Thought Bubble: Flappy Bird, copyright and ‘rip-offs’ in the app market

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The pipes are familiar, but does that constitute a rip-off?

Last week I started seeing a lot of mentions in my Twitter timeline of some game called Flappy Bird. The conversations were mainly about how it was so terrible but so addictive.

As the week progressed, those mentions became more frequent. Flappy Bird had gone viral. Creator Dong Nguyen started to receive death threats after Kotaku ran this piece accusing him of ripping off Super Mario art (which they’ve since apologized for), and by Saturday, he had announced that he would be taking the game down.

Nguyen has since gone on to tell Forbes that he took it down because he didn’t like that it had gotten so popular and how addictive it was for some people. There were rumours that Nintendo had asked him to take the game down, but a Nintendo spokesperson denied this was the case.

There’s a pretty good reason why Nintendo did not take legal action, and this whole situation is an example of how the general population does not understand how copyright works.

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The fact is, if copyright worked the way that the majority of people seem to think that it does, no one would be able to create anything. And that is the exact opposite of what copyright laws are meant to achieve. Now, let’s go on a Mass Comm 101 journey back to the past, to understand where copyright comes from, what it does, and why Flappy Bird was never in danger of a lawsuit.

A BRIEF HISTORY OF COPYRIGHT

The creation of copyright law goes all the way back to the 15th century, and the invention of the printing press. Before this, books had to be illuminated by hand, making them expensive, scarce, and too time-consuming to bother copying. But the printing press allowed many copies of a book to be made quickly and relatively inexpensively, but suddenly publishers and authors had a problem: it was also easier for people to copy books that didn’t belong to them. The first copyright law, The Statute of Anne, was created in 1710 to protect writers and publishers from publishing pirates, and today’s copyright law stems from the Berne Convention of 1887, which set a minimum standard for copyright protection all over the world. The purpose of these laws was originally to allow authors the rights to the profits of their work during their lifetime.

The creation of corporations in the 20th century has led copyright laws to be for much longer terms than they were originally (in the U.S, it is a ridiculous 95 years, thanks to Mickey Mouse), but the purpose of copyright is still the same: to protect works from being copied and sold by those it doesn’t belong to.

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Perhaps micro-transactions for this Flappy Bird clone could be made only with Dogecoin.

WHAT DOES COPYRIGHT DO, THEN?

Copyright only protects exact copies of a work from being distributed by people who don’t own the copyright. It does not protect: titles of books or movies, short phrases, facts, ideas or theories.

Copyright protecting an idea is something that a lot of people don’t seem to understand, and it’s pretty important in the case of Flappy Bird. It only protects the expression of that idea. That’s why there’s nothing legally wrong with The Hunger Games and Battle Royale having the same core idea (that of teenagers having to kill each other on TV) because the way that idea is expressed is vastly different.

The reason for this is simple: if ideas were copyrighted, creators wouldn’t be allowed to make anything. The fact of the matter is, creative works are hugely derivative, and often come from the expansion or influence of ideas that came before it. It can’t work that way, or we’d have no new books, movies, TV shows or games to enjoy.

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So while yes, Flappy Bird is obviously inspired by Super Mario Bros, something that the creator readily admits to, it doesn’t infringe on any of Nintendo’s copyrights. No, not even the green pipes.

WHY FLAPPY BIRD DIDN’T DO ANYTHING WRONG

Why? Because while the influences are there, pretty much nothing else about Flappy Bird is like Mario – not the gameplay, not the characters, not even the core idea. The expression of Flappy Bird is completely different from that of Mario. Now, if Nintendo were able to trademark the green pipes by arguing that they’re a commercial symbol, they might have a case. But they haven’t, probably because they have to approve and it wouldn’t be allowed, but also because it’s a pain to register them.

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We do know that the Sesame Street Workshop can safely use its pajama-wearing protagonist in its Flappy Bird clone, Flappy Bert.

Even then, Nintendo still doesn’t really have a case, because it’s unlikely most people are going to mistake Flappy Bird for a Mario game. (Although, as we’ve seen in the case of King.com, economic might and good lawyers can have a huge impact on shutting down the little guys, King is seriously pushing it with their definition and function of trademarks, and are as bad as any patent troll. But that’s a whole other piece.)

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Not only that, but while you can copyright images and art so they’re not reproduced by others, you can’t copyright an art style (which again makes sense because then no one would be able to make art without coming up with a totally new and unique style, which is arguably impossible by this point).

As for the whole Piou Piou thing? (a 2011 game that is very similar to Flappy Bird – ed.)I genuinely believe that was a coincidence. It happens! There are several reasons for this: one, no one played that game, and clones tend to be made of massively successful games. If anything, sales have been up on that game since that story hit. Two, it’s three years old, and mobile cloners only clone games as quickly as possible in order to capitalize on the hype (it’s happening with Flappy Bird right now). Three, you can probably also argue for different expression here, because yes, they have the same idea, but there are enough differences to make Flappy Bird an original work.

This is why it’s so important for creators to know what their rights are, because the average person does not. People are very quick to cry plagiarism even when they don’t fully understand it, and the mob mentality of the internet makes it even worse. It is never OK to send someone death threats over a game, even if the allegations against Nguyen were remotely accurate. I’m not super impressed with the game community for how this went down. Kotaku, for not doing their research or understanding the charges they were accusing Nguyen of, and their readers, for doing that awesome thing they do when they think someone’s done something bad. Get your facts right, or don’t write the piece, especially when you know you have a volatile readership.

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