Are the Rules of a Video Game Copyrightable?

Video Game Law: A Primer! Bar Association of San Francisco August 23, 2017

TODD SMITHLINE // Managing Principal, Smithline PC President, Smithline Training LLC Lecturer, U.C. Berkeley School of Law “Intellectual property rights aren't free: They're imposed at the expense of future creators and of the public at large.”

Alex Kozinski, White v. Samsung (Re-Hearing Denial Dissent) 9th Circuit Court of Appeals, 1993

Smithline – BASF 2017 2 Does copyright protect the rules of a game?

DaVinci Editrice v. Ziko Games, 183 F. Supp. 3d 820 (S.D. Tex. 2016)

Smithline – BASF 2017 3 DaVinci Editrice v. Ziko Games (S.D. Tex. 2016)  Tabletop game Legends of the Three Kingdoms accused of infringing Bang!

Smithline – BASF 2017 4 DaVinci Editrice v. Ziko Games (S.D. Tex. 2016)

DaVinci asks, what if you copy all of a game’s rules but none of its expression?

First, a little context.

Smithline – BASF Summit 2017 5 Historically, game rules were not protected by copyright.

Smithline – BASF 2017 6 HISTORICAL APPROACH

Smithline – BASF 2017 7 HISTORICAL APPROACH

“In the conventional laws or rules of a game, as distinguished from the forms or modes of expression in which they may be stated, there can be no literary property susceptible of copyright. Defendant has not infringed, because he has not copied the literary composition of the plaintiff's publication, but, in language quite distinctly his own, has restated the same set of conventional precepts.”

–Whist Club v. Foster, 42 F.2d 782 (S.D.N.Y. 1929)

Smithline – BASF 2017 8 COPYRIGHT OFFICE CIRCULAR

“Copyright does not protect the idea for a game, its name or title, or the method or methods for playing it. . . . Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles.”

Smithline – BASF 2017 9

CODE

COPYRIGHT CODE Copyright subsists in “original works of authorship fixed in any tangible medium of expression” but excludes “any idea, procedures, process, system, method of operation, concept, principle, or discovery . . . “ –17 U.S.C. 102 (a)(b).

So, copyright protects the expression of ideas, but not the ideas themselves nor functional processes or systems.

 Like the rules of a game.

Smithline – BASF 2017 10

But, courts in two recent video game cases have extended protection to game mechanics that look a lot like “rules.”

Smithline – BASF 2017 11

Tetris Holding v. XIO Interactive (D.C. N.J. 2012)

 Tetris claims infringement by Mino using broad, functional language

Tetris Mino

Tetris Holding v. XIO Interactive, 863 F.Supp.2d 394 (D.C. N.J. 2012) (Summary judgment)

Smithline – BASF 2017 12 Tetris Holding v. XIO Interactive (D.C. N.J. 2012)

Broad Infringement Ruling Covering Game Mechanics

“None of these elements are part of the idea (or the rules or functionality) of Tetris, but rather are a means of expressing those ideas” • “design and movement of playing pieces” including “bright colors, the individually delineated squares within the pieces and the downward lateral, and rotating movement” • dimensions of the playing field • display of “garbage lines” • the appearance of “ghost” or shadow pieces • display of the next piece to fall • change in color of the pieces when they lock with the accumulated pieces • appearance of squares automatically filling in the game board when the game is over

Smithline – BASF 2017 13 Spry Fox v. LOLApps (W.D. Wash. 2012)

 Spry Fox claims infringement of its match 3 game by Yeti Town

Triple Town Yeti Town

Spry Fox, LLC v. LOLApps, Inc., 2012 U.S. Dist. LEXIS 153863 (W.D. Wash. 2012) (Motion to Dismiss)

Smithline – BASF 2017 14 Spry Fox v. LOLApps (W.D. Wash. 2012)

Survives Motion to Dismiss: Infringement claims “plausibly satisfy both extrinsic and intrinsic test”

What infringes?

The “object hierarchy”

The “field of play”

Smithline – BASF 2017 15 Spry Fox v. LOLApps (W.D. Wash. 2012)

“Object hierarchy is similar”

Triple Town Yeti Town

Grass Sapling

Bush Tree

Tree Tent

Hut Cabin

Smithline – BASF 2017 16 Spry Fox v. LOLApps (W.D. Wash. 2012)

“[T]he depiction of the field of play comprise a setting and theme that is similar to Triple Town’s.”

