Video Games
This document was uploaded by user and they confirmed that they have the permission to share it. If you are author or own the copyright of this book, please report to us by using this DMCA report form. Report DMCA
Overview
Download & View Video Games as PDF for free.
More details
- Words: 6,071
- Pages: 70
Copyright Infringement in Video Games
How much copying is allowed before a clone becomes a copyright infringement? Difference between inspired-followers and copyrightinfringment. A clone infringes an original game if an “ordinary reasonable person” would think that the clone was at least “substantially similar” to the original. “substantial similarity” only in the game’s “copyrightable expression.”
How do we apply idea expression dichotomy to video games? Copyright law never protects the “idea” behind a video game, it only protects the “expression” of that idea. If the expression is creative and original, then it’s protected against “substantially similar” copies. If the expression is not so creative and original, then copyright affords only a “thin” protection. This “thin” copyright prevents identical copying, but allows clones that make even a few minor changes.
Identical Twins: Always Infringement clone that’s basically identical to the original game is always going to be copyright infringement. Nintendo v. Elcon, 564 F. Supp. 937 (ED Mich 1982). Crazy Kong: Crazy Infringement (1982) Elcon made a straight-up identical Donkey Kong clone. According to the judge, Crazy Kong “embodies audio-video material, including the characters on the screen and the sound, that is virtually identical” to Donkey Kong. Crazy Kong copied every detail
Midway v. Artic, 704 F.2d 1009 (7th Cir. 1983) Plaintiff manufactures video game machines. Inside these machines are printed circuit boards capable of causing images to appear on a television picture screen and sounds to emanate from a speaker when an electric current is passed through them. On the outside of each machine are a picture screen, sound speaker, and a lever or button that allows a person using the machine to alter the images appearing on the machine's picture screen and the sounds emanating from its speaker. “Puck Man”, an identical clone of Pac-Man, was prepared by Defendants. The defendant, Artic, even copied the name “Puck Man” from the original Japanese version of the game.
Plaintiff sued defendant alleging that defendant's sale of these two circuit boards infringes its copyrights in its "Galaxian" and "Pac-Man" Plaintiff claims copyrights in audiovisual works--the distinctive set of images and sounds stored in its circuit boards.
Williams Electronics v. Artic International, 685 F.2d 870 (3rd Cir. 1983) Williams made a video game called "Defender" that featured images of spaceships and aliens.
The computer program was hard-wired into a 'ROM' chip inside of the cabinet.
Arctic began producing a knock-off version called "Defense Command" that used pretty much the exact same images and program. Williams sued Arctic for copyright infringement. The Trial Court found for Williams. Arctic appealed.
Arctic argued that Williams could not have a copyright on the material because it was not in a fixed medium.
17 U.S.C. §102(a) requires that a work must be fixed in a tangible medium of expression. Arctic argued that since the images move around on a screen and disappear, they don't meet the definition of 'fixed'. Each time the game is played, the images are redrawn over again. In addition, the player controls the action and is in a sense a 'coauthor' of what appears on the screen.
The Appellate Court affirmed.
The Appellate Court found that the term fixed should be read to mean "sufficiently permanent or stable to permit it to be...reproduced or otherwise communicated." In addition, the Court found that the audiovisual work was permanently embodied in the computer code on the ROM.
See Midway Manufacturing Co. v. Arctic International Inc. (547 F.Supp. 999 (1982)).
The Court found that the player's participation in the game did not withdraw the work from copyright eligibility, because a substantial portion of the images are the same, regardless of how the game is played.
Stern Electronics v. Kaufman, 669 F.2d 852 (2nd Cir. 1982) “Scramble”, an identical clone of “Scramble” was copyright infringement
Copying Ideas is Not Infringement: Atari v. Amusement World, 547 F.Supp. 222 (D. Md. 1981) In this case, Atari made the original Asteroids game and Amusement World made a knockoff called Meteors. Atari sued for copyright infringement. The judge compared Asteroids to Meteors and found 22 similarities. He decided that the “defendants based their game on plaintiff’s copyrighted game; to put it bluntly, defendants took plaintiff’s idea. However, the copyright laws do not prohibit this.” The 22 similarities involved the graphics, game mechanics and sound. According to the judge, they were all part of the unprotectable “idea” of a “video game in which a player fights his way through space rocks and enemy spaceships.”
The court also noted 9 differences, including: Meteors is in color, while Asteroids is in black and white. The symbols for rocks and spaceships in Meteors are shaded to appear three-dimensional, unlike the flat, schematic figures in Asteroids. At the beginning of Meteors, the player’s spaceship is shown blasting off the earth, whereas “Asteroids” begins with the player’s spaceship in outer space. The player’s spaceship in Meteors fires faster and can fire continuously, unlike the player’s spaceship in Asteroids, which can fire only bursts of projectiles. In Meteors, after the player’s spaceship is destroyed, when the new spaceship appears on the screen, the game resumes at the same pace as immediately before the last ship was destroyed; in Asteroids the game resumes at a slower pace.
“Defendants used plaintiff’s idea and those portions of plaintiff’s expression that were inextricably linked to that idea [ “merger rule”]. The remainder of defendants’ expression is different from plaintiff’s expression. Therefore, the Court finds that defendants’ Meteors game is not substantially similar to and is not an infringing copy of plaintiff’s Asteroids game.” Copying a game’s “ideas” is not infringement. The idea of a spaceship blasting out of an asteroid field is not copyrightable. The expression of that idea is copyrightable, but in this particular case, the expression in Meteors was different from the expression in Asteroids. No infringement.
Copying Creative Expression is Infringement: Pac-Man v. K.C. Munchkin (1982) Atari v. Philips, 672 F.2d 607 (7th Cir. 1982) K.C. Munchkin was a Pac-Man clone, but not an identical copy. The court needed to “filter out” the unprotectable elements before looking for substantial similarity and copyright infringement. The judge first separated the unprotectable idea of Pac-Man: PAC-MAN is a maze-chase game in which the player scores points by guiding a central figure through various passageways of a maze and at the same time avoiding collision with certain opponents or pursuit figures which move independently about the maze. Under certain conditions, the central figure may temporarily become empowered to chase and overtake the opponents, thereby scoring bonus points.
The court then filtered out the unprotectable scènes à faire (i.e., stock video game elements): The maze and scoring table are standard game devices, and the tunnel exits are nothing more than the commonly used “wrap around” concept adapted to a maze-chase game. The court then looked at Pac-Man’s protectable creative expression. Comparing only the protectable creative elements, the court found copyright infringement:
The K.C. Munchkin gobbler has several blatantly similar features, including the relative size and shape of the “body,” the V-shaped “mouth,” its distinctive gobbling action (with appropriate sounds), and especially the way in which it disappears upon being captured. An examination of the K.C. Munchkin ghost monsters reveals even more significant visual similarities. In size, shape, and manner of movement, they are virtually identical to their Pac-Man counterparts. K.C. Munchkin’s monsters, for example, exhibit the same peculiar “eye” and “leg” movement. Both games, moreover, express the role reversal and “regeneration” process with such great similarity that an ordinary observer could conclude only that North American copied plaintiffs’ Pac-Man. The idea of a maze-chase game is not copyrightable, and the game mechanics that necessarily flow from the idea are not copyrightable. However, the creative expression of a gobbler and ghosts, the sound effects and the “role reversal” mechanism are protectable video game elements.
Porting is Infringement: Midway v. Bandai, 546 F.Supp. 125 (D. NJ 1982) Galaxian v. Galaxian (1982) Midway made the arcade game Galaxian, and Bandai cloned it with a handheld game called… Galaxian.
The judge first separated the unprotectable idea of the Galaxian game from its expression. Here, the idea of Midway’s Galaxian is relatively simple and easily expressed: it is an outer space video game in which the player controls a rocket ship defending itself against a swarm of computer-controlled attacking aliens who attempt to bomb and collide with the player’s ship.
