Video Game Technology and IP Law: Now You're Playing with Copyright Law

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Following our previous article on video game patents,[1] we are now examining the role of copyright law in protecting video game works. While some copyright issues are specific to video game technologies, many legal issues relate to the general rules of copyright protection for software. For illustration, several software issues played out recently in a copyright lawsuit filed by SAS Institute Inc. (“SAS”) against World Programming Limited (“WPL”) in the Eastern District of Texas.[2] In the lawsuit, SAS asserted that WPL had copied various non-literal elements of SAS’s system that provides “an integrated range of software products” which enables users to perform a variety of tasks related to data access, data management, data analysis, and data presentation.[3] The alleged infringer, WPL, requested that SAS “identify each copyrighted work by registration number, [and] the portions entitled to copyright protection and infringed.” In response to WPL’s request, SAS merely cited 2,139 different copyright registrations without explanation to which portions of the related copyrights were protected and which portions were not. To determine what parts of the copyrighted works were protectable, Judge Gilstrap held a copyrightability hearing. Citing the Eleventh Circuit’s opinion in Compulife Software v. Newman[4], the Court held that the defendants bore the burden of identifying what portions of the copyrighted works were not protectable and why. After WPL did so, Judge Gilstrap discounted SAS’s assertion that the portions were protected because they were the result of the author’s creativity, and found that SAS failed to establish that the identified items were in fact protected. Thus, Judge Gilstrap granted summary judgement of no copyright infringement for the alleged infringers.[5] 

Video games make for an interesting copyrightable mixture. Video game source code may qualify as a literary work, while the actual video game may be an audiovisual work similar to a theatrical movie. Video games can also include highly expressive elements, such as unique characters, storylines, and graphical settings that often invoke strong copyright protection by courts. On the other hand, video games also include software elements that serve very specific functional purposes that are often used outside the video game industry. Whether a game can play on a Nintendo Switch or PlayStation without crashing may be equally important to a video gamer’s enjoyment than the expressive content, for example. Being aware of how copyright protection applies to different video game elements is very important to understanding the strengths and weakness in an intellectual property portfolio. 

Typically, video game copyright protection is divided between literal elements and non-literal elements. For illustration, U.S. Court of Appeals for the 9^th Circuit examined the copyright protection offered the popular online video game, Blizzard’s World of Warcraft (WoW).[6] In the court’s analysis, the protected literal elements included the WoW source code stored on a game player's hard drive. For individual non-literal elements, the court found the 400,000+ discrete visual and audible components of the game to be also protected, such as a visual image of a monster or the monster’s audible roar. The court also found certain dynamic non-literal elements protectable, such as the “real-time experience of traveling through different worlds, hearing their sounds, viewing their structures, encountering their inhabitants and monsters, and encountering other players.” Despite these protected elements, the appellate court found a software “bot” developer did not infringe any WoW copyrights. However, the non-literal copyrightable elements gave the video game’s developer, Blizzard Entertainment Inc., a valid Digital Millennium Copyright Act ("DMCA") claim against the “bot” developer for circumventing a protective technological measure.

Beyond World of Warcraft, other courts have found a plethora of protectable expression in video game works. In Tetris Holding, LLC v. Xio Interactive, Inc.,[7] a district court found an iPhone game developer liable under both copyright infringement and a trade dress claim for copying elements of the famous Tetris game into their smartphone application. While Tetris’ game rules were ineligible for copyright protection,[8] the “overall look and feel” of Tetris was protectable, such as “the style of the pieces”, the “look and manner” that pieces move, Tetris’ use of bright colors, how game pieces are composed of individually delineated bricks, and shading and gradation of color that “suggest[s] light is being cast onto the pieces.”[9] Additionally, the court found protectable expression in the 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.[10] To summarize, the court believed that “standing alone, these discrete elements might not amount to a finding of infringement” but “wholesale copying of the Tetris look” was more than sufficient to find copyright infringement. 

On the other end of the protectability spectrum, several copyright owners have failed to satisfy this protectable expression threshold.  In DaVinci Editrice SRL v. ZiKo Games, LLC,[11] the court found no infringement of protectable expression when a maker of an ancient-China themed card game copied the game rules of a wild-west themed role-playing card game. Where the “artwork and written instructions are substantially different,” the district court found no protectable expression was copied. The district court’s position was that “[c]opyright does not protect game rules because they fall within the section 102(b) exceptions for an idea, procedure, process, system, [or] method of operation.”[12]

In conclusion, video game works include many elements protected under copyright law, but understanding the degree of protection may be a complicated analysis. Merely noting that various elements are included in a copyright registration may not be sufficient to convince a judge of copyright infringement as was found by the copyright owner in the Eastern District of Texas. Identifying protected video game expression may involve both knowing how many elements were copied by an infringing party as well as the context of the expression within a game’s particular genre. A storyline with Nintendo’s Link from the Legend of Zelda series may have many protectable elements, but that will not give Nintendo an unlimited monopoly on sword-fighting, magic, and heroes with pointed ears.