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Enlarge / Imagine owning one of those funky birds as an NFT! (credit: Flappy Bird Twitter/X)
Fans of ultra-viral mobile gaming hit Flappy Bird who were stunned by the game's sudden removal from the iOS App Store 10 years ago were probably even more stunned by last week's equally sudden announcement that Flappy Bird is coming back with a raft of new characters and game modes. Unfortunately, the new version of Flappy Bird seems to be the result of a yearslong set of legal maneuvers by a crypto-adjacent game developer intent on taking the "Flappy Bird" name from the game's original creator, Dong Nguyen.
"No, I have no related with their game. I did not sell anything," Nguyen wrote on social media over the weekend in his first post since 2017. "I also don't support crypto," Nguyen added.
No, I have no related with their game. I did not sell anything.
I also don't support crypto.— Dong Nguyen (@dongatory) September 15, 2024
"Flappy Bird was designed to play in a few minutes when you are relaxed," Nguyen said in a 2014 interview after removing the game from mobile app stores. "But it happened to become an addictive product. I think it has become a problem. To solve that problem, it’s best to take down Flappy Bird. It's gone forever."
Enlarge / The Fifty-Eight holes board from Çapmalı. (credit: W. Crist et al., 2024)
An ancient board game known as Hounds and Jackals has long been believed to have originated in Egypt. However, according to a paper published in the European Journal of Archaeology, a version of the game board found in present-day Azerbaijan might date back even earlier, suggesting that the game originated in Asia.
As previously reported, there is archaeological evidence for various kinds of board games from all over the world dating back millennia: Senet and Mehen in ancient Egypt, for example, or a strategy game called ludus latrunculorum ("game of mercenaries") favored by Roman legions. A 4,000-year-old board discovered last year at an archaeological site in Oman's Qumayrah Valley might be a precursor to an ancient Middle Eastern game known as the Royal Game of Ur (or the Game of Twenty Squares), a two-player game that may have been one of the precursors to backgammon (or was replaced in popularity by backgammon). Like backgammon, it's essentially a race game in which players compete to see who can move all their pieces along the board before their opponent.
Last year, archaeologists discovered a 500-year-old game board in the ruins of Ćmielów Castle in Poland. It was a two-person strategy board game called Mill, also known as Nine Men's Morris, Merels, or "cowboy checkers" in North America. The earliest-known Mill game board was found carved into the roofing slabs of an Egyptian temple at Kurna, which likely predates the Common Era. Historians believe it was well-known to the Romans, who may have learned of the game through trade routes.
As Donald Trump used every available resource to ensure his tenancy at the most recognizable house in the United States was extended, some social media platforms had adopted an unorthodox approach to his accounts.
Despite receiving a number of takedown notices alleging copyright infringement in Trump’s tweets, and in some cases removing content in response to apparently valid claims, the president’s account wasn’t suspended or terminated as is often the case.
That allowed one of Trump’s team to post a tweet containing a short animation; a train sporting Trump’s campaign logo being pursued at some distance by rival Joe Biden on a railroad handcar failing to keep up. For reasons that remain unknown, the animator chose the 1982 hit ‘Electric Avenue’ by British singer-songwriter Eddy Grant as the animation’s soundtrack.
The animator didn’t ask Grant for permission and when the Trump team spotted the animation on Twitter, a decision was made to post it on Trump’s Twitter account, also without asking Grant for permission. Grant responded with a cease and desist notice and when that was ignored, Grant sued Trump and his team for copyright infringement.
Judge’s Opinion Was Just His Opinion?
In an ideal world, the failure of Trump’s motion to dismiss in September 2021 should’ve been seen as an opportunity to settle the case privately.
A very small slice of humble pie and some tea, perhaps, so that everyone could move on. Or even negotiating the terms of the settlement Grant offered in August 2020 before filing the lawsuit.
Instead, U.S. District Judge John Koeltl’s opinion and order, which painted a clear picture of how successful a fair use defense was likely to be in this matter, appears to have carried little weight with the defense. That was surprising.
Judge Koeltl had described the use of Electric Avenue as “wholesale copying” to support a political ad campaign, and noted that the defense had misunderstood “the focus of the transformative use inquiry.” The defense had also admitted that the animation was not fair use-friendly parody, but its less useful cousin, satire.
Judge Koeltl went to state that the defense had offered no justification at all for their “extensive borrowing” nor had they provided any evidence that use of the work had caused no market harm. In fact, such was the total disconnect between the use of Electric Avenue and the animation, the campaign could’ve chosen any other track, or indeed no track at all, to send the same message.
Four Year Legal Grind
What the defense were hoping to find isn’t clear but after failing to convince the court in October 2021 that Trump had “Presidential absolute immunity” in respect of Grant’s claims, the case dragged on for another three years, four years in total.
Exactly a year ago, September 15, 2023, the plaintiffs and defendants filed motions for summary judgment at a Manhattan federal court. The defendants informed the court that they would rely on a fair use defense, despite Grant’s legal team asserting that discovery had “revealed unequivocally” that the use of Electric Avenue was not transformative.
Fair Use Defense Fails, Defense Liable for Infringement
Judge Koeltl had formed the same opinion two years earlier and in an opinion and order dated September 13, 2024, he offers a reminder of his order handed down several years earlier.
“In an Opinion and Order dated September 28, 2021, this Court denied the defendants’ motion to dismiss. The parties have now filed cross-motions for partial summary judgment,” Judge Koeltl notes.
The Trump defendants asked the Court to dismiss part of the complaint based on their assertion that Grant lacked a valid copyright registration for the sound recording of “Electric Avenue.” The details are convoluted, but the bottom line straightforward; defendants’ motion to dismiss was denied.
The plaintiffs moved for summary judgment on the issue of liability. Oral argument was heard on September 6 and in his order, Judge Koeltl reveals that the plaintiffs’ motion is granted. The defendants are liable for damages because their fair use defense comprehensively fails.
Fair Use Analysis
“In this case, the Video has a very low degree of ‘transformativeness,’ if any at all. As this Court found in denying the defendants’ motion to dismiss, the Video ‘is best described as a wholesale copying of music to accompany a political campaign ad’,” Judge Koeltl notes, citing his opinion from 2021.
“The defendants also argue that the Video ‘transformed Grant’s original conception of Electric Avenue as a protest against social conditions into a colorful attack on the character and personality traits of a rival political figure’. Again, ‘the defendants’ argument misapprehends the focus of the transformative use inquiry.'”
The inquiry does not focus exclusively on the character of the animation, the Judge notes. Rather, “it focuses on the character of the animation’s use of Grant’s song.”
The defendants claimed that their use of the work gave them “no commercial advantage” but the Judge disagreed.
In this case, the defendants benefited commercially from using Electric Avenue without paying a licensing fee. While there was no direct profit motive, that was insufficient to overcome the lack of transformative use and the first fair use factor favoring Grant.
A Fair Use Full House For Grant
Once again citing his opinion and order from 2021, the Judge notes that the defendants conceded that Electric Avenue is a creative, published work, leading to the second factor favoring Grant.
The third fair use factor considers the amount and substantiality of the portion used in relation to the copyrighted work as a whole. This inquiry was also present in the opinion from 2021; in 2024, nothing has changed and still favors Grant.
The fourth factor asks “whether, if the challenged use becomes widespread, it will adversely affect the potential market for the copyrighted work.” In this matter the Judge writes that there is no public benefit as a result of the defendants’ use of Electric Avenue; they could’ve used any song, even created their own, or used no song at all.
“The plaintiffs’ ability to license “Electric Avenue” in the market for licensed music for videos—political or otherwise—would be affected by widespread, uncompensated use. Accordingly, the last fair use factor favors the plaintiffs,” Judge Koeltl concludes.
That leaves the question of damages; Grant previously requested $300,000, but it’s likely the defense will have done their own calculations and arrived at a vastly lower sum.
Judge Koeltl’s opinion and order can be found here (pdf)
From: TF, for the latest news on copyright battles, piracy and more.