In the business of video games, intellectual property protection is critical to success, and Patents, Copyrights, and Trademarks are the bricks with which your IP portfolio is built. The Patent Arcade is the web's primary resource for video game IP law, news, cases, and commentary.
Copyright does not protect the ideas underlying a work or other aspects that are beyond the scope of the Copyright Act. By statute, copyright does not “extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” 17 U.S.C. § 102(b). Several judicial doctrines ensure that copyright does not extend to the ideas underlying a work.... At this stage of the litigation, where the court has only the complaint, its description of Triple Town, and the accompanying screen shot images, the court concludes that 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 ill-placed objects. Spry Fox’s copyright gives it no monopoly over this idea. 6Waves (or anyone else) is free to create a video game based on the same idea.However, the court goes on to analyze similarities of expression between Triple Town and Yeti Town, concluding that there are at least enough similarities to go to trial. Is this over? No. There is a long road ahead. But this Order at least gives us some guidance regarding what is protectable versus what is not. For example, the court also states:
Although the court need not decide the issue in this motion, it appears that some elements of Triple Town are not protectable because they are functional. Much as copyright does not protect ideas, it does not protect the “functional process[es]” that are “indispensable to the idea” inherent in a game. Apple, 35 F.3d at 1444 (considering functional ideas in computer operating system user interface). For example, Spry Fox’s choice of a six-by-six game grid is not likely an expressive choice. A grid that is too small would make the game trivial; a grid that is too large would make it pointless. There is perhaps a range of functionally appropriate choices for the dimensions of the game grid; perhaps a seven-by-seven grid, or a six-by-seven grid, would serve the game’s purposes just as well. But it would extend copyright protection beyond its proper scope to afford protection to a functionally-dictated choice like this one.This is interesting because, in the past, the owners of the Tetris copyright have argued that the size of their grid was an expressive choice. and couldn't be copied. At the time, however, the court did not appear to give much consideration to the functional considerations of grid size in the Tetris context. Perhaps it's time to revisit that notion...
On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State. 17 U.S.C. §301 (a)What this means is that claims brought under state law will be preempted by the Copyright Act if the claim is under the subject matter of the Copyright Act and if the rights sought to be protected are protected by the Copyright Act. Many courts follow the "extra element" test to determine preemption. This case is described by the Second Circuit as follows: "'But if an extra element is required instead of or in addition to the acts of reproduction, performance, distribution or display, in order to constitute a state-created cause of action,' there is no preemption." In other words, a claim is not preempted by the Copyright Act if it includes one extra element that qualitatively differentiates it from a copyright claim.
It’s hard to play The Ville without feeling some wholesale deja vu. . . . [E]very trait that has made The Sims iconic has been rehashed by Zynga. Characters in The Ville communicate via pictographs and a garbled language. Even their bodily gestures are eerily similar to what you find in The Sims.The reviewers at the website Mashable also found similarities between the two games, stating "at first glance, The Ville bears such a striking resemblance to The Sims we’d be surprised if the average person could tell the difference between the two games.” Accordingly, Electronic Arts alleged that Zynga could have designed The Ville in a different way as not to infringe upon Electronic Art's Copyrights.
