are the rules of a video game copyrightable?content.sfbar.org/source/basf_pages/pdf/082417...

Are the Rules of a Video Game Copyrightable?

Video Game Law: A Primer! Bar Association of San Francisco

August 23, 2017

TODD SMITHLINE // Managing Principal, Smithline PC

President, Smithline Training LLC

Lecturer, U.C. Berkeley School of Law

Smithline – BASF 2017 2

“Intellectual property rights aren't free: They're imposed

at the expense of future creators and of the public at

large.”

Alex Kozinski, White v. Samsung (Re-Hearing Denial Dissent)

9th Circuit Court of Appeals, 1993

Does copyright protect the rules of a game?

DaVinci Editrice v. Ziko Games, 183 F. Supp. 3d 820

(S.D. Tex. 2016)



DaVinci Editrice v. Ziko Games (S.D. Tex. 2016)

Tabletop game Legends of the Three Kingdoms accused of infringing Bang!

Smithline – BASF Summit 2017 5


DaVinci asks, what if you copy all of a

game’s rules but none of its expression?

First, a little context.

Historically, game rules were not protected by

copyright.



HISTORICAL APPROACH


HISTORICAL APPROACH

“In the conventional laws or rules of a game, as distinguished

from the forms or modes of expression in which they may be

stated, there can be no literary property susceptible of copyright.

Defendant has not infringed, because he has not copied the literary

composition of the plaintiff's publication, but, in language quite

distinctly his own, has restated the same set of conventional

precepts.”

–Whist Club v. Foster, 42 F.2d 782 (S.D.N.Y. 1929)

Smithline – BASF 2017

9

COPYRIGHT OFFICE CIRCULAR

“Copyright does not protect the idea for a game, its name or

title, or the method or methods for playing it. . . . Once a

game has been made public, nothing in the copyright law

prevents others from developing another game based on

similar principles.”

Copyright Office Circular, FL-108, Reviewed December 2011

COPYRIGHT OFFICE


10

Copyright subsists in “original works of authorship fixed in

any tangible medium of expression” but excludes “any idea,

procedures, process, system, method of operation,

concept, principle, or discovery . . . “

–17 U.S.C. 102 (a)(b).

So, copyright protects the expression of ideas, but not the

ideas themselves nor functional processes or systems.

CODE

COPYRIGHT CODE

Like the rules of a game.

But, courts in two recent video game cases

have extended protection to game

mechanics that look a lot like “rules.”


11


Tetris Holding v. XIO Interactive (D.C. N.J. 2012)

Tetris Mino

Tetris Holding v. XIO Interactive, 863 F.Supp.2d 394 (D.C. N.J. 2012)

(Summary judgment)

Tetris claims infringement by Mino using broad, functional language


Tetris Holding v. XIO Interactive (D.C. N.J. 2012)

“None of these elements are part of the idea

(or the rules or functionality) of Tetris, but rather

are a means of expressing those ideas”

• “design and movement of playing pieces”

including “bright colors, the individually delineated

squares within the pieces and the downward

lateral, and rotating movement”

• dimensions of the playing field

• display of “garbage lines”

• the appearance of “ghost” or shadow pieces

• display of the next piece to fall

• change in color of the pieces when they lock with

the accumulated pieces

• appearance of squares automatically filling in the

game board when the game is over

Broad Infringement Ruling Covering Game Mechanics


Spry Fox v. LOLApps (W.D. Wash. 2012)

Spry Fox, LLC v. LOLApps, Inc., 2012 U.S. Dist. LEXIS 153863 (W.D. Wash. 2012)

(Motion to Dismiss)

Triple Town Yeti Town

Spry Fox claims infringement of its match 3 game by Yeti Town



What infringes?

The “object hierarchy”

The “field of play”

Survives Motion to Dismiss: Infringement claims “plausibly satisfy both extrinsic and intrinsic test”



“Object hierarchy is similar”


Grass

Bush

Tree

Hut

Sapling

Tree

Tent

Cabin




MEADOW BEARS PATCH

SNOWFIELD

YETI

PLAIN

“not so different from”

“both wild creatures”

“plausibly similar to”

“[T]he depiction of the field of play comprise a

setting and theme that is similar to Triple

Town’s.”



Let’s get back to the DaVinci case



Copyright Infringement? Virtually identical rules (Character life points, Roles, win conditions)

Complete different names, art, setting and other expression (Wild West v. 3rd

Century China)



Rules of Bang!

Each player has a Character (Calamity Janet) with life points and special attribute

Each player has a Role (Sheriff, Deputy, Outlaw, Renegade) with specific win condition

• Sheriff wins if all Outlaws and Renegades die

Cards for weapons, missing shots, healing, extending range of your gun.

Weapons strength designated in spaces between players.