Similarities: The judge reviewed the expert opinion of two music professors, and agreed that the “musical themes of the two Galaxian games are fundamentally identical.” Likewise, the alien enemies were similar. “The Bandai aliens are unmistakably insectile as are those in Midway’s game. In addition, Bandai’s insect characters bear a close resemblance to Midway’s, both having brightly lighted eyes and two-toned bodies.” The backgrounds were similar (both set in space), and both games had “the same sort of sequential lighting of the stars, creating the same illusion that the characters are moving through space toward the top of the screen.”
Finally, the judge looked at the game play of both Galaxians, and found them similar as well. “Bandai game’s play and sequence of images is extremely similar to Midway’s. Thus, the Bandai aliens fly in a pack and peel off to attack singly or in small groups. As they attack, they invert, as do the Midway creatures. Bandai’s aliens also appear to flap their wings as they fly and attempt to collide with the player’s ship.” Defending a spaceship against swarming alien bad guys is an unprotectable idea. The particular insectile shape of the aliens and their attack patterns and animations are protectable “creative expression.
Williams Electronics, Inc. v. Bally Manufacturing, 568 F.Supp. 1274 (ND Ill 1983) Williams Electronics made Hyperball, a pinball machine with built-in video game elements. Soon after its release, Bally made Rapid Fire, another pinball machine with video game elements.
The judge first separated the unprotectable ideas from the copyrightable expression, and found that “many elements of Hyperball are unprotected. The color, shapes and placements of the targets, ball cannon, grip handles, and indicator lights on the targets, the use of lettered targets to assist the player in scoring, and the shape of the speaker and back box” were functional and non-protectable. In addition, “The colors, shapes and locations of these items have no conceptual significance apart from the role they play in the mechanical operation of the game.” After separating out the functional elements, the judge compared the remaining copyrightable elements.
Judge started by comparing some specific details:: almost complete absence of substantial similarities. The Hyperball playing field contains three columns of thunderbolts. Rapid Fire has only two columns of aliens carrying shields which pass ammunition to two guns. Nothing like the aliens, shields, ammunition or guns appears on the Hyperball playing field. The thunderbolts and aliens are roughly the same color, but there the similarity ends.
Hyperball’s thunderbolts point toward an oval area on which the logo “Energy Center” appears. Below that the word “Hyperball” in lighted block letters appears, and below that “Hyperball” is again written in stylized italics. The Rapid Fire playing field contains no oval area but rather variously colored dotted lines that radiate out from a dotted line in the shape of a semicircle, with the words “Force Field” written in a gothic style below the semi-circle. Hyperball has several “bombs” arrayed along the side of the playing field, but none of the various colored dotted lines that are on the Rapid Fire field.
The judge also compared the overall impression of the two games: But even more important than these specific dissimilarities is the overall difference in the aesthetic impressions generated by the two games: Hyperball displays thunderbolts; the player’s adversary is an impersonal natural force represented by geometric figures. Rapid Fire displays enemy creatures, humanoid in appearance. The Rapid Fire player’s enemy is more personalized and not simply a geometric shape. The differences between the specific details and between the overall impressions were enough to differentiate Rapid Fire from Hyperball. There was no “substantial similarity” and therefore no copyright infringement. A “pinball machine with video game elements” is an unprotectable idea. Rapid Fire copied that idea, as it’s allowed to do.
BM’s Mouser game was suspiciously similar to Frybarger’s Tricky Trapper, so Frybarger sued for copyright infringement. The court noticed several similarities between the two games, but decided that IBM had only copied from the game’s idea, not its expression. The judge specifically identified some of the basic game mechanics as not protectable: Board: The screen of each game is filled with straight rows of pivot points on a solid colored background. Some of the pivot points are connected by solid lines. Hero: Both games have a single protagonist that moves vertically and horizontally, and rearranges the solid lines to capture bad guys and earn points. Bad Guys: In both games, there are several bad guys to capture. The bad guys move toward the hero, and if they catch him, he dies.
Video Games that simulate sports (baseball, soccer, karate) or public-domain card games (like poker) get a very “thin” type of copyright protection. Data East v. Epyx, 862 F.2d 204 (9th Cir. 1988) “World Karate Championship” (right) is a clone, more or less, of “Karate Champ” (left). The two games have similar graphics and game play. The court first filtered out the unprotectable game elements. Data East could not copyright the idea of a karate game, nor any game mechanics that necessarily flow from that idea (the “merger” rule).
The unprotectable elements consist of
the game procedure, common karate moves, the idea of background scenes, a time element, a referee, computer graphics, and bonus points, result from either constraints inherent in the sport of karate or computer restraints. After careful consideration and viewing of these features, we find that they necessarily follow from the idea of a martial arts karate combat game, or are inseparable from, indispensable to, or even standard treatment of the idea of the karate sport. As such, they are not protectable.
As a result, there was no copyright infringement. Epyx copied the “idea” of a Karate video game, but not the non-copyrightable graphics and game mechanics that necessarily flowed from that idea. There is no copyright protection for the idea of a game based on a sport, or for any game elements that necessarily flow from that idea.
CapCom v. Data East (ND CA 1994) The creative elements of video games merit stronger copyright protections than the non-fiction elements. Since Street Fighter II was largely based on non-fiction karate, the judge gave the game a narrow scope of copyright protection: NOTE: there is no question that the games involved in those three cases -– Pac-Man, Galaxian and Donkey Kong –- were far more fanciful than many of the elements presented in Street Fighter II.
While Fighter’s History (right) copied most of its details and game play from Street Fighter II, it was careful not to copy the creative game elements: For example,
Appearance: although Guile and Matlok both have spiky hair and wear similar clothing, they are not identical to one another. Guile is a military figure who wears military garb and has a military base as his home stage. Matlok is a “punkrocker” whose characterization is underscored by his tough appearance and “breakdance” type moves. Their magic projectiles, while similar in appearance, are not identical. In keeping with his personality, Matlok throws a spinning compact disc, the form of which is apparent in some video sequences. Guile, on the other hand, throws a Ch’i mental energy ball and shouts “sonic boom” upon its release. This is in keeping with his military persona.
The judge also excluded any scènes à faire elements (i.e., stock elements, cliches, stereotypes) from its copyright analysis. The judge discussed the “vitality bar” and the winner designation. “Neither these individual features, nor their particular compilation in Street Fighter II. Rather, they are better viewed as unprotectable scènes à faire.”
The court also excluded game control sequences from its analysis under the merger doctrine: For example, to mirror the physical aspects of throwing an object, the developer would want to choose a joystick/button control sequence that consists of pulling the joystick backwards to follow the arms as they draw back and then moving the joystick forward and hitting a punch button as the character winds up and releases the object. The idea of throwing an object and its expression as reflected in a distinct control sequence will, therefore, coincide.
Some special moves were unprotectable “scènes à faire”, while others were copyrightable creative expression. According to the court, these 7 moves were not protectable: “ (1) Sagat’s ‘tiger knee’ which is a common kickboxing move; (2) ‘knee bash’ which is a common wrestling move; (3) Vega’s mid-air throw which is a basic fight maneuver; (4) Vega’s floor slide which again is a basic fight maneuver; (5) Balrog’s ‘dashing punch’ which is a simple punch; (6) Zangief’s ‘backwards throw’; and (7) Zangief’s ‘body leap’ both of which are common wrestling moves.”
Two special moves were protectable: “Chun Li’s head stomp and E. Honda’s 100 hand slap.” Since Fighter’s History only copied (a) non-protectable functional game elements, and (b) non-protectable scènes à faire, it was not infringing the Street Fighter II copyright.. There are three points to take away from this case.
Intuitive game controls are “functional” and therefore not copyrightable. Common wrestling moves are not copyrightable, but magical moves (with no basis in reality) are protectable as creative expression. Original video game characters are copyrightable, but stereotypes are not.
