Short Answer: Nope Over the last year or so I’ve seen a number of people reacting to a few intellectual property cases in the videogame world with interest. Often the gut reaction is to condemn one company or another, sometimes taking aim at both for different reason, and every so often there are folks who wonder aloud if this is going to be the case which changes the general rule that games are not protected under copyright law. The short answer in pretty much every instance is that, no, games are not going to suddenly slide under that umbrella. Why? Because Section 102 of the Copyright Act says that the law protects: “…original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” And goes on in 102(b) to specifically exclude: “…any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is describe, explained, illustrated, or embodied in such a work.” Games are generally pretty bound up in and defined by the elements listed above, which means that while the language describing rules, the art, or the background fiction might all be original expressions you can protect under copyright law there is no room for simple ideas or what the courts might describe as mere functional elements. That said? If you want to know more, read on. Long Answer: No, But… Well the law is always changing, because court decisions are part of the law, and in this arena there have been a large number of decisions over the past few decades. There is a recent case that highlights how the line between the protectable expression of an idea and a functional procedure may not be as clear as people would like it to be. In DaVinci Editrice S.R.L. v. ZiKo Games, LLC, et al. the federal judge on the case recently issued an initial opinion in response to various motions by the parties, and in crafting her opinion Judge Rosenthal draws on a large body of existing case law to argue about where system crosses over with original expression. Some...Read More
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