Originally published by Law360, New York (July 17, 2017)
Copyright claims based on alleged similarities between video games ("clones") are as old as the industry itself. While video games, like other creative works, may receive some level of protection, not all elements of a game are protectable. Abstract ideas, including game mechanics and rules, as well as functional and scenes a faire elements, are not entitled to copyright protection under current United States law. Only expressive elements are protectable. For courts, this distinction can sometimes be only skin deep, and whether or not a clone faces liability frequently turns on whether the second developer takes the time to create a new visual design for a game.
This article briefly reviews the U.S. law behind game cloning and copyright law, and highlights the importance that visual design and aesthetics play in whether allegations of cloning translate into actual liability.
The Idea-Expression Distinction
The scope of copyright protection enjoyed by video games is narrower than many realize. As the Copyright Office has explained in stark terms: "[c]opyright 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." This is the much-discussed "idea-expression dichotomy," and while it is an easy principle to state, it is much harder to consistently apply in practice.
Applying this theory to games, courts have held a wide array of game features are entitled to little or no copyright protection, including:
Instructions, including dialogue boxes, tool tips, game instructions and arrow indicators.
Game rules and mechanics, including all of the "rules and procedures, including the winning procedures" that operate and animate gameplay.
Game board design, such as the use of a six-by-six grid in a "match-three" puzzle game.
Scoring or point systems, which track player performance, as well as the method of using points or coins to reward players and allow the purchase of power-ups.
Courts have also been unwilling to find copyright protection in common game tropes, so-called "scenes a faire" elements, which define certain types of genres. For example, when the owners of the iconic "Dawn of the Dead" film sued Capcom over its game, "Dead Rising," a California federal court concluded that the movie and game setting -- a suburban mall -- and both work's portrayal of characters using improvised weapons to fight zombies were unprotectable, generic elements of a zombie survival horror story. Others examples include basic martial arts moves in fighting games, or the stock fantasy trappings of "sword and sorcery" epic adventure, including wizards, elves and dwarves.
So what game elements can be protected by copyright? Often, courts focus on the most obvious creative aspects of a game -- its visual appearance, and the unique aspects of a game's characters.
The visual design of a game, particularly where the game is abstract or fanciful, is protected. The design of even simple games, like "Tetris," are eligible for protection: "the style, design, shape and movement of ["Tetris"] pieces are expression." Similarly, other courts have held that the unique, progressive matching hierarchy in Triple Town,  and the colorful design of Breakout are creative choices that enjoy copyright protection.
Characters are eligible for protection when...