are the rules of a video game copyrightable?content.sfbar.org/source/basf_pages/pdf/082417...
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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
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“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)
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DaVinci Editrice v. Ziko Games (S.D. Tex. 2016)
Tabletop game Legends of the Three Kingdoms accused of infringing Bang!
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DaVinci Editrice v. Ziko Games (S.D. Tex. 2016)
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.
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HISTORICAL APPROACH
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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)
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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
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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.”
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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
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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
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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
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Spry Fox v. LOLApps (W.D. Wash. 2012)
What infringes?
The “object hierarchy”
The “field of play”
Survives Motion to Dismiss: Infringement claims “plausibly satisfy both extrinsic and intrinsic test”
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Spry Fox v. LOLApps (W.D. Wash. 2012)
“Object hierarchy is similar”
Triple Town Yeti Town
Grass
Bush
Tree
Hut
Sapling
Tree
Tent
Cabin
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Spry Fox v. LOLApps (W.D. Wash. 2012)
Triple Town Yeti Town
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.”
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DaVinci Editrice v. Ziko Games (S.D. Tex. 2016)
Let’s get back to the DaVinci case
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DaVinci Editrice v. Ziko Games (S.D. Tex. 2016)
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)
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DaVinci Editrice v. Ziko Games (S.D. Tex. 2016)
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
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DaVinci Editrice v. Ziko Games (S.D. Tex. 2016)
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:
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DaVinci Editrice v. Ziko Games (S.D. Tex. 2016)
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.”
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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
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
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