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.
The Sims Social
Zynga is in trouble again. This afternoon, Electronic Arts filed a copyright infringement suit against Zynga, alleging the Facebook game maker copied EA’s leading social game, The Sims Social, turning it in to Zynga’s recently released game The Ville.
Zynga is no stranger to lawsuits. This past year, they’ve averaged one a month, and in July alone two separate investors sued them over alleged SEC and securities fraud violations. But in the area of copyright and trademark litigation, their lawyers have dished out nearly as much as they’ve taken.
Zynga’s stock took a beating yesterday, careening on news of a $22.8 million dollar quarterly loss, at one point losing 40% in value. Investor skittishness or the overall economy may be to blame, but a growing concern is that Zynga’s success formula may not be sustainable, primarily because the company faces new competition and continues to rely on Facebook revenues. 
Dan Rogers is a practicing attorney within the video game and digital media industries. He’s also the author of several articles on the video game industry, technology, and digital law.