Identical Clones Infringe Even Thin Copyright: Double Up Joker Poker (1986) Kramer Manufacturing v. Andrews, 783 F. 2d 421 (4th Cir. 1986) Kramer Manufacturing made Hi-Lo Double Up Joker Poker (left). Soon after, Drew Distributing and Lynch Enterprises made Joker Poker 54 (right). Kramer sued for copyright infringement. Poker, like karate, is public domain and no one owns a copyright to it. However, Hi-Lo Double Up Joker Poker was poker with a few additional twists and some original artwork. The judge decided that these little additions gave the game just a “taint of originality,” and that this sliver of originality warranted “thin” copyright protection.
Thin copyright protection only works against nearly identical clones. Drew’s game replaced the original “Kramer” logo with its own logo, but otherwise Joker Poker copied every detail of the original game. The judge called the two games “virtually identical” and noted that the dissimilarities “appear quite obviously to be the result of a studied effort to make minor distinctions between the two” games. The defendant was trying “to appropriate the plaintiff’s design either outright or by frivolous variation. Video Games based on old card games or sports will receive only thin copyright protection. Thin copyright might catch identical clones, but not much else. In this case, the clone was close enough to the original to infringe even a thin copyright.
Trackball Control Not Copyrightable: Golden Tee Golf (2005) Incredible Technologies v. Virtual Technologies, 400 F. 3d 1007 (7th Cir. 2005) Incredible Technologies made the popular Golden Tee arcade game (left). Virtual Technologies made PGA Tour (right) with the explicit purpose of cloning Golden Tee. The games and controls were similar: The size and shape of PGA Tour Golf’s control panel, and the placement of its trackball and buttons, are nearly identical to those of Golden Tee. The “shot shaping” choices are depicted in a similar way and in the same sequence. Although the software on the two games is dissimilar, both allow a player to simulate a straight shot, a fade, a slice, a draw, a hook, etc. by the direction in which the trackball is rolled back and pushed forward.
Before comparing the two golf games, the court filtered out the standard golf themes under the scènes à faire doctrine: In presenting a realistic video golf game, one would, by definition, need golf courses, clubs, a selection menu, a golfer, a wind meter, etc. Sand traps and water hazards are a fact of life for golfers, real and virtual. The menu screens are standard to the video arcade game format, as are prompts showing the distance remaining to the hole. As such, the video display is afforded protection only from virtually identical copying.
Golf announcers are apparently scènes à faire. Under copyright law, this means that any golf game can use announcers, but games can’t copy phrases identically. Fortunately for PGA Tour, it didn’t copy the identical phrases: “the fairway would be over there” and “I don’t think that’s going to help a whole lot” in PGA Tour versus “That can only hurt,” “You’ve got to be kidding,” and “You can lead a ball to water but …” from the Golden Tee announcers. Useful articles, like the trackball control, are not copyrightable. A useful article is defined as “an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.” The trackball system of operating the game was considered a useful article, and therefore not subject to copyright protection. Video game controls (like a trackball) are entitled to very little, if any, copyright protection.
Games Can Infringe Movies, Capcom v. MKR Group, 2008 WL 4661479 (N.D. Cal. 2008) Capcom’s Dead Rising game took inspiration from George Romero’s 1979 zombie classic Dawn of the Dead. In its copyright analysis, the judge noted several similarities. In both works: (1) the story kicks off with a helicopter ride to a rural mall infested with zombies; (2) the mall has a gun shop; and (3) propane tanks and chainsaws are used in creative ways to kill zombies. Before comparing the game to the original movie, the court filtered out the unprotectable scènes à faire (i.e., stock zombie elements). Unfortunately for Romero’s Dawn of the Dead, all of the similarities were “driven by the wholly unprotectable concept of humans battling zombies in a mall during a zombie outbreak.” Since Capcom’s video game only copied unprotectable ideas, there was no copyright infringement. Using chainsaws to kill zombies is scènes à faire. It’s cliché, not copyrightable expression.
Tetris v. Xio Interactive, 863 F.Supp.2d 394 (D. NJ 2012) Desiree Golden, started a video game company called Xio Interactive. Before releasing Mino, a Tetris clone for iOS (right), she did her copyright homework: Xio researched copyright law, both through its own independent studying and based on advice of counsel… Based on this research, Xio believed it could freely copy any part of Tetris that was based on a “rule of the game” or that Xio viewed as being functional to the game. She correctly understood the basic rules of copyright law, and that the idea of a fallingblock puzzle game is not part of the Tetris copyright.
The judge identified the unprotectable idea of Tetris: Tetris is a puzzle game where a user manipulates pieces composed of square blocks, each made into a different geometric shape, that fall from the top of the game board to the bottom where the pieces accumulate. The user is given a new piece after the current one reaches the bottom of the available game space. While a piece is falling, the user rotates it in order to fit it in with the accumulated pieces. The object of the puzzle is to fill all spaces along a horizontal line. If that is accomplished, the line is erased, points are earned, and more of the game board is available for play. But if the pieces accumulate and reach the top of the screen, then the game is over. These then are the general, abstract ideas underlying Tetris and cannot be protected by copyright nor can expressive elements that are inseparable from them.
While copyright doesn’t protect these basic ideas about a falling-block puzzle game, it does protect the creative expression of these ideas in Tetris: The style, design, shape, and movement of the pieces are expression; they are not part of the ideas, rules, or functions of the game nor are they essential or inseparable from the ideas, rules, or functions of the game. Xio was free to program a puzzle game with the playing field designed “in an almost unlimited number of ways”…. Xio was not limited to those precise dimensions and was free to take the general idea of having a long game board and express it in its own unique way. For example, it could have had a field three times as high as it is wide or 15 units high by 8 units wide, without copying the exact game dimensions and infringing the look and feel of Tetris’s expression.
The judge specifically called out the 7 basic Tetris shapes as protectable expression: “Xio was also free to design a puzzle game using pieces of different shapes instead of using the same seven pieces used in Tetris.” The judge also decided that the Tetris visual cues were creative expression: Similarly, Mino also displays “garbage” lines, “ghost” pieces, and a preview of the next piece to fall in order to enhance game play as does Tetris…. I am not persuaded that these features constitute either the ideas or rules of Tetris or are necessitated by game play. Moreover, even if these were rules, it is Xio’s copying the same look and feel of these features that lead me to find it has infringed Tetris Holding’s copyright. Xio was free to design other ways to alter game play, making it more or less difficult, using its own original expression to express these features, which it has chosen not to do. Mino infringed the Tetris copyright
Mino infringed the Tetris copyright because it copied the exact same 7 Tetris shapes, used the same board dimensions (10 x 20), the same shape movement down the board, and the same visual cues like garbage lines, ghost pieces and preview pieces. Copyright infringement law is not easy. Even careful developers can get it wrong, and reasonable people can disagree about where to draw the line between idea and expression.
Infringement in Triple Town v. Yeti Town (2012) Spry Fox v. LolApps (WD WA 2012) Spry Fox made Triple Town (left), LolApp made Yeti Town (right). Spry Fox noticed some suspicious similarities, and sued for copyright infringement. As usual, the copyright analysis starts by filtering out the unprotectable ideas: The idea underlying Triple Town is that of a hierarchical matching game, one in which players create objects that are higher in the hierarchy by matching three objects that are lower in the hierarchy. Frustrating the player’s efforts are antagonist objects; aiding the player are objects that destroy unwanted or illplaced objects. Spry Fox’s copyright gives it no monopoly over this idea.
In addition to the unprotectable idea, Triple Town used some unprotectable scènes à faire. This included using points and coins to reward progress, visual game tips in the margins, and incorporating an in-game marketplace for buying upgrades. This is all standard video game fare, not copyrightable expression. The court also filtered out unprotectable game mechanics. Using a six-by-six game grid is not an expressive choice. “A grid that is too small would make the game trivial; a grid that is too large would make it pointless.”
