As the EA v. Zynga copyright lawsuit gets underway, undoubtedly one of Zynga’s strategies will be to employ the scènes à faire legal doctrine, which, along with its counterpart, merger, can form a powerful shield against what often appears to be a case of unabashed software copying.
Litigation So Far
In an earlier post, I discussed two key elements EA must meet to prove copyright infringement: access and copying. EA began laying its foundational argument for the access element by suggesting that former high-ranking EA employees now working for Zynga could have the provided information necessary to copy EA’s work. While this may look damaging, EA will have to prove more.
More challenging is that EA also must convince a jury that Zynga either copied parts of The Sims Social (“TSS”) verbatim, or, a more likely scenario, that the access discussed above allowed them to create something substantially similar.
If EA succeeds copyright law provides recovery of actual or statutory damages and attorney fees, which could total tens of millions of dollars. In addition, and perhaps more devastating, EA could also be granted an injunction, forcing Zynga to take The Ville off the market altogether.
Unfortunately, when it comes to intellectual property law, look and feel can be deceiving.
EA's Legal Arguments
In EA’s complaint, they allege several distinctive features and attributes in The Sims Social that are nearly identical in The Ville. Keep in mind that the chart below provides only a generalized overview of EA’s claims:
Apple's GUI Top, Microsoft Windows Bottom
EA’s complaint mentions other similarities as well, including overall color scheme, style, and player interface, and they summarize their substantially similar argument as follows:
“The comparisons provided… are a representative list of these similarities. The expressive audio-visual game elements of The Sims Social that Zynga has copied are highly original and creative, are not “stock” or “standard” within the social gaming genre, and are not required by any concept or idea underlying the game. Zynga could have designed The Ville in innumerable different ways without copying EA ’ s original, protectable expression.”
Of particular importance is the phrase “…highly original and creative, are not “stock” or “standard” within the social gaming genre…” because it speaks to a specific strategy they anticipate Zynga will employ, called scènes à faire.
Scènes à faire
Scènes à faire is a legal doctrine that denies copyright protection to expressions that are standard, stock, or common to a particular topic or that come from a common theme or setting. 
Think of it this way. How many movies have you’ve seen that includes a scene where the good guy walks into a bar and a fight breaks out? A whiskey bottle breaks over a cowboy's head. The expensive mirror behind the bar is broken. A bad guy coming down the stairs is shot and tumbles to the landing below. Another bad guy falls through the front window and into the horse trough outside. Etc.
Generally, you can’t sue someone for including a western styled barroom brawl in a creative work because it's trade stock. You’ve seen it applied in everything from a John Wayne western to Star Wars.
When it comes to software, it gets a bit more complicated, but the principle applies, especially where parts of a software program are dictated by practical realities and mechanical specifications. The graphical user interface lawsuit between Apple and Microsoft in the 90s provides insight.
Applied to Microsoft Windows
In 1994, Apple sued Microsoft over the Windows user interface, which Apple claimed infringed on their GUI's original look and feel. I was using a Mac at the time, and I was sure that Apple would win, even though I knew that Microsoft wasn’t the only copycat. While the look and feel of Microsoft Windows was admittedly similar, the court excluded several of Apple’s claims based on scènes à faire and merger. Much to Apple's disappointment, the court examined each unique copied feature individually, separating the “expression” from the general “idea” behind it. As a result, Microsoft’s use a window and icons, for example, were deemed non-infringing based on this analysis.
The Apple court refused to recognize copyright infringement in almost every one of Apple’s claims, showing, as a practical matter, that the implementation of these items were indispensible or standard to all graphical user interface programs.
Interestingly, the Apple v. Microsoft court also relied on a video game dispute to clarify their application of the scènes à faire and merger doctrines:
“When an idea and its expression are indistinguishable, or "merged," the expression will only be protected against nearly identical copying. The doctrine of scenes a faire is closely related. When similar features in a videogame are, as a practical matter, indispensable or at least standard in the treatment of a given idea, they are treated like ideas and are therefore not protected by copyright.”
And that brings us to PAC-MAN, which was the case the Apple court was citing.
PAC-MAN v. K.C. Munchkin
PAC-MAN was originally developed and sold by Namco, but Atari and Midway owned the exclusive rights within the United States. Midway handled the coin-op version and Atari the home video game version.
Enter K.C. Munchkin.
Unfortunately, success breeds copying, and North American Phillips was desperately trying to penetrate the home video game market with a game system called Odyssey. They wanted to license PAC-MAN, but it wasn’t available, so they built their own PAC-MAN clone. Atari, of course, sued.
Atari alleged that Phillips' Munchkin game blatantly duplicated numerous key features in PAC-MAN, including the look of the main character (“gobbler”) and the way he pursued and consumed his prey, (the “ghost monsters”), chasing them around a two dimensional dotted board. Atari pointed out that Munchkin’s main character looked surprisingly like PAC-MAN, including the opening-closing mouth animation. They further argued that like their game, the Munchkin maze was rectangular and included tunnel exits on the sides.
Ultimately, Atari prevailed, but the outcome wasn't based on what you’d expect.
Relying on the scènes à faire doctrine, the court refused to acknowledge copyright infringement of several important PAC-MAN features and items, including the look and way the maze operated.
