On Sunday, February 9, the new hit game for iPhone and android users, Flappy Bird, was removed from the app stores. While ordinarily apps are taken out of commission for compelling reasons, such as legal issues, here, the developer Dong Nguyen appeared to do it voluntarily. Nguyen tweeted on Saturday, February 8, “I am sorry ‘Flappy Bird’ users, 22 hours from now, I will take ‘Flappy Bird’ down. I cannot take this anymore.” Although the game is still available for use for the 50 million users who downloaded the game prior to its removal, those who are just learning of the game and all of its hype are disappointed they no longer have the opportunity to experience it for themselves.
There has been much speculation as to what lead to the uncommon decision of removing the top-ranked game from the app stores, one that achieved similar levels of popularity compared to the infamous Candy Crush and Angry Birds games. Nguyen has since been pretty tight-lipped about his decision, but in an interview with Forbes, explained that while Flappy Bird started as a fun activity, it became an “addictive product,” which he believed became a problem. To solve the problem, he believed the best decision was to remove the game, a game he says is “gone forever.” Speculators also have trouble accepting this decision since it is estimated that he was receiving $50,000 a day from in-app advertising, and while Nguyen did not confirm that figure, he did admit he was receiving a lot of money through advertising.
Kotaku, a “video game-focused blog,” alleged that Nguyen “ripped off” much of Flappy Bird and its look from Super Mario Brothers. In an article they published, Kotaku compares the two games and emphasizes pictures of each that look extremely similar. There are obvious commonalties amongst the pipes and titular bird, as well as the sound-effects and backgrounds of both games. Others have also noticed similarities to Piou Piou and the Helicopter Game. Despite these allegations, no official charges of copyright infringement have yet been filed, but these comparisons pose an interesting theory as to why Nguyen may have removed the game from the app stores.
Additionally, some bloggers and commentators are wondering why Nintendo, the owner of Super Mario Bros., has not yet brought infringement claims, especially when considering how much money Nguyen has received from this game. Some are concerned that without Nintendo defending their copyrights, this may inspire other developers and creators to formulate new games that also take advantage of Nintendo’s intellectual property. Already, cloned versions of the game have started appearing, offering users a chance to experience a similar game under the names “Flappy Plane, Flappy Whale, Flappy Penguin and Flappy Angry Bird;” each one of these games is additionally “knocking off’ Nintendo’s intellectual property.
In line with these concerns is the Candy Crush Saga dispute, in which King, the games creator, trademarked the words “candy” and “saga” preventing other developers from using these words at all within their own game’s title. Although many believe trademarking these words is “absurd,” they still believe the extent to which Flappy Bird resembles Super Mario Bros. likely went too far and impeded Nintendo’s intellectual property.
Nguyen says that despite removing Flappy Bird, he will develop new games. He explained, “after the success of Flappy Bird, I feel more confident, and I have freedom to do what I want to do.” It will be interesting to see whether Nguyen’s new creations also resemble Super Mario Bros. or other classic games, and additionally, whether Nintendo will decide to pursue claims for copyright infringement based on its apparent similarities to Flappy Bird.
* Samantha Berner is a second year law student at Wake Forest University School of Law. She holds a Bachelor of Arts in Criminology from the University of Florida.