Looking at the remaining protectable game elements, the court decided they were probably infringing: In Triple Town, the antagonist is a bear. In Yeti Town, the antagonist is a yeti… bears and yetis are both wild creatures…. The object hierarchy is similar. Progressing from grass to bush to tree to hut is similar to progressing from sapling to tree to tent to cabin. Perhaps more importantly, the object hierarchy coupled with the depiction of the field of play comprise a setting and theme that is similar to Triple Town’s.
The judge also weighed the wisdom of video game bloggers: “The bloggers, who are ordinary observers of video games, find Yeti Town and Triple Town to be substantially similar.” In any event, this case was settled before a final decision was reached. The settlement details are confidential, but Yeti Town is no longer available in the app store.
Role Playing Card Game Copyrightable (2014) Da Vinci v. Ziko Games (SD Texas 2014)
A case involving non-video games further solidifies the idea that game mechanics can be copyrightable. In this case, DaVinci made the original “Bang!” game (left), and accused Ziko of copyright infringement for its “Legend of the Three Kingdoms” game (right). The parties agreed that the game mechanics were identical, but the game art was entirely different: The parties agree that Bang! and LOTK have nearly identical rules for playing the game. The setting, artwork, and written instructions are substantially different. LOTK is ‘re-set in ancient China instead of the wild-west.’ The ‘ancient Chinese’ themed roles in LOTK (the Monarch, Minister, Rebel, and Turncoat) fulfill the same roles as the Sheriff, Deputy, Outlaw, and Renegade in Bang!.
Drawing on video game cases, the judge decided that the Bang! game rules were not copyrightable. “The similar uses of life points, distance between players, action cards, and rewards and punishments do not constitute actionable copying.” The character roles, unlike game rules, were copyrightable:
The Bang! characters and capabilities were also copyrightable: the corresponding characters in the two games have substantially similar capabilities. Each character card in both games has a name, picture, and a description of the character’s capabilities and life points. The defendants allegedly copied these capabilities and life points, simply changing the names and artwork. The questions are whether these character elements are protected and whether translating the Bang! characters from a Wild West to an ancient China theme infringes that protection. Given the similarities between the attributes of the characters in Bang! and in LOTK, a reasonable factfinder could conclude that the characters of the two games are substantially similar despite the transposition and translation from the Wild-West theme of Bang! to the ancient China theme of LOTK.
Unprotectable
Copyrightable
The idea of a maze-chase game.
The expression of a chomping gobbler antagonized by colorful ghosts.
The idea of a karate style fighting game.
The expression of E. Honda’s “100 hand slap.”
A puzzle where users try to manipulate falling shapes to create gapless rows.
The specific style, design, shape, and movement of the shapes in Tetris
Thin Copyright for Realistic Simulations. Games that closely simulate real life receive weaker copyright protection. The more creative, abstract and original the game elements, the stronger the copyright. Video games that simulate sports or pre-existing card games get “thin” copyright protection – protection against identical clones only. Thin Copyright
Full Copyright
Hi-Lo Double Up Joker Poker, a basic poker simulator.
Pac-Man, a creative mazechase game.
Karate Champ, a basic karate simulator.
Street Fighter II, a fighting simulator with fantasy elements.
Copyright and Video Games What counts as infringement and what doesn't ●
●
●
●
Copying significant elements of source code counts Reverse engineering a game to play an open source alternative counts Copying the GUI (look and feel) of a game does not yet count Making a game of the same genre (platforming, shooter etc.) does not count
What does this mean? ●
●
● ●
It is possible to create a game that has the same look and feel of another similar game
Match 3 games (Bejeweled like games) are a prime example of this Source code is almost completely protected Characters are protected and a lot of the artwork is protected but this does not protect the creators from clones
The Wild West of Video Game Copyright laws ●
●
●
A lot of the laws do not prevent clones from being created or from companies from stealing ideas Video Game developers have used copyright laws to “attack” certain YouTube personalities and twitch streamers Nintendo has recently been placing copyright claims on videos containing content from their games. They have since created the Nintendo’s Creator’s program in order to collect ad revenue from previously mentioned You Tube videos.
How people get around laws ●
●
●
Post to smaller, niche sharing sites that don't automatically remove content that may contain copyrighted works. If they want to post to larger sites, they mirrior the content on smaller sites as well. Post to sites that use off-shore servers and are not subject to the DMCA (Digital Millennium Copyright Act).
To large to stop! ●
●
●
Creating derivative works is the process of using copyrighted material to create something new. Which is illegal if you do not obtain permission from the rights holders.
Although derivative works is often tolerated because of its unique circumstances. The Hitler Reacts meme is a popular example. Despite the approval of the original film's director. The production company began serving DMCA takedown notices to YouTube for parodies because they were “distasteful”. To many were uploaded to YouTube and other sites and the production company stopped the pursuit due to the derivative work becoming to large to silence.
Examples of Stolen Ideas Electronic Arts ●
●
●
Never broke any laws stealing these ideas
Instead they would buy up smaller companies and shut them down a few years later They started shutting down these development companies back in 2001
Companies Killed off by EA ●
Origin – Purchased:1992 Shutdown:2004
●
Bullfrog – Purchased: 1995 Shutdown: 2001
●
Maxis – Purchased: 1997 Shutdown: 2015
●
Westwood: Purchased: 1998 Shutdown: 2003
●
●
DreamWorks Interactive/Danger Close – Purchased: 2000 Shutdown: 2014 This is not a complete list of companies that EA has bought up and shut down.
Candy Crush Saga ●
●
●
●
This is a game that is literally stolen from an independent developer Runsome Apps developed and released Candy Swipe
Candy Swipe Released in 2010, Candy Crush in 2012 After stealing the game, the developer of Candy Crush, King entered into a legal battle over their desire to trademark the words Candy and Saga
Candy Swipe (Left) vs Candy Crush (Right)
The Minecraft Clones ●
●
●
After Minecraft became an insane success the clones started popping up Some of these titles were obvious blatant ripoffs of Minecraft Others just drew inspiration from the sandbox style game
Minecraft Clones ●
●
●
Roblox – unlike Minecraft it is free to play with features locked behind pay walls Minetest – An open source game that looks almost exactly like Minecraft Manic Digger – Another Open Source Game designed to look almost exactly like Minecraft
{
MineTest
{
Manic Digger
Examples of Minecraft Clones
What can be done? ●
●
●
Currently there are not many options to protect game developers The few options available are literally too expensive for indie developers The following list is a financially safe way to protect a game from blatant copyright infringement
Current Options ●
●
●
Open letter with no legal action – Not likely to work but is still an option Polite Cease & Desist Letter – Not often seen in the game development world The Nastygram – The last of the financially safe options and easy to start off with to be used as a last resort
The more expensive options ●
●
●
DMCA take-down notice to Service Provider – This is used to take a product off the market Mediation – Instead of running off to court game companies have hired a mediator to negotiate a solution Litigation – The most expensive option of all of them, this is usually a long and very expensive legal battle
References ●
●
●
●
●
http://metro.co.uk/2014/02/13/candy-crush-saga-makers-to-sue-game-they-copied4303096/ http://www.kotaku.com.au/2015/03/an-updated-list-of-studios-ea-has-bought-andthen-shut-down/ http://similarsam.hubpages.com/hub/games-that-are-like-minecraft-2 http://www.gamasutra.com/blogs/StephenMcArthur/20130805/197650/Respondin g_to_Intellectual_Property_Theft_How_to_Protect_Your_Game_Without_Damagi ng_Your_Companys_Reputation.php
http://lawofthegame.blogspot.com/2007/06/copyright-what-every-gamerdeveloper.html
How much copying is allowed before a clone becomes a copyright infringement? Difference between inspired-followers and copyrightinfringment. A clone infringes an original game if an “ordinary reasonable person” would think that the clone was at least “substantially similar” to the original. “substantial similarity” only in the game’s “copyrightable expression.”
