Copyright & Games: Is the Law Changing?
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 future party could potentially use this opinion as a rather handy guide, should they ever find themselves in that gray area, and I believe that the law it covers will be of interest to designers from the various flavors of tabletop games (roleplaying, card, and board games).
The core of the case, at this point, is that ZiKo and Yoka are selling a game called Legends of the Three Kingdoms “the same rules, methods of play, and roles” as DaVinci’s game Bang! “but substitutes characters and themes from ancient China” and DaVinci alleges that doing so has infringed on protected materials (it provided a chart which noted 64 different similarities, and the judge divided them into four categories).
The fact that the rules are pretty much identical in function, though not exact text, and the various character roles as well as actual cards in the game have been reproduced in a new “skin” isn’t in contention by either party. For those not familiar with Bang! I almost want to repost Judge Rosenthal’s entire summary, as it’s remarkably clear, but will settle for linking to this rules overview on Wikipedia (I promise it is brief).
Judge Rosenthal concludes that the nature of the Character Cards and the Roles (a Sheriff after Outlaws & the Renegade, Deputies trying to protect the Sheriff, Outlaws trying to kill the Sheriff, the Renegade looking to be the last one standing, and all of them but the first a secret from other players) in Bang! are original expressions that go beyond a functional process or method, making them protectable.
There is a ton of interesting material, and implications, in how she got to her conclusion.
Before I go any further here, I want to make a few things clear:
- Judge Rosenthal’s primary purpose was to determine whether there were grounds to dismiss DaVinci’s claim against ZiKo and Yoka. She puts together a strong argument for why DaVinci’s claim is good, but she’s looking at what is possible or required by the law rather than making a ruling.
- This is not precedent in the way that most people mean. This case could be settled out of court, or if it went to a jury they might decide that despite everything the protectable elements are not substantially similar enough. See above.
- This is just an educational look at an interesting case, from far outside the loop on what information the two parties have, and not legal advice and definitely not to be construed as the creation of an attorney/client relationship. I like Douglas Linn’s comment:
‘The law is complex. This article is not. I am purposely avoiding throwing intense legal doctrine at you. Please read the words “most of the time, and there are exceptions” into any sentence you’re about to argue with me on.’
So, most people might be aware that “you can’t copyright games” or “you can’t copyright game rules” but as the definitions I mentioned above show it is more complex than that. Those broad statements are held to be generally true because of the close relationship between games and the mechanisms of play, with many of the older cases dealing with variations on widely-known games based on the traditional 52-card deck.
See, because ideas aren’t themselves protected by copyright, courts tended to issue opinions that found “[w]hen an idea is so restrictive that it necessarily requires a particular form of expression, that is, when the idea and its expression are functionally inseparable, to permit the copyrighting of the expression would be to grant the copyright owner a monopoly of the idea” (Freedman v. Grolier, regarding adding numerical point values to honor cards in bridge decks).
In any case, Judge Rosenthal lays a good deal of groundwork for the idea that, while many of these cases shot down protections, they often did find that protection in similar cases may be possible. Even while a game’s control panel and instructions were just functional, “sequences” and “arrangements” in games can indeed add a layer to a work that is entitled to copyright protection.
In my opinion the four most notable precedents the judge pulls up, and the findings she takes from them, are:
1) Tetris Holding, LLC v. Xio Interactive, Inc. – “[T]he dimensions of the playing field, the display of ‘garbage’ lines, the appearance of ‘ghost’ or shadow pieces, the display of the next piece to fall, the change in color of the pieces when they lock with the accumulated pieces, and the appearance of squares automatically filling in the game board when the game is over” are protectable even when they have functional roles.Also noted that just because rules by themselves are not copyrightable, this “does not mean, and cannot mean, that any and all expression related to a game rule or game function is unprotect[a]ble.”
2) Midway Mfg. Co. v. Strohon – Even though a PAC-MAN modification kit called “CUTE-SEE” went out of its way to cover elements of game cabinets and remove in-game assets that would infringe on Midway’s audiovisual property, the underlying “literature” (here meaning object code on the chips) was infringed.Meaning that just because you are not infringing on one protectable facet of a property, which in the Bang!/LOTK case means the art, does not mean there isn’t an infringement.
3) Capcom U.S.A., Inc. v. Data East Corp. – A character or game element (in this case special a special move) isn’t examined without context when determining if there is enough similarity to find infringement, or whether a work is protectable. Instead “a court looks at the ‘totality [of the characters’] attributes and traits’ as well as the extent to which the defendants’ characters capture the ‘total concept and feel’ of figures in the plaintiff’s work.
Characters that are just archetypes, broad caricatures or “stock” characters, aren’t entitled to protection.
4) Spry Fox LLC v. LOLApps Inc. – The court denied a motion to dismiss, holding that the game’s “object hierarchy that progresse[d] from grass to bushes to trees to houses and beyond” (where you combine three of a kind to get one of the next level up) was a copyrightable element of expression. In that case it was a matter of two games which played almost identically but which had different themes for objects and enemies.
Here Judge Rosenthal outright says, “The player’s roles in Bang! are analogous to the object hierarchy in Spry Fox.”
With me so far? Because there were a bunch of cases that I would love to go on about, but the general arc of the judge’s thinking should be apparent there.
Using the Tetris case she establishes that functional does not mean unprotectable, meaning that even if game elements are all DaVinci can base a claim on there may still be a case.
With Midway she shows that ZiKo and Yoka having changed the art does not mean the works can’t be substantially similar enough in other ways to be infringement.
From Capcom she gathers that if the Bang! character cards aren’t stock, and she feels that they are original expressions despite being inspired by Wild-West models, they are protectable. If that is the case, and other than the art the character cards in the two games are just about identical, this would be bad for the defendants.
And Spry Fox gives an example of how “the sequence of [a work’s] events [and] the development of the interplay of its characters” could end up being a copyrightable element.
Her final paragraphs from the analysis of that issue are perhaps worth sharing in their entirety, as they speak pretty clearly for themselves (bolding mine):
As a role-playing game, Bang! differs from traditional games that have received little or no © protection. Role-playing games are not necessarily played with a 52-card deck, with its limited possibilities for creative expression or interactive variety. Role-playing games are also far less limited than most games by mechanical processes such as the roll of dice or the pattern of a game board. The driving forces behind the experience of a role-playing game are individual decisions and the interactions among the players. The creative methods a game designer uses to define and shape that experience are the expressive elements that are protectable under © law. The impact that artwork has on the “total concept and feel” of a role-playing game has less relative significance than the manner of game play that the creator defines through expressive choices such as player roles.
The characters of Bang! and the roles defining the interaction among the players are creative expressions protected by ©. The side-by-side comparison shows substantial similarity between the characters and roles in Bang! and the corresponding characters and roles in LOTK. DaVinci has stated a claim on which relief can be granted. Yoka and ZiKo’s motion to dismiss the copyright infringement claim is denied.
So, no, the place of games under copyright law isn’t going to dramatically change overnight. As the judge’s opinion shows, the legal interplay between copyrightable expressions and those which can’t be protected has existed for a while now in “modern” gaming, going the way of the party seeking protection a number of times, without causing a sea change.
But, there are some compelling arguments that game elements popular to many tabletop RPGs might be closer to that line than is commonly recognized. Maybe.
Hopefully you found that overview interesting, or at least informative, and I do recommend taking a swing at the opinion itself even if you’re not much for legal writing. Just be careful you don’t find yourself reading all those old videogame cases like I did, because I lost hours.