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Please contact us with any questions or comments: [email protected] SMITHLINE TRAINING LLC | 300 MONTGOMERY STREET, SUITE 1000 | SAN FRANCISCO, CA 94104 Are the Rules of a Video Game Now Copyrightable? Smithline Training LLC / smithlinetraining.com Disclaimer 01 Smithline Training LLC is not a law firm 02 Not legal advice 03 No attorney‐client relationship 04 Consult with a lawyer for your particular issues Our 2‐Step Training Approach 1 2 Watch the Episode Attend a Roundtable Ask questions and share best practices Online or in person in San Francisco Feedback Feedback, questions or complaints? [email protected] Tools for this Episode Copyright Code Provisions and Case List Today’s Question Today’s Question In the last few years, two U.S. district courts found video game mechanics or “rules” to be protectable by copyright. A more recent district court started down the same path before reversing itself. So, are the rules of a video game now copyrightable? Today’s Topics 1. What are the Rules of a Video Game? 2. The Historical Approach to Protecting Game Rules 3. The Arcade Game Cases 4. Attack of the Mobile Clones: Tetris and Spry Fox 5. The DaVinci Case 6. Is There Some Other Way to Protect Game Rules? 7. Why Might Video Game Rules be Receiving Greater Protection? 8. Questions from the Roundtable PART 1 What are the Rules of a Video Game? Rules of a Game: Board Game For a board or card game, rules are: 1. Instructions that explain how to play the game, and 2. Method of playing as expressed through game board, cards or pieces. These are the rules for Legends of the Three Kingdoms from the Da Vinci case. Rules of a Game: Video Game For a video game, the “rules” are often the mechanics of the game or “gameplay.” The functional rules which dictate how your can move a character, how points are scored, when you win and lose. Rules of a Game: Video Game Rules of a Game: Theory As Bruce Boyden of Marquette Law says: “Rules establish the game‐space, or ‘magic circle,’ but they do not tell the player what to do inside of it. Indeed, exploring that space, by making moves in the game, is what it means to ‘play’ the game.” “Games are systems [. .]. Systems are shells into which users pour meaning. While they may contain expression themselves, that expression is there merely to facilitate the meaning added by the user.” Games and Other Uncopyrightable Systems, Bruce Boyden, George Mason Law Review, Vol. 18, No. 2, 2011 PART 2 The Historical Approach to Protecting Game Rules Historically, the rules of a game were not protected by copyright. Case Law Case Law . Foster published multiple books on bridge. The particular book at issue in this case was titled: "Foster's Simplified Auction Bridge (with the New Laws)” Case Law “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) U.S. Copyright Code Copyright subsists in “original works of authorship fixed in any tangible medium of expression” but excludes “any idea, procedure, process, system, method of operation, concept, principle, or discovery. “ 17 U.S.C. 102 (a)‐(b) U.S. Copyright Code Copyright subsists in “original works of authorship fixed in any tangible medium of expression” but excludes “any idea, procedure, process, system, method of operation, concept, principle, or discovery. “ 17 U.S.C. 102 (a)‐(b) Copyright Infringement Analysis When comparing two video games for infringement purposes we: 1. Filter out the elements not entitled to copyright. What do we filter out? • Ideas of the game • “Scènes à faire”‐ stock/cliché expressions which necessarily follow from the idea • Rules of a game (either as “ideas” or as a “system”) 2. Compare what’s left to see if it’s “substantially similar.” Copyright Infringement Analysis Note also: thin copyright protection for more factual, prosaic expression and stronger protection for more fanciful or unique expression. PART 3 The Arcade Game Cases In the early cases, courts tried hard to sort out underlying mechanics from protected expression. Atari v. Amusement World (D. Md. 1982) Atari v. Amusement World (D. Md. 1982) Arcade game released by Atari in 1979, Amusement World, a five‐person arcade game quickly becoming one of the biggest servicing company, releases Meteors in 1981. selling games of its time. Atari v. Amusement World (D. Md. 1982) Similar or identical: Principle of game and 22 design features. Differences: 9 items, including: • Meteors in color and more “realistic” • Spaceship takes off from Earth • Faster gameplay • Ability to fire continuously Atari v. Amusement World (D. Md. 1982) NOT INFRINGEMENT: These “similarities are inevitable, given the requirements of the idea of a game involving a spaceship combating space rocks and given the technical demands of the medium of a video game.” Atari v. Amusement World (D. Md. 1982) “[T]o put it bluntly, defendants took plaintiff's idea. However, the copyright laws do not prohibit this.” Atari v. North American Philips (7th Cir. 1982) Arcade game released by Namco in 1980. Philips released “K.C. Munchkin” for their Magnavox Odyssey home game system. Licensed exclusively to Atari for U.S. home game market. Atari v. North American Philips (7th Cir. 1982) SIMILARITIES ALLOWED: “standard game devices” • maze design • scoring table • dots • tunnel exits ‐ “nothing more than the commonly used ’wrap around’ concept adapted to a maze‐chase game” Atari v. North American Philips (7th Cir. 1982) But, gobbler and ghost monster “characters” INFRINGE: . K.C. Munchkin’s gobbler was “virtually identical” to Pac‐Man: • shape of the body • V‐shaped mouth • distinctive gobbling action and sounds • role reversal and regeneration . K.C .Munchkin’s ghost monsters “appear similar in shape and movement to their PAC‐MAN counterparts.” Atari v. North American Philips (7th Cir. 1982) Summary: . maze design, scoring table, dots and tunnel exits: . Constitute scènes à faire and protected against only virtually identical copying. Gobbler and ghost monsters: . Distinct, fanciful “characters” that are fully protected by copyright. Infringement PART 4 Attack of the Mobile Clones: Tetris and Spry Fox In two recent cases involving mobile game clones, courts extended protection to game mechanics that look a lot like “rules.” Tetris Holding v. Xio Interactive (D.C. N.J. 2012) Originally developed in Soviet Union in mid‐1980’s. One of the most successful and widely licensed video games of all time. Tetris Tetris Background . Puzzle game using polyominos. • A polyomino is plane geometric figure formed by joining one or more equal squares edge to edge. Polyomino puzzles date back to the early 1900’s. Alexey Pajitnov cited playing a plastic pentomino (5 square) game as inspiration for Tetris. Tetris uses brightly colored tetromino (4 square) pieces. • Tetris uses all seven possible shapes of tetromino: Tetris Holding v. Xio Interactive (D.C. N.J. 2012) Released for iPhone by small developer Xio in 2009. Mino 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 (D.C. N.J. 2012) Court Rules Out Scènes à Faire . Tetris is a “purely fanciful game, meaning it has no grounding in the real world, unlike a video game simulating a karate match or golf game.” • Scènes à faire has “little weight in instances such as this because there are no expressive elements ‘standard, stock or common’ to a unique puzzle game that is divorced from any real world representation.” • “Xio was free to design a puzzle game using pieces of different shapes instead of using the same seven pieces used in Tetris.” 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 (10 x 20) • 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 Tetris Holding v. Xio Interactive (D.C. N.J. 2012) Ruling was on Summary Judgment No appeal and case settled. Next came a case about a clone of a “match three” game called Triple Town.