How do we apply idea expression dichotomy to video games? Copyright law never protects the “idea” behind a video game, it only protects the “expression” of that idea. If the expression is creative and original, then it’s protected against “substantially similar” copies. If the expression is not so creative and original, then copyright affords only a “thin” protection. This “thin” copyright prevents identical copying, but allows clones that make even a few minor changes.
Identical Twins: Always Infringement clone that’s basically identical to the original game is always going to be copyright infringement. Nintendo v. Elcon, 564 F. Supp. 937 (ED Mich 1982). Crazy Kong: Crazy Infringement (1982) Elcon made a straight-up identical Donkey Kong clone. According to the judge, Crazy Kong “embodies audio-video material, including the characters on the screen and the sound, that is virtually identical” to Donkey Kong. Crazy Kong copied every detail
Midway v. Artic, 704 F.2d 1009 (7th Cir. 1983) Plaintiff manufactures video game machines. Inside these machines are printed circuit boards capable of causing images to appear on a television picture screen and sounds to emanate from a speaker when an electric current is passed through them. On the outside of each machine are a picture screen, sound speaker, and a lever or button that allows a person using the machine to alter the images appearing on the machine's picture screen and the sounds emanating from its speaker. “Puck Man”, an identical clone of Pac-Man, was prepared by Defendants. The defendant, Artic, even copied the name “Puck Man” from the original Japanese version of the game.
Plaintiff sued defendant alleging that defendant's sale of these two circuit boards infringes its copyrights in its "Galaxian" and "Pac-Man" Plaintiff claims copyrights in audiovisual works--the distinctive set of images and sounds stored in its circuit boards.
Williams Electronics v. Artic International, 685 F.2d 870 (3rd Cir. 1983) Williams made a video game called "Defender" that featured images of spaceships and aliens.
The computer program was hard-wired into a 'ROM' chip inside of the cabinet.
Arctic began producing a knock-off version called "Defense Command" that used pretty much the exact same images and program. Williams sued Arctic for copyright infringement. The Trial Court found for Williams. Arctic appealed.
Arctic argued that Williams could not have a copyright on the material because it was not in a fixed medium.
17 U.S.C. §102(a) requires that a work must be fixed in a tangible medium of expression. Arctic argued that since the images move around on a screen and disappear, they don't meet the definition of 'fixed'. Each time the game is played, the images are redrawn over again. In addition, the player controls the action and is in a sense a 'coauthor' of what appears on the screen.
The Appellate Court affirmed.
The Appellate Court found that the term fixed should be read to mean "sufficiently permanent or stable to permit it to be...reproduced or otherwise communicated." In addition, the Court found that the audiovisual work was permanently embodied in the computer code on the ROM.
See Midway Manufacturing Co. v. Arctic International Inc. (547 F.Supp. 999 (1982)).
The Court found that the player's participation in the game did not withdraw the work from copyright eligibility, because a substantial portion of the images are the same, regardless of how the game is played.
Stern Electronics v. Kaufman, 669 F.2d 852 (2nd Cir. 1982) “Scramble”, an identical clone of “Scramble” was copyright infringement
Copying Ideas is Not Infringement: Atari v. Amusement World, 547 F.Supp. 222 (D. Md. 1981) In this case, Atari made the original Asteroids game and Amusement World made a knockoff called Meteors. Atari sued for copyright infringement. The judge compared Asteroids to Meteors and found 22 similarities. He decided that the “defendants based their game on plaintiff’s copyrighted game; to put it bluntly, defendants took plaintiff’s idea. However, the copyright laws do not prohibit this.” The 22 similarities involved the graphics, game mechanics and sound. According to the judge, they were all part of the unprotectable “idea” of a “video game in which a player fights his way through space rocks and enemy spaceships.”
The court also noted 9 differences, including: Meteors is in color, while Asteroids is in black and white. The symbols for rocks and spaceships in Meteors are shaded to appear three-dimensional, unlike the flat, schematic figures in Asteroids. At the beginning of Meteors, the player’s spaceship is shown blasting off the earth, whereas “Asteroids” begins with the player’s spaceship in outer space. The player’s spaceship in Meteors fires faster and can fire continuously, unlike the player’s spaceship in Asteroids, which can fire only bursts of projectiles. In Meteors, after the player’s spaceship is destroyed, when the new spaceship appears on the screen, the game resumes at the same pace as immediately before the last ship was destroyed; in Asteroids the game resumes at a slower pace.
“Defendants used plaintiff’s idea and those portions of plaintiff’s expression that were inextricably linked to that idea [ “merger rule”]. The remainder of defendants’ expression is different from plaintiff’s expression. Therefore, the Court finds that defendants’ Meteors game is not substantially similar to and is not an infringing copy of plaintiff’s Asteroids game.” Copying a game’s “ideas” is not infringement. The idea of a spaceship blasting out of an asteroid field is not copyrightable. The expression of that idea is copyrightable, but in this particular case, the expression in Meteors was different from the expression in Asteroids. No infringement.
Copying Creative Expression is Infringement: Pac-Man v. K.C. Munchkin (1982) Atari v. Philips, 672 F.2d 607 (7th Cir. 1982) K.C. Munchkin was a Pac-Man clone, but not an identical copy. The court needed to “filter out” the unprotectable elements before looking for substantial similarity and copyright infringement. The judge first separated the unprotectable idea of Pac-Man: PAC-MAN is a maze-chase game in which the player scores points by guiding a central figure through various passageways of a maze and at the same time avoiding collision with certain opponents or pursuit figures which move independently about the maze. Under certain conditions, the central figure may temporarily become empowered to chase and overtake the opponents, thereby scoring bonus points.
The court then filtered out the unprotectable scènes à faire (i.e., stock video game elements): The maze and scoring table are standard game devices, and the tunnel exits are nothing more than the commonly used “wrap around” concept adapted to a maze-chase game. The court then looked at Pac-Man’s protectable creative expression. Comparing only the protectable creative elements, the court found copyright infringement:
The K.C. Munchkin gobbler has several blatantly similar features, including the relative size and shape of the “body,” the V-shaped “mouth,” its distinctive gobbling action (with appropriate sounds), and especially the way in which it disappears upon being captured. An examination of the K.C. Munchkin ghost monsters reveals even more significant visual similarities. In size, shape, and manner of movement, they are virtually identical to their Pac-Man counterparts. K.C. Munchkin’s monsters, for example, exhibit the same peculiar “eye” and “leg” movement. Both games, moreover, express the role reversal and “regeneration” process with such great similarity that an ordinary observer could conclude only that North American copied plaintiffs’ Pac-Man. The idea of a maze-chase game is not copyrightable, and the game mechanics that necessarily flow from the idea are not copyrightable. However, the creative expression of a gobbler and ghosts, the sound effects and the “role reversal” mechanism are protectable video game elements.
Porting is Infringement: Midway v. Bandai, 546 F.Supp. 125 (D. NJ 1982) Galaxian v. Galaxian (1982) Midway made the arcade game Galaxian, and Bandai cloned it with a handheld game called… Galaxian.
The judge first separated the unprotectable idea of the Galaxian game from its expression. Here, the idea of Midway’s Galaxian is relatively simple and easily expressed: it is an outer space video game in which the player controls a rocket ship defending itself against a swarm of computer-controlled attacking aliens who attempt to bomb and collide with the player’s ship.
Similarities: The judge reviewed the expert opinion of two music professors, and agreed that the “musical themes of the two Galaxian games are fundamentally identical.” Likewise, the alien enemies were similar. “The Bandai aliens are unmistakably insectile as are those in Midway’s game. In addition, Bandai’s insect characters bear a close resemblance to Midway’s, both having brightly lighted eyes and two-toned bodies.” The backgrounds were similar (both set in space), and both games had “the same sort of sequential lighting of the stars, creating the same illusion that the characters are moving through space toward the top of the screen.”
