Have you, like us, seen nostalgic Gen X-ers playing new versions of old arcade games on their smartphones and wondered whether these “clones” would sooner or later make an appearance on IP Whiteboard? Well, hold on to your spare quarters as a recent decision in the New Jersey Federal District Court may trigger an increase in copyright infringement claims against videogame clones.

In the recent case of Tetris Holding, LLC and The Tetris Company, LCC v Xio Interactive, Inc, the copyright owner of Tetris, the 1980s brick-building game, successfully argued that Xio Interactive had infringed its copyright by producing a Tetris clone called Mino.  While Xio admitted to copying audio-visual and mechanical elements from Tetris, it claimed that it had merely copied the non-copyright-protected ideas and concepts underlying Tetris as opposed to the game’s copyrightable expression of those ideas.

Arguing the case into the idea/expression quagmire has become a staple defence for videogame cloners where the simplicity of the games means that the line between what constitutes idea and what constitutes expression is often blurred. In these proceedings, however, the Court attempted to clarify exactly what elements of a videogame can attract copyright protection.

The decision

Wolfston J held that there is no copyright in game mechanics or rules, since these are mere ideas. However, Tetris Holding LLC was entitled to copyright protection for the way in which it chose to express these game mechanics in the form of the audio-visual features of the game.

Applying this, the Court found that the overall look and feel of the Tetris and Mino games was identical and that the similarities between the audio-visual features of Tetris and Mino were so obvious as to be akin to literal copying. In particular, Xio had copied the shapes and style of the Tetris pieces (including colour, shading and borders), the size of the playing board and the manner in which the Tetris pieces behaved.

The end of videogame clones?

Despite the decision, it may not be game-over for videogame cloners. Given the broad nature of the ideas underlying Tetris, it appears an infringement requires almost wholesale copying of the audio-visual elements.  Indeed, there are games which use the basic Pac-Man idea of a character collecting items and avoiding enemies in a maze but have changed the audio-visual elements of the game to avoid infringement (by using, for example, different characters, colours or mazes).

The situation in Australia

Enforcing copyright against videogame clones may also be difficult in Australia.  In Australia, the test for infringement of cinematographic films (which include the visual images displayed on screen when a videogame is played) is whether a