Law School Case Brief
Spry Fox, LLC v. LOLApps, Inc. - No. C12-147RAJ, 2012 U.S. Dist. LEXIS 153863 (W.D. Wash. Sep. 18, 2012)
A claim of copyright infringement requires a plaintiff to prove that it has a valid copyright on the work in question and that the defendant copied the work. Except in the rare case where there is direct evidence that the defendant copied the plaintiff's work, a plaintiff proves copying by showing that the defendant had access to the work and that the two works are substantially similar.
Plaintiff Spry Fox made video games. Among them was a game it dubbed "Triple Town," which was originally available for play on Amazon's Kindle device. Because Triple Town enjoyed some success on the Kindle, Spry Fox hoped to develop versions for other platforms, including the Facebook and Google+ social networks. Spry Fox approached defendant 6Waves, LLC, for assistance. In July 2011, 6Waves and Spry Fox entered into a nondisclosure agreement granting 6Waves privileged access to Triple Town. In December 2011, 6Waves delivered Spry Fox two pieces of bad news: it would no longer develop an iOS version of Triple Town; and it would release "Yeti Town," its own iOS game. According to Spry Fox, Yeti Town is a knockoff of Triple Town. In its motion to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a claim, 6Waves contended that Spry Fox's complaint failed to plausibly allege copyright or trademark infringement.
Does the similarity between Triple Town and Yeti Town amount to a plausible infringement of Spry Fox's copyright in Triple Town or an infringement of Triple Town's trademark or trade dress?
The District Court granted the motion in part and denied it in part. The Court denied the motion as it applied to plaintiff's claim of copyright infringement, but granted it without prejudice as it applied to plaintiff's claim for a violation of the Lanham Act. A claim of copyright infringement requires a plaintiff to prove that it has a valid copyright on the work in question and that the defendant copied the work. Except in the rare case where there is direct evidence that the defendant copied the plaintiff's work, a plaintiff proves copying by showing that the defendant had access to the work and that the two works are substantially similar. The Court noted that it is the determination of substantial similarity that is the crux of the parties' dispute. In the Ninth Circuit, a work is substantially similar only if it passes an extrinsic test and an intrinsic test. It is plausible that an ordinary observer, even after being instructed to ignore similarities that arise from unprotected ideas and functional choices, would find that Yeti Town and Triple Town have a substantially similar total concept and feel. The Court held that it is at least plausible that Spry Fox can pass the extrinsic test for substantial similarity. Because the allegations of its complaint plausibly satisfy both the intrinsic and extrinsic test, Spry Fox has plausibly alleged substantial similarity between Triple Town and Yeti Town. Even a relatively small amount of copying can permit the trier of fact to find substantial similarity. Here, Spry Fox has plausibly identified enough copying to state a claim for relief for alleged copyright infringement.
In dismissing Spry Fox's complaint for alleged Lanham Act violations, the Court found that while consumers might find Yeti Town and Triple Town to be substantially similar as a matter of copyright law, a starkly different standard of similarity applies to Lanham Act claims. The complaint unambiguously states only a single species of Lanham Act violation: a claim for infringement of its unregistered "Triple Town" trademark. If Spry Fox chooses to amend its complaint to state a Lanham Act claim, it must be explicit as to what species of Lanham Act claim it hopes to assert. It must also be mindful of the Ninth Circuit's admonition that the Lanham Act is a poor vehicle for addressing claims that fall squarely within the realm of copyright.
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