According to a recent study by Flurry Analytics, in the first two months of 2012 over 50% of all user app sessions on Android and iOS mobile devices involved video games. GamesIndustry International recently reported that by 2017 global revenue from video game software is expected to grow to $70 billion by 2017. With significant money and consumer interest in play, it’s not surprising that software developers are rushing to feed the gaming frenzy. In some cases, game developers may be inspired by the world’s most successful mobile gaming apps like Tetris, Angry Birds, Bejeweled and many others.
However, a recent court decision warns that game developers must recognize that the difference between “inspiration” and “copying” may be subtle. Falling into the wrong category can result in significant consequences. In Tetris Holding LLC v XIO Interactive Inc. (D.N.J May 30, 2012), the court considered the issue of Mino, a falling geometric tile game that XIO first offered in 2009. Mino included many of the same geometric shapes, the same playing area design, and the same rules as Tetris. In fact, the developers of Mino admitted to using Tetris as inspiration. After the sellers of Tetris saw Mino on the iTunes app store, they sent Apple a takedown notice under the Digital Millenium Copyright Act. They subsequently sued Mino’s publisher for copyright and trade dress infringement.
In the case, the court noted that game developers are free to use others’ ideas, but not the expression of those ideas. As the court noted, idea/expression dichotomy is “simple to state . . . but difficult to apply.” Different courts have developed a variety tests for determining whether copyrightable expression has been infringed. With that in mind, this court described several general rules that apply to the gaming context:
- “The game mechanics and [ideas for] rules are not entitled to [copyright] protection, but courts have found expressive elements copyrightable, including game labels, design of game boards, playing cards and graphical works.”
- Although one “cannot protect some functional aspect of a work by copyright as one would with a patent . . . this principle does not mean, and cannot mean, that any and all expression related to a game rule or game function is unprotectible.”
Applying these general concepts to Tetris, the court found that Tetris is a puzzle game where blocks of different geometric shapes fall from the top of the game board to the bottom where the pieces accumulate. Once a piece reaches the bottom of the board, a new piece appears. While a piece is falling, the user may rotate it so that it fits within pieces at the bottom of the board. The object of the game is to erase horizontal lines by filling them, which opens more of the board for play. If the pieces reach the top of the board, the game ends. According to the court, these rules are “the general, abstract ideas underlying Tetris and cannot be protected by copyright.”
However, the court found that Mino incorporated more than just Tetris’ underlying rules. The court noted that “the style of the pieces is nearly indistinguishable, both in their look and in the manner they move, rotate, fall, and behave. Similar bright colors are used in each program, the pieces are composed of individually delineated bricks, each brick is given an interior border to suggest texture, and shading and gradation of color are used in substantially similar ways.”
The court explained that the look and shape of the pieces were not necessarily functional, as a creative developer could create a similar game with different-looking game pieces. Other similarities included the dimensions of the game board, the use of “ghost” pieces, the manner in which upcoming and locked pieces are displayed, and the appearance of the game board when a game is over. Taken together, the court affirmed decisions of summary judgment for copyright and trade dress infringement in favor of Tetris.
The outcome of this case does not mean that similar games will always infringe. The court noted that the doctrines of merger and scènes à faire may apply in other situations. The doctrine of merger means that the idea and expression have become inseparable. The doctrine of scènes à faire means that certain expressions are so associated with the idea that as a practical matter they cannot be separated from the idea. Under these doctrines, several elements that would otherwise be expression may be used without resulting in infringement.
Indeed, courts have found no infringement in prior cases where games used similar elements such as the general plot (see Sony Computer Entertainment America, Inc. v. Jaffe, involving the “god of War” game) or overall themes (such as that of “Asteroids,” a space-themed game in which a player fights his or her way through space rocks and enemy spaceships, see Atari, Inc. v. Amusement World, Inc., (D. Md. 1981)).