Xio Interactive created Mino, the Tetrisalike game at issue in the case, in 2009. Two companies in the Tetris group sued for infringement of copyright and trade dress (the latter, very simply, being rights to control the appearance/visual design of a product – not considered further in this post).
Xio admitted that Mino was based on Tetris, but claimed that it had taken careful steps to ensure no IP rights of the Tetris group were infringed by Mino. Apparently, even before that Xio had tried to get a licence from the Tetris group – but had been refused. So they released Mino anyway.
Tetris then sent takedown notices to Apple. In the usual way, Apple told Xio about this, which sent counter-notices to Apple. In the usual way, Apple threw its hands in the air and asked the parties to sort this out one way or the other. Tetris group then sued Xio Interactive.
Without getting into detail, Tetris group advanced the classic arguments raised regarding cloning of a game, i.e. that game clones copy:
– the visual appearance or ‘look and feel’ of the original game
– sometimes, actual visual or audio aspects of the original game
– the gameplay mechanics (e.g. what happens when a single line of blocks is completed)
(Sometimes there can be a trade mark argument too, but not here since Mino has no similarity name or brand wise to Tetris).
This is a highly condensed summary of what the judge ruled:
In general terms, copyright protects the expression of an idea, not the idea itself. No own can own the idea (though it can be hard sometimes to distinguish between the idea and the expression of that idea in practice).
Even with the expression of an idea (which can be protected by copyright), a purely functional aspect of the work isn’t protected by copyright – there needs to have been some sort of creative skill and labour.
Does this mean that the application of a game rule (e.g. you can rotate tetraminoes until they hit the bottom) isn’t protected by copyright, just because they’re a functional application of a game rule? No. The expression of game rules in a game can be protected by copyright. The judge said:
“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, Tetris group can’t own the general ideas underlying Tetris, but they can protect their specific expression of those ideas as set out in the Tetris game itself. If someone actually copies the specific expression of those ideas (rather than just generating something very similar but independent to it based solely on the general underlying ideas), then there could be a finding of copyright infringement. Or, in other words, basically: if someone has substantially copied how Tetris actually looks and plays = copyright infringement potentially.
The judge ruled that Mino does copy Tetris sufficiently to find a copyright infringement claim. The judge said in particular: “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”
Conclusion: copyright infringement yes, Xio Interactive naughty, take down Mino, Tetris group happy.
Why this is an important case in fighting clones:
For the first time on record as far as I’m aware, a judge has been persuaded to adopt a high-level approach to a cloning case in relaetion to a modern game: looking at the overall rules and gameplay of a game, rather than looking at granular specifics, in order to decide whether the game had been copied. Which is absolutely the right thing to do – a consumer wouldn’t be concerned with legal arcanisms like to what extent the source code had been copied. They would just compare the two games together and probably quite quickly decide how similar they were to each other.
If this case is followed elsewhere, it would make anti-cloning arguments much easier in principle. Not always a slam-dunk mind you, because you still need to compare the two games side by side and go through the comparison exercise as well as apply copyright law principles more generally. But still a shedload easier than having to meet the ridiculously hard test under English law at present, which basically requires you to show that actual code or other assets have been copied – which is impossible in practice because the whole point of cloning is that it involves the copying of the audiovisual output, not the code or other inputs. Readers will remember I’ve spoken previously about the leading English/Commonwealth legal authority on this matter, Nova v Mazooma, where one pool arcade game which allegedly had copied another pool arcade game was found not to involved copyright infringement because (essentially) there had to be copying of actual code or other assets – duplicating the visual output wasn’t enough.
I’ve previously written (quite recently actually) about the current status of the law on clones. This case shakes it up a bit (although another recent case, an EU one called WPL v SAS, reinforces the status quo on this side of the Pond), so next month I’ll do a follow-up post about where we NOW stand on cloning.
A quick word about cloning more generally:
Obviously, this is just a post about the law on clones. It’s important to remember though that the legal response, while important for us to know, is only part of the answer when it comes to clones. Some people don’t think clones are a problem (they just feed demand, arguably), others think that clones don’t need legal solutions at all (e.g. perhaps because market forces will take care of it, or because a legal ‘solution’ to clones could prove worse than cloning itself). So this isn’t a post saying “judge rules against clones = hooray!” – it’s a post explaining why, legally at least, cloning just got a bit harder.