Finally, the judge looked at the game play of both Galaxians, and found them similar as well. “Bandai game’s play and sequence of images is extremely similar to Midway’s. Thus, the Bandai aliens fly in a pack and peel off to attack singly or in small groups. As they attack, they invert, as do the Midway creatures. Bandai’s aliens also appear to flap their wings as they fly and attempt to collide with the player’s ship.” Defending a spaceship against swarming alien bad guys is an unprotectable idea. The particular insectile shape of the aliens and their attack patterns and animations are protectable “creative expression.
Williams Electronics, Inc. v. Bally Manufacturing, 568 F.Supp. 1274 (ND Ill 1983) Williams Electronics made Hyperball, a pinball machine with built-in video game elements. Soon after its release, Bally made Rapid Fire, another pinball machine with video game elements.
The judge first separated the unprotectable ideas from the copyrightable expression, and found that “many elements of Hyperball are unprotected. The color, shapes and placements of the targets, ball cannon, grip handles, and indicator lights on the targets, the use of lettered targets to assist the player in scoring, and the shape of the speaker and back box” were functional and non-protectable. In addition, “The colors, shapes and locations of these items have no conceptual significance apart from the role they play in the mechanical operation of the game.” After separating out the functional elements, the judge compared the remaining copyrightable elements.
Judge started by comparing some specific details:: almost complete absence of substantial similarities. The Hyperball playing field contains three columns of thunderbolts. Rapid Fire has only two columns of aliens carrying shields which pass ammunition to two guns. Nothing like the aliens, shields, ammunition or guns appears on the Hyperball playing field. The thunderbolts and aliens are roughly the same color, but there the similarity ends.
Hyperball’s thunderbolts point toward an oval area on which the logo “Energy Center” appears. Below that the word “Hyperball” in lighted block letters appears, and below that “Hyperball” is again written in stylized italics. The Rapid Fire playing field contains no oval area but rather variously colored dotted lines that radiate out from a dotted line in the shape of a semicircle, with the words “Force Field” written in a gothic style below the semi-circle. Hyperball has several “bombs” arrayed along the side of the playing field, but none of the various colored dotted lines that are on the Rapid Fire field.
The judge also compared the overall impression of the two games: But even more important than these specific dissimilarities is the overall difference in the aesthetic impressions generated by the two games: Hyperball displays thunderbolts; the player’s adversary is an impersonal natural force represented by geometric figures. Rapid Fire displays enemy creatures, humanoid in appearance. The Rapid Fire player’s enemy is more personalized and not simply a geometric shape. The differences between the specific details and between the overall impressions were enough to differentiate Rapid Fire from Hyperball. There was no “substantial similarity” and therefore no copyright infringement. A “pinball machine with video game elements” is an unprotectable idea. Rapid Fire copied that idea, as it’s allowed to do.
BM’s Mouser game was suspiciously similar to Frybarger’s Tricky Trapper, so Frybarger sued for copyright infringement. The court noticed several similarities between the two games, but decided that IBM had only copied from the game’s idea, not its expression. The judge specifically identified some of the basic game mechanics as not protectable: Board: The screen of each game is filled with straight rows of pivot points on a solid colored background. Some of the pivot points are connected by solid lines. Hero: Both games have a single protagonist that moves vertically and horizontally, and rearranges the solid lines to capture bad guys and earn points. Bad Guys: In both games, there are several bad guys to capture. The bad guys move toward the hero, and if they catch him, he dies.
Video Games that simulate sports (baseball, soccer, karate) or public-domain card games (like poker) get a very “thin” type of copyright protection. Data East v. Epyx, 862 F.2d 204 (9th Cir. 1988) “World Karate Championship” (right) is a clone, more or less, of “Karate Champ” (left). The two games have similar graphics and game play. The court first filtered out the unprotectable game elements. Data East could not copyright the idea of a karate game, nor any game mechanics that necessarily flow from that idea (the “merger” rule).
The unprotectable elements consist of
the game procedure, common karate moves, the idea of background scenes, a time element, a referee, computer graphics, and bonus points, result from either constraints inherent in the sport of karate or computer restraints. After careful consideration and viewing of these features, we find that they necessarily follow from the idea of a martial arts karate combat game, or are inseparable from, indispensable to, or even standard treatment of the idea of the karate sport. As such, they are not protectable.
As a result, there was no copyright infringement. Epyx copied the “idea” of a Karate video game, but not the non-copyrightable graphics and game mechanics that necessarily flowed from that idea. There is no copyright protection for the idea of a game based on a sport, or for any game elements that necessarily flow from that idea.
CapCom v. Data East (ND CA 1994) The creative elements of video games merit stronger copyright protections than the non-fiction elements. Since Street Fighter II was largely based on non-fiction karate, the judge gave the game a narrow scope of copyright protection: NOTE: there is no question that the games involved in those three cases -– Pac-Man, Galaxian and Donkey Kong –- were far more fanciful than many of the elements presented in Street Fighter II.
While Fighter’s History (right) copied most of its details and game play from Street Fighter II, it was careful not to copy the creative game elements: For example,
Appearance: although Guile and Matlok both have spiky hair and wear similar clothing, they are not identical to one another. Guile is a military figure who wears military garb and has a military base as his home stage. Matlok is a “punkrocker” whose characterization is underscored by his tough appearance and “breakdance” type moves. Their magic projectiles, while similar in appearance, are not identical. In keeping with his personality, Matlok throws a spinning compact disc, the form of which is apparent in some video sequences. Guile, on the other hand, throws a Ch’i mental energy ball and shouts “sonic boom” upon its release. This is in keeping with his military persona.
The judge also excluded any scènes à faire elements (i.e., stock elements, cliches, stereotypes) from its copyright analysis. The judge discussed the “vitality bar” and the winner designation. “Neither these individual features, nor their particular compilation in Street Fighter II. Rather, they are better viewed as unprotectable scènes à faire.”
The court also excluded game control sequences from its analysis under the merger doctrine: For example, to mirror the physical aspects of throwing an object, the developer would want to choose a joystick/button control sequence that consists of pulling the joystick backwards to follow the arms as they draw back and then moving the joystick forward and hitting a punch button as the character winds up and releases the object. The idea of throwing an object and its expression as reflected in a distinct control sequence will, therefore, coincide.
Some special moves were unprotectable “scènes à faire”, while others were copyrightable creative expression. According to the court, these 7 moves were not protectable: “ (1) Sagat’s ‘tiger knee’ which is a common kickboxing move; (2) ‘knee bash’ which is a common wrestling move; (3) Vega’s mid-air throw which is a basic fight maneuver; (4) Vega’s floor slide which again is a basic fight maneuver; (5) Balrog’s ‘dashing punch’ which is a simple punch; (6) Zangief’s ‘backwards throw’; and (7) Zangief’s ‘body leap’ both of which are common wrestling moves.”
Two special moves were protectable: “Chun Li’s head stomp and E. Honda’s 100 hand slap.” Since Fighter’s History only copied (a) non-protectable functional game elements, and (b) non-protectable scènes à faire, it was not infringing the Street Fighter II copyright.. There are three points to take away from this case.
Intuitive game controls are “functional” and therefore not copyrightable. Common wrestling moves are not copyrightable, but magical moves (with no basis in reality) are protectable as creative expression. Original video game characters are copyrightable, but stereotypes are not.
