Cloning Video Games is Copyright Infringement: You Can’t Just Copy Tetris

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Cloning Video Games is Copyright Infringement: You Can’t Just Copy Tetris

On May 30, 2012, a Federal District Court in New Jersey granted summary judgment to Tetris in an infringement case against Xio Interactive, Inc. for their iPhone game “Mino.” In Tetris Holding, LLC v. Xio Interactive, Inc., the judge ruled that Xio infringed upon Tetris’ copyright and trade dress. The decision is an important gain for game developers, who are often offered little protection against infringement by game studios who produce clones of popular games for profit.

Many game developers have trouble protecting their intellectual property rights against companies who create clone games to cash in on successful designs. Clones copy the look, feel, and mechanics of a popular game for a profit, but, until recently, the original developers had trouble proving these clones crossed the line into copyright infringement. Often, developers like Xio successfully argued that they copied only functional elements of the game, such as the underlying rules or theme, and not that game’s particular expression of them. The New Jersey court ruled for Tetris, however, holding that Xio’s clone copied various parts of “Tetris” that may have been acceptable individually, but, taken together, constituted infringement.

While the holding is well argued, the court may also have ruled for Tetris after Xio openly admitted to downloading Tetris’ own iPhone game when seeking to create “Mino.” While they did not copy the actual underlying coding for Tetris’ game, Xio did not deny widespread copying of Tetris’ features and design. Additionally, Xio did not deny spending money to research copyright law and concluding they could imitate “Tetris” if they stuck to the game’s functional elements.

For this conclusion, Xio leaned heavily on the merger and scenes a faire doctrines to conclude that most of Tetris’ content could not be protected. Since only expression is copyrightable, the underlying ideas of a game are not protected. For example, while “Mario” is protected from wholesale copying, creating a game around an Italian plumber who saves a princess might not be copyright infringement. Stemming from this expression/idea theory, the doctrine of merger limits copyright protections when there are few ways of expressing a given idea. Since the expression and idea are so closely related, if the law offered standard copyright protection, the copyright holder would receive a near monopoly on the idea. To avoid these idea monopolies, the merger doctrine reduces copyright protection when an idea and its expression merge. Similarly, Scenes a Faire limits expression that is widely used and commonly associated with a given genre. Relying on these two doctrines, Xio argued that any expression found in “Tetris” is unprotectable since it is so closely related to the game’s underlying rules and ideas.

The judge disagreed, however, and held that Xio’s theory would only preclude protection for expression that is inseparable or integral to an idea. Xio’s articulation of merger and Scenes a Faire is dangerously broad and could have precluded any protection whatsoever for game developers. The court’s adoption of a narrow view ensures that developers will be protected while also preserving merger and Scenes a Faire for difficult cases where an idea and expression are almost inseparable.

Specifically, the judge found Xio copied the individual Tetris pieces, the dimensions of the playing field, the display of garbage lines, the appearance of shadow pieces, the display of the next piece, the color changes when pieces land, and the playing field automatically filling in when a player loses. The court found this expression was not inseparable from the underlying ideas of the game, and while taking a single one of these elements may not have been infringement, Xio’s wholesale replication constituted copyright infringement.

The court also held that Xio infringed on Tetris’ trade dress in creating “Mino.” Trade dress is a legal protection designed to protect consumers from purchasing goods that imitate another product. Trade dress tries to prevent knock-offs and counterfeits from being sold as the genuine product. Xio similarly sought to argue that Tetris’ trade dress was functional and did not deserve protection. The court also rejected this argument and held that many of the design choices in Tetris are not related to function.

While many have expressed concerns that the decision will stifle creativity and encourage copyright holders to pursue frivolous lawsuits, the decision will help protect copyright holders against clone producers like Xio. Given Xio’s unapologetic, wholesale reproduction of “Tetris,” there is a good chance that this decision will not harm genuinely new creative games that simply share elements or inspiration with their predecessors.