Check out the latest from the courts ~

GrogHeads Newsdesk, 01 June 2016

The key distinction here seems to be the difference between the artistic expression of a game, and the operational aspects – the rules – thereof.  From Zachary Strebeck, a game-industry lawyer.

The court looked at the facts presented by the parties, including the undisputed fact that the games’ mechanics were essentially the same. The court pointed out the major statutory limitation to copyright protection, which is that:

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

The court points out that “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.” They note that past game copyright victories were won by parties based on infringement of visual appearance or other protectable elements. Pac-man’s gameplay, they recall, was not considered protectable back in 1982.

GamaSutra also reported on the decision, including some info from Strebeck, and the link to the PDF of the judgment hosted on his site.

United States copyright law has not been favorable to protecting game mechanics up to this point, and a recent summary judgment from a Texas judge in DaVinci Editrice S.R.L. vs. Ziko Games, LLC means this likely will continue be the case going forward.

The judgment was submitted on April 27th, 2016, and discovered by attorney and blogger Zachary Strebeck last night, who posted an analysis of the ruling and what it means for game developers who discover their work has been cloned. (Strebeck previously blogged about this case when DaVinci filed its first lawsuit in 2014).

DaVinci had sued Ziko games over the game Legend of the Three Kingdoms, which both companies acknowledge is mechanically identical to DaVinici’s board game Bang! The art and aesthetics of the two games differ, with Bang! taking on the iconography of the wild west and Legend of the Three Kingdoms borrowing from Chinese history.

The court’s ruling, which Strebeck has hosted on his own site, states that nothing about the mechanics of Bang! can not be considered “expressive,” as they are rooted in widely familiar game concepts like health bars, punches, and kicks, while that the expressive elements of the game (its art and aesthetics) aren’t substantially similar to Legend of the Three Kingdoms.

This isn’t the first ruling on game copyright law, and according to the court mechanics can’t be protected in general based on statuatory limitation. “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”

You can read the decision here (PDF).

It sounds like it’s coming down to a legal distinction between patent and copyright.  Either way, it might make for an interesting case for a media law class to analyze.

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