns on Udemy (get it for a big discount by clicking here!).

photo credit: Star Wars Weekends 2011-Last Day via photopin (license)

Zachary Strebeck

Zachary Strebeck

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