Identical Clones Infringe Even Thin Copyright: Double Up Joker Poker (1986) Kramer Manufacturing v. Andrews, 783 F. 2d 421 (4th Cir. 1986) Kramer Manufacturing made Hi-Lo Double Up Joker Poker (left). Soon after, Drew Distributing and Lynch Enterprises made Joker Poker 54 (right). Kramer sued for copyright infringement. Poker, like karate, is public domain and no one owns a copyright to it. However, Hi-Lo Double Up Joker Poker was poker with a few additional twists and some original artwork. The judge decided that these little additions gave the game just a “taint of originality,” and that this sliver of originality warranted “thin” copyright protection.
Thin copyright protection only works against nearly identical clones. Drew’s game replaced the original “Kramer” logo with its own logo, but otherwise Joker Poker copied every detail of the original game. The judge called the two games “virtually identical” and noted that the dissimilarities “appear quite obviously to be the result of a studied effort to make minor distinctions between the two” games. The defendant was trying “to appropriate the plaintiff’s design either outright or by frivolous variation. Video Games based on old card games or sports will receive only thin copyright protection. Thin copyright might catch identical clones, but not much else. In this case, the clone was close enough to the original to infringe even a thin copyright.
Trackball Control Not Copyrightable: Golden Tee Golf (2005) Incredible Technologies v. Virtual Technologies, 400 F. 3d 1007 (7th Cir. 2005) Incredible Technologies made the popular Golden Tee arcade game (left). Virtual Technologies made PGA Tour (right) with the explicit purpose of cloning Golden Tee. The games and controls were similar: The size and shape of PGA Tour Golf’s control panel, and the placement of its trackball and buttons, are nearly identical to those of Golden Tee. The “shot shaping” choices are depicted in a similar way and in the same sequence. Although the software on the two games is dissimilar, both allow a player to simulate a straight shot, a fade, a slice, a draw, a hook, etc. by the direction in which the trackball is rolled back and pushed forward.
Before comparing the two golf games, the court filtered out the standard golf themes under the scènes à faire doctrine: In presenting a realistic video golf game, one would, by definition, need golf courses, clubs, a selection menu, a golfer, a wind meter, etc. Sand traps and water hazards are a fact of life for golfers, real and virtual. The menu screens are standard to the video arcade game format, as are prompts showing the distance remaining to the hole. As such, the video display is afforded protection only from virtually identical copying.
Golf announcers are apparently scènes à faire. Under copyright law, this means that any golf game can use announcers, but games can’t copy phrases identically. Fortunately for PGA Tour, it didn’t copy the identical phrases: “the fairway would be over there” and “I don’t think that’s going to help a whole lot” in PGA Tour versus “That can only hurt,” “You’ve got to be kidding,” and “You can lead a ball to water but …” from the Golden Tee announcers. Useful articles, like the trackball control, are not copyrightable. A useful article is defined as “an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.” The trackball system of operating the game was considered a useful article, and therefore not subject to copyright protection. Video game controls (like a trackball) are entitled to very little, if any, copyright protection.
Games Can Infringe Movies, Capcom v. MKR Group, 2008 WL 4661479 (N.D. Cal. 2008) Capcom’s Dead Rising game took inspiration from George Romero’s 1979 zombie classic Dawn of the Dead. In its copyright analysis, the judge noted several similarities. In both works: (1) the story kicks off with a helicopter ride to a rural mall infested with zombies; (2) the mall has a gun shop; and (3) propane tanks and chainsaws are used in creative ways to kill zombies. Before comparing the game to the original movie, the court filtered out the unprotectable scènes à faire (i.e., stock zombie elements). Unfortunately for Romero’s Dawn of the Dead, all of the similarities were “driven by the wholly unprotectable concept of humans battling zombies in a mall during a zombie outbreak.” Since Capcom’s video game only copied unprotectable ideas, there was no copyright infringement. Using chainsaws to kill zombies is scènes à faire. It’s cliché, not copyrightable expression.
Tetris v. Xio Interactive, 863 F.Supp.2d 394 (D. NJ 2012) Desiree Golden, started a video game company called Xio Interactive. Before releasing Mino, a Tetris clone for iOS (right), she did her copyright homework: Xio researched copyright law, both through its own independent studying and based on advice of counsel… Based on this research, Xio believed it could freely copy any part of Tetris that was based on a “rule of the game” or that Xio viewed as being functional to the game. She correctly understood the basic rules of copyright law, and that the idea of a fallingblock puzzle game is not part of the Tetris copyright.
The judge identified the unprotectable idea of Tetris: Tetris is a puzzle game where a user manipulates pieces composed of square blocks, each made into a different geometric shape, that fall from the top of the game board to the bottom where the pieces accumulate. The user is given a new piece after the current one reaches the bottom of the available game space. While a piece is falling, the user rotates it in order to fit it in with the accumulated pieces. The object of the puzzle is to fill all spaces along a horizontal line. If that is accomplished, the line is erased, points are earned, and more of the game board is available for play. But if the pieces accumulate and reach the top of the screen, then the game is over. These then are the general, abstract ideas underlying Tetris and cannot be protected by copyright nor can expressive elements that are inseparable from them.
While copyright doesn’t protect these basic ideas about a falling-block puzzle game, it does protect the creative expression of these ideas in Tetris: The style, design, shape, and movement of the pieces are expression; they are not part of the ideas, rules, or functions of the game nor are they essential or inseparable from the ideas, rules, or functions of the game. Xio was free to program a puzzle game with the playing field designed “in an almost unlimited number of ways”…. Xio was not limited to those precise dimensions and was free to take the general idea of having a long game board and express it in its own unique way. For example, it could have had a field three times as high as it is wide or 15 units high by 8 units wide, without copying the exact game dimensions and infringing the look and feel of Tetris’s expression.
The judge specifically called out the 7 basic Tetris shapes as protectable expression: “Xio was also free to design a puzzle game using pieces of different shapes instead of using the same seven pieces used in Tetris.” The judge also decided that the Tetris visual cues were creative expression: Similarly, Mino also displays “garbage” lines, “ghost” pieces, and a preview of the next piece to fall in order to enhance game play as does Tetris…. I am not persuaded that these features constitute either the ideas or rules of Tetris or are necessitated by game play. Moreover, even if these were rules, it is Xio’s copying the same look and feel of these features that lead me to find it has infringed Tetris Holding’s copyright. Xio was free to design other ways to alter game play, making it more or less difficult, using its own original expression to express these features, which it has chosen not to do. Mino infringed the Tetris copyright
Mino infringed the Tetris copyright because it copied the exact same 7 Tetris shapes, used the same board dimensions (10 x 20), the same shape movement down the board, and the same visual cues like garbage lines, ghost pieces and preview pieces. Copyright infringement law is not easy. Even careful developers can get it wrong, and reasonable people can disagree about where to draw the line between idea and expression.
Infringement in Triple Town v. Yeti Town (2012) Spry Fox v. LolApps (WD WA 2012) Spry Fox made Triple Town (left), LolApp made Yeti Town (right). Spry Fox noticed some suspicious similarities, and sued for copyright infringement. As usual, the copyright analysis starts by filtering out the unprotectable ideas: The idea underlying Triple Town is that of a hierarchical matching game, one in which players create objects that are higher in the hierarchy by matching three objects that are lower in the hierarchy. Frustrating the player’s efforts are antagonist objects; aiding the player are objects that destroy unwanted or illplaced objects. Spry Fox’s copyright gives it no monopoly over this idea.
In addition to the unprotectable idea, Triple Town used some unprotectable scènes à faire. This included using points and coins to reward progress, visual game tips in the margins, and incorporating an in-game marketplace for buying upgrades. This is all standard video game fare, not copyrightable expression. The court also filtered out unprotectable game mechanics. Using a six-by-six game grid is not an expressive choice. “A grid that is too small would make the game trivial; a grid that is too large would make it pointless.”