Triple Town Yeti Town

MEADOW “not so different from” SNOWFIELD

BEARS “both wild creatures” YETI

PATCH “plausibly similar to” PLAIN

Smithline – BASF 2017 17 DaVinci Editrice v. Ziko Games (S.D. Tex. 2016)

Let’s get back to the DaVinci case

Smithline – BASF 2017 18 DaVinci Editrice v. Ziko Games (S.D. Tex. 2016)

 Virtually identical rules (Character life points, Roles, win conditions)

 Complete different names, art, setting and other expression (Wild West v. 3rd Century China)

Smithline – BASF 2017 19 DaVinci Editrice v. Ziko Games (S.D. Tex. 2016)

Rules of Bang! . Each player has a Character (Calamity Janet) with life points and special attribute . Each player has a Role (Sheriff, Deputy, Outlaw, Renegade) with specific win condition • Sheriff wins if all Outlaws and Renegades die . Cards for weapons, missing shots, healing, extending range of your gun. . Weapons strength designated in spaces between players. Character Cards Role Cards

Smithline – BASF 2017 20 DaVinci Editrice v. Ziko Games (S.D. Tex. 2016)

Infringement Claims Survive Motion to Dismiss:

. Court quotes extensively from Tetris and Spry Fox . “The seven characters from [Legends] have capabilities and life points that are identical or substantially similar to those of the corresponding seven characters in Bang!” . “Player’s roles” and “interplay of the characters” are protectable expression

DaVinci Editrice. v. Ziko Games, 2014 U.S. Dist. LEXIS 110139 (S.D. Tex. 2014)

Smithline – BASF 2017 21 DaVinci Editrice v. Ziko Games (S.D. Tex. 2016)

But, court reverses itself on summary judgment:

GAME RULES ARE NOT PROTECTABLE EXPRESSION

. “Unlike a book or movie plot, the rules and procedures, including the winning conditions, that make up a card-game system of play do not themselves produce the artistic or literary content that is the hallmark of protectable expression. See Boyden, 18 Geo. Mason L. Rev. at 466.”

. Unlike Legend of Zelda, Bang! falls into a category of games which “have plot progressions and characters who interact in ways that fall short of the expressive character interactions and plot progressions that are protected by copyright law.”

. “The effect of a character's special abilities and life points on a player's experience is not helpful [to Plaintiff’s argument] because copyright does not protect game rules, procedures, or winning conditions that create the environment for the expressive elements of the game.”

Smithline – BASF 2017 22 ARE THE RULES OF A GAME COPYRIGHTABLE?

TRIPLE TOWN TETRIS V. MINO v. YETI TOWN BANG! v. LOTK

100%

50% % COPIED %

Rules Expression Rules Expression Rules Expression

INFRINGEMENT INFRINGEMENT NOT-INFRINGEMENT

Only if you consider capabilities and roles to be expression

Smithline – BASF 2017 23 Thanks! Any questions?

Mickey Mouse Oswald The Lucky Rabbit [email protected] Rob McHenry, AGC

Patents!

Video Game Development to Distribution

Overview & Legal Considerations

San Francisco Bar Association August 24, 2017

Hiro Tachibana VP & General Counsel Capcom U.S.A., Inc.

MARVEL V. CAPCOM INFINITE Selected Topics From Video Game Development Game Definition

Game Design Document – focused on content Story lines, plots, characters, gameplay, music, etc. Capcom v. Data East (1994): Gameplay Not Copyrightable

Comparison of Fighter's History & Street Fighter Game Definition

Technical Design Document – focused on software technology Platform OS, Software Development Tools, etc. (e.g., Facial Animation and Lip Synchronization Software Tool) McRo v. Capcom, Bandai Namco, et al. Federal Circuit Reversed and Remanded Invalidity Ruling under the Alice case A Recording of Federal Circuit Oral Arguments http://www.cafc.uscourts.gov/node/19824

Lip Synchronization Tool Internal Developer v. External Developer

Video Game Development Agreement Work-Made-For Doctrine under Copyright Act Right to Terminate Copyright Assignment Marvel v. Estate of Jack Kirby settled in 2014

San Lee (employee) and Jack Kirby (contractor), the legendary creators of Marvel superheroes Platform and Other Third Party Licenses Required for Game Development Platform SDK and Distribution License Agreement: PS4, Xbox One, Steam, Nintendo Switch, iOS, & Android Software Development Tools: Unreal Engine & Unity Third Party Content Major Elements of Content License Agreement What property is licensed? What is the scope of license grant and restrictions Licensor’s approval rights Licensor’s IP ownership License Fees and Royalties

Content Legal Review

Avoid Inadvertent IP Misuse Dead Rising 2: Zomboni → Zombie Tank ZAMBONI and the configuration of the Zamboni ice resurfacing machine are registered trademarks of Frank J. Zamboni & Co., Inc

Zomboni Zamboni ESRB Rating (Entertainment Software Rating Board)

A Non-Profit, Self-Regulatory Rating Body Established by ESA and Praised by FTC Age Rating and Content Descriptor

Age Rating Final Gate Keeper for Commercial Distribution

Submission to and Approval by Platform Provider Video Game Distribution

Follows Evolution of Software Distribution Model

DVD Packaged

Traditional Retail Channels: GameStop, Walmart, Target, Best Buy, etc.

Digital Download Platform Digital Storefronts: Xbox Live, PlayStation Store, Steam, Nintendo Store Platform Terms of Service EULA

New Digital Distribution Models

Online Retail Digital Channels Amazon, GameStop Subscription Model Xbox Game Pass Unique Pricing Model Humble Bundle Set Your Own Purchase Price Charity Donation Cloud Gaming PlayStation Now Nvidia Grid Game Video Streaming Twitch