Here’s what the court said:
“Certain expressive matter in the PAC-MAN work, however, should be treated as scènes à faire and receive protection only from virtually identical copying. The maze and scoring table are standard game devices, and the tunnel exists are nothing more than the commonly used “wrap around” concept adapted to a maze-chase game. Similarly, the use of dots provides a means which a player’s performance can be gauged and rewarded with the appropriate number of points, and by which to inform the player of his or her progress.”
Phillips lost not because they duplicated a maze game, even one with side exits and dots, but because they duplicated the PAC-MAN characters. Here's what the court said:
“…it is the substantial appropriation of the PAC-MAN characters that requires reversal of the district court. The expression of the central figure as a “gobbler” and the pursuit figures as “ghost monsters” distinguishes PAC-MAN from conceptually similar video games.”
Had Munchkin's character been, as an example, a triangular whirlwind or a mindless zombie, it’s doubtful that Atari would have prevailed.
Applied to EA v. Zynga
EA has made broad claims, but when applying the scènes à faire and merger doctrines, many will probably fail.
For example, EA’s claim of uniquely creating an avatar game based on human interactions and functions probably won’t be any more convincing than Atari’s claim that PAC-MAN was protectable as an original maze game. It will prove difficult to defend the idea that TSS is a unique human simulation just as it might prove difficult to defend Petz as an original simulation of animals. In fact, at thirty thousand feet, all of these "simulations" are Tamagotchi-like.
Taking another step back, how different is TSS from an online fantasy role playing game or MMOG, where players are required to meet the needs of their characters, including food, love, companionship, quests, etc.? Isn’t the idea of improving your character key to Linden Labs’ Second Life and Blizzard’s World of Warcraft?
How about the idea of communicating via thought bubbles? Whether the need is sleep, a bathroom break, or love, it's been repeated in comics and feature films for years. So no infringement there. Communicating via garbled language is something I enjoyed while watching Charlie Brown films as a child. No infringement there either.
In creating a general simulation that deals with avatar people, which Zynga clearly has the right to do, human characters would naturally display certain attributes, including many of those described in EA’s complaint. Sleep sequences. Bathing sequences. Regardless of how close they might be, they are not identical, and in that, at least when you apply Apple v. Microsoft and Atari v. North American Phillips, copyright protection will probably fail.
So what exactly does EA have on Zynga?
Where EA Could Prevail
Despite EA’s overwhelming success, The Sims Social is not a unique game or simulation, nor will many its features be protected from scènes à faire or merger doctrine attacks. On the other hand, EA does make a few interesting claims.
If true, the use of eight skin tones (using the exact same RGB values) appears to be a direct infringement. But under an Atari v. North American Phillips analysis, it probably isn't not enough to show substantial similarity. Add to it the wall height proportion argument and you get further down the road. Add to it the employment of a yoga mat, and you might get a jury’s attention.
But that leads to a whole new problem.
The Unpredictable Nature of a Jury
When a decision, any decision, is left in the hands of a jury, anything can happen. Just ask Silicon Knights.
Silicon Knights’ five-year battle with Epic Games—which started out as a misrepresentation and breach of contract dispute over Epic’s purported failure to provide a working version of their Unreal Engine—ended in an unmitigated disaster for SK. After spending zillions of dollars in attorney and court fees, not only did SK lose on every one of their claims, but Epic (the defendant) was awarded $4.45 million dollars in damages for guess what? Copyright infringement.
It goes to show you that when it comes to the law, columnist Dave Berry probably offers the most pratical wisdom of all:
“We operate under a jury system in this country, and as much as we complain about it, we have to admit that we know of no better system, except possibly flipping a coin.”
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By Dan Lee Rogers (c) 2012
 EA v. Zynga complaint, paragraphs 53-57.
 EA v. Zynga complaint at paragraph 60, which reads “As a result of Zynga’s extensive copying, The Ville and The Sims Social are substantially similar (emphasis added) in their total concept and feel. Every key element that has made The Sims series, and The Sims Social, so original and unique has been replicated by Zynga in The Ville.”
 EA v. Zynga complaint at paragraphs 19, 20, 21, and 22.
 EA v. Zynga complaint at page 61.
 Gates Corp. v. Bando Chem. Indus., 246 F.3d 680 (10th Cir. Colo. 2001)
 Software and Scènes à faire, A modest proposal for application of the doctrine in computer software cases. Krista S Scheartz, Stacy A Baim, and Sasha Mayergoyz: http://www.jonesday.com/files/Publication/913ab9f5-4eaf-4ba7-a305-116b11e903b3/Presentation/PublicationAttachment/6809cb5e-fe96-4218-8486-202e7a45a25a/011-013-CW-May09-Feat.pdf
 Apple Computer v. Microsoft Corp., 35 F.3d 1435 (9th Cir. Cal. 1994)
 At the time, there were already several other graphical user interfaces being used on MS-D0S and other operating systems, including HP’s NewWave, and DRI’s GEM, among others.
 This is an admittedly overbroad interpretation of this case, but it serves to show how merger and scènes à faire was used.
 Atari Inc. v. North American Phillips Consumer Electronics Corp. United States Court of Appeals, Seventh Circuit, 1982 672 F.2d 607
 See http://www.youtube.com/watch?v=gKxXAwBRuVo
 Silicon Knights v. Epic complaint found here: http://law.justia.com/cases/federal/district-courts/north-carolina/ncedce/5:2007cv00275/89570/692/; Epic awarded $4.45 million for their cross claim of copyright infringement: http://www.theverge.com/gaming/2012/5/30/3052869/court-finds-for-epic-games-on-all-counts-in-silicon-knights-suit