Looking at the remaining protectable game elements, the court decided they were probably infringing: In Triple Town, the antagonist is a bear. In Yeti Town, the antagonist is a yeti… bears and yetis are both wild creatures…. The object hierarchy is similar. Progressing from grass to bush to tree to hut is similar to progressing from sapling to tree to tent to cabin. Perhaps more importantly, the object hierarchy coupled with the depiction of the field of play comprise a setting and theme that is similar to Triple Town’s.
The judge also weighed the wisdom of video game bloggers: “The bloggers, who are ordinary observers of video games, find Yeti Town and Triple Town to be substantially similar.” In any event, this case was settled before a final decision was reached. The settlement details are confidential, but Yeti Town is no longer available in the app store.
Role Playing Card Game Copyrightable (2014) Da Vinci v. Ziko Games (SD Texas 2014)
A case involving non-video games further solidifies the idea that game mechanics can be copyrightable. In this case, DaVinci made the original “Bang!” game (left), and accused Ziko of copyright infringement for its “Legend of the Three Kingdoms” game (right). The parties agreed that the game mechanics were identical, but the game art was entirely different: The parties agree that Bang! and LOTK have nearly identical rules for playing the game. The setting, artwork, and written instructions are substantially different. LOTK is ‘re-set in ancient China instead of the wild-west.’ The ‘ancient Chinese’ themed roles in LOTK (the Monarch, Minister, Rebel, and Turncoat) fulfill the same roles as the Sheriff, Deputy, Outlaw, and Renegade in Bang!.
Drawing on video game cases, the judge decided that the Bang! game rules were not copyrightable. “The similar uses of life points, distance between players, action cards, and rewards and punishments do not constitute actionable copying.” The character roles, unlike game rules, were copyrightable:
The Bang! characters and capabilities were also copyrightable: the corresponding characters in the two games have substantially similar capabilities. Each character card in both games has a name, picture, and a description of the character’s capabilities and life points. The defendants allegedly copied these capabilities and life points, simply changing the names and artwork. The questions are whether these character elements are protected and whether translating the Bang! characters from a Wild West to an ancient China theme infringes that protection. Given the similarities between the attributes of the characters in Bang! and in LOTK, a reasonable factfinder could conclude that the characters of the two games are substantially similar despite the transposition and translation from the Wild-West theme of Bang! to the ancient China theme of LOTK.
Unprotectable
Copyrightable
The idea of a maze-chase game.
The expression of a chomping gobbler antagonized by colorful ghosts.
The idea of a karate style fighting game.
The expression of E. Honda’s “100 hand slap.”
A puzzle where users try to manipulate falling shapes to create gapless rows.
The specific style, design, shape, and movement of the shapes in Tetris
Thin Copyright for Realistic Simulations. Games that closely simulate real life receive weaker copyright protection. The more creative, abstract and original the game elements, the stronger the copyright. Video games that simulate sports or pre-existing card games get “thin” copyright protection – protection against identical clones only. Thin Copyright
Full Copyright
Hi-Lo Double Up Joker Poker, a basic poker simulator.
Pac-Man, a creative mazechase game.
Karate Champ, a basic karate simulator.
Street Fighter II, a fighting simulator with fantasy elements.
Copyright and Video Games What counts as infringement and what doesn't ●
●
●
●
Copying significant elements of source code counts Reverse engineering a game to play an open source alternative counts Copying the GUI (look and feel) of a game does not yet count Making a game of the same genre (platforming, shooter etc.) does not count
What does this mean? ●
●
● ●
It is possible to create a game that has the same look and feel of another similar game
Match 3 games (Bejeweled like games) are a prime example of this Source code is almost completely protected Characters are protected and a lot of the artwork is protected but this does not protect the creators from clones
The Wild West of Video Game Copyright laws ●
●
●
A lot of the laws do not prevent clones from being created or from companies from stealing ideas Video Game developers have used copyright laws to “attack” certain YouTube personalities and twitch streamers Nintendo has recently been placing copyright claims on videos containing content from their games. They have since created the Nintendo’s Creator’s program in order to collect ad revenue from previously mentioned You Tube videos.
How people get around laws ●
●
●
Post to smaller, niche sharing sites that don't automatically remove content that may contain copyrighted works. If they want to post to larger sites, they mirrior the content on smaller sites as well. Post to sites that use off-shore servers and are not subject to the DMCA (Digital Millennium Copyright Act).
To large to stop! ●
●
●
Creating derivative works is the process of using copyrighted material to create something new. Which is illegal if you do not obtain permission from the rights holders.
Although derivative works is often tolerated because of its unique circumstances. The Hitler Reacts meme is a popular example. Despite the approval of the original film's director. The production company began serving DMCA takedown notices to YouTube for parodies because they were “distasteful”. To many were uploaded to YouTube and other sites and the production company stopped the pursuit due to the derivative work becoming to large to silence.
Examples of Stolen Ideas Electronic Arts ●
●
●
Never broke any laws stealing these ideas
Instead they would buy up smaller companies and shut them down a few years later They started shutting down these development companies back in 2001
Companies Killed off by EA ●
Origin – Purchased:1992 Shutdown:2004
●
Bullfrog – Purchased: 1995 Shutdown: 2001
●
Maxis – Purchased: 1997 Shutdown: 2015
●
Westwood: Purchased: 1998 Shutdown: 2003
●
●
DreamWorks Interactive/Danger Close – Purchased: 2000 Shutdown: 2014 This is not a complete list of companies that EA has bought up and shut down.
Candy Crush Saga ●
●
●
●
This is a game that is literally stolen from an independent developer Runsome Apps developed and released Candy Swipe
Candy Swipe Released in 2010, Candy Crush in 2012 After stealing the game, the developer of Candy Crush, King entered into a legal battle over their desire to trademark the words Candy and Saga
Candy Swipe (Left) vs Candy Crush (Right)
The Minecraft Clones ●
●
●
After Minecraft became an insane success the clones started popping up Some of these titles were obvious blatant ripoffs of Minecraft Others just drew inspiration from the sandbox style game
Minecraft Clones ●
●
●
Roblox – unlike Minecraft it is free to play with features locked behind pay walls Minetest – An open source game that looks almost exactly like Minecraft Manic Digger – Another Open Source Game designed to look almost exactly like Minecraft
{
MineTest
{
Manic Digger
Examples of Minecraft Clones
What can be done? ●
●
●
Currently there are not many options to protect game developers The few options available are literally too expensive for indie developers The following list is a financially safe way to protect a game from blatant copyright infringement
Current Options ●
●
●
Open letter with no legal action – Not likely to work but is still an option Polite Cease & Desist Letter – Not often seen in the game development world The Nastygram – The last of the financially safe options and easy to start off with to be used as a last resort
The more expensive options ●
●
●
DMCA take-down notice to Service Provider – This is used to take a product off the market Mediation – Instead of running off to court game companies have hired a mediator to negotiate a solution Litigation – The most expensive option of all of them, this is usually a long and very expensive legal battle
References ●
●
●
●
●
http://metro.co.uk/2014/02/13/candy-crush-saga-makers-to-sue-game-they-copied4303096/ http://www.kotaku.com.au/2015/03/an-updated-list-of-studios-ea-has-bought-andthen-shut-down/ http://similarsam.hubpages.com/hub/games-that-are-like-minecraft-2 http://www.gamasutra.com/blogs/StephenMcArthur/20130805/197650/Respondin g_to_Intellectual_Property_Theft_How_to_Protect_Your_Game_Without_Damagi ng_Your_Companys_Reputation.php
http://lawofthegame.blogspot.com/2007/06/copyright-what-every-gamerdeveloper.html
Related Documents
Video Games
October 2019 13
Video Games
April 2020 6
Video Games
October 2019 12
Video Games
June 2020 7
Video Games
June 2020 5
Io314g-video-games
November 2019 11More Documents from ""
Kelly V. Arriba Soft Corp..pdf
June 2020 6
Video Games
June 2020 5
A.docx
December 2019 4
Dakhara Teachogenretor 133
June 2020 4