Character Cards Role Cards



Court quotes extensively from Tetris and Spry Fox

“The seven characters from [Legends] have capabilities and life points

that are identical or substantially similar to those of the corresponding

seven characters in Bang!”

“Player’s roles” and “interplay of the characters” are protectable

expression

DaVinci Editrice. v. Ziko Games, 2014 U.S. Dist. LEXIS 110139 (S.D. Tex.

2014)

Infringement Claims Survive Motion to Dismiss:



But, court reverses itself on summary judgment:

GAME RULES ARE NOT PROTECTABLE EXPRESSION

“Unlike a book or movie plot, the rules and procedures, including the

winning conditions, that make up a card-game system of play do not

themselves produce the artistic or literary content that is the hallmark of

protectable expression. See Boyden, 18 Geo. Mason L. Rev. at 466.”

Unlike Legend of Zelda, Bang! falls into a category of games which “have plot

progressions and characters who interact in ways that fall short of the

expressive character interactions and plot progressions that are

protected by copyright law.”

“The effect of a character's special abilities and life points on a player's experience is

not helpful [to Plaintiff’s argument] because copyright does not protect game rules,

procedures, or winning conditions that create the environment for the expressive

elements of the game.”


ARE THE RULES OF A GAME COPYRIGHTABLE?

TETRIS V. MINO

INFRINGEMENT

% C

OP

IED

50%

100%

Rules Expression

TRIPLE TOWN

v. YETI TOWN BANG! v. LOTK

Only if you consider

capabilities and roles

to be expression

INFRINGEMENT NOT-INFRINGEMENT

Rules Expression Rules Expression

Thanks! Any questions?

[email protected]

Mickey Mouse Oswald The Lucky Rabbit

Rob McHenry, AGC

Patents!

25

Video Game Development to Distribution

Overview & Legal Considerations

San Francisco Bar Association

August 24, 2017

Hiro Tachibana

VP & General Counsel Capcom U.S.A., Inc.

MARVEL V. CAPCOM INFINITE

Selected Topics From Video Game Development

Game Definition

Game Design Document – focused on content Story lines, plots, characters, gameplay, music, etc.

Capcom v. Data East (1994): Gameplay Not Copyrightable

Comparison of Fighter's History & Street Fighter

Game Definition

Technical Design Document – focused on software technology

Platform OS, Software Development Tools, etc. (e.g., Facial Animation and Lip Synchronization Software Tool)

McRo v. Capcom, Bandai Namco, et al. Federal Circuit Reversed and Remanded Invalidity Ruling under the Alice case

A Recording of Federal Circuit Oral Arguments http://www.cafc.uscourts.gov/node/19824

Lip Synchronization Tool

http://www.cafc.uscourts.gov/node/19824

http://www.cafc.uscourts.gov/node/19824

Internal Developer v. External Developer

Video Game Development Agreement Work-Made-For Doctrine under Copyright Act

Right to Terminate Copyright Assignment

Marvel v. Estate of Jack Kirby settled in 2014

San Lee (employee) and Jack Kirby (contractor), the legendary creators of Marvel superheroes

Platform and Other Third Party Licenses Required for Game

Development

Platform SDK and Distribution License Agreement: PS4, Xbox One, Steam, Nintendo Switch, iOS, & Android

Software Development Tools: Unreal Engine & Unity

Third Party Content Major Elements of Content License Agreement

What property is licensed?

What is the scope of license grant and restrictions

Licensor’s approval rights

Licensor’s IP ownership

License Fees and Royalties

Content Legal Review

Avoid Inadvertent IP Misuse Dead Rising 2: Zomboni → Zombie Tank

ZAMBONI and the configuration of the Zamboni ice resurfacing machine are registered trademarks of Frank J. Zamboni & Co., Inc

Zomboni Zamboni

ESRB Rating (Entertainment Software Rating Board)

A Non-Profit, Self-Regulatory Rating Body Established by ESA and Praised by FTC

Age Rating and Content Descriptor

Age Rating

Final Gate Keeper for Commercial Distribution

Submission to and Approval by Platform Provider

Video Game Distribution

Follows Evolution of Software

Distribution Model

DVD Packaged

Traditional Retail Channels: GameStop, Walmart, Target, Best Buy, etc.

Digital Download Platform Digital Storefronts: Xbox Live, PlayStation Store, Steam, Nintendo Store

Platform Terms of Service

EULA

New Digital Distribution Models

Online Retail Digital Channels Amazon, GameStop

Subscription Model Xbox Game Pass

Unique Pricing Model Humble Bundle

Set Your Own Purchase Price Charity Donation

Cloud Gaming PlayStation Now Nvidia Grid

Game Video Streaming Twitch

are the rules of a video game copyrightable?content.sfbar.org/source/basf_pages/pdf/082417...

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