Video Game Copyright Infringement: Idea/Expression dichotomy in videogames
by Tim Bukher
The Federal District Court for the District of New Jersey has issued a very important decision for video game developers that analyzes the idea/expression dichotomy with respect to copyright infringement in video games. Tetris Holding, LLC v. Xio Interactive, Inc., 09-cv-6115 (D. N.J., May 30, 2012).
In Xio, the creator and copyright holder of the Tetris video game brought a copyright infringement lawsuit against Xio Interactive, the developer of Mino, a 2009 iPhone puzzle game that functions on near identical rules and looks very similar to Tetris. (E.g., the puzzle pieces are made up of 4 box pieces in various arrangements which fall from the top of the screen and which players arrange into lines at the bottom which translate into points a la Tetris.)
According to the decision, Tetris claimed infringement on the following points:
1. Seven Tetrimino playing pieces made up of four equally-sized square joined at their sides;
2. The visual delineation of individual blocks that comprise each Tetrimino piece and the display of their borders;
3. The bright, distinct colors used for each of the Tetrimino pieces;
4. A tall, rectangular playfield (or matrix), 10 blocks wide and 20 blocks tall;
5. The appearance of Tetriminos moving from the top of the playfield to its bottom;
6. The way the Tetrimino pieces appear to move and rotate in the playfield;
7. The small display near the playfield that shows the next playing piece to appear in the playfield;
8. The particular starting orientation of the Tetriminos, both at the top of the screen and as shown in the “next piece” display;
9. The display of a “shadow” piece beneath the Tetriminos as they fall;
10. The color change when the Tetriminos enter lock-down mode;
11. When a horizontal line fills across the playfield with blocks, the line disappears, and the remaining pieces appear to consolidate downward;
12. The appearance of individual blocks automatically filling in the playfield from the bottom to the top when the game is over;
13. The display of “garbage lines” with at least one missing block in random order; and
14. The screen layout in multiplayer versions with the player’s matrix appearing most prominently on the screen and the opponents’ matrixes appearing smaller than the player’s matrix and to the side of the player’s matrix.
The court proceeded to analyze the idea/expression dichotomy with respect to the games, noting the following:
Xio is correct that one cannot protect some functional aspect of a work by copyright as one would with a patent. But this principle does not mean, and cannot mean, that any and all expression related to a game rule or game function is unprotectible. Such an exception to copyright would likely swallow any protection one could possibly have; almost all expressive elements of a game are related in some way to the rules and functions of game play. Tetris Holding is as entitled to copyright protection for the way in which it chooses to express game rules or game play as one would be to the way in which one chooses to express an idea …
So what about Tetris does copyright law protect, and what about it does it not protect? According to the court, here is what copyright law does not protect:
Tetris is a puzzle game where a user manipulates pieces composed of square blocks, each made into a different geometric shape, that fall from the top of the game board to the bottom where the pieces accumulate. The user is given a new piece after the current one reaches the bottom of the available game space. While a piece is falling, the user rotates it in order to fit it in with the accumulated pieces. The object of the puzzle is to fill all spaces along a horizontal line. If that is accomplished, the line is erased, points are earned, and more of the game board is available for play. But if the pieces accumulate and reach the top of the screen, then the game is over. These then are the general, abstract ideas underlying Tetris and cannot be protected by copyright nor can expressive elements that are inseparable from them.
Ultimately, the court finds infringement not because the rules of the games are identical (this isn’t protected by copyright law), but rather because the “look and feel” of the games is identical (because expression is protected by copyright law):
The first is Tetris and the second is Mino. Without being told which is which, a common user could not decipher between the two games. Any differences between the two are slight and insignificant. If one has to squint to find distinctions only at a granular level, then the works are likely to be substantially similar. Reviewing the videos of the game play bolsters this conclusion as it is apparent that the overall look and feel of the two games is identical. There is such similarity between the visual expression of Tetris and Mino that it is akin to literal copying.
Notably, the court was unconvinced that there was only one way to express the rules of Tetris:
Nor does merger apply because there are many novel ways Xio could have chosen to express the rules of Tetris. Xio’s own expert admitted there are “almost unlimited number” of ways to design the pieces and the board and the game would still “function perfectly well.”
Thus, with respect to the idea/expression dichotomy, Xio could not rely on the doctrine of merger to avoid infringement because there were multiple ways in which the Tetris rules could have been expressed visually, yet Xio chose to express them in an identical manner as Tetris. Ultimately, the core of this decision is summarized in one line from the holding: “It is the wholesale copying of the Tetris look that the Court finds troubling more than the individual similarities each considered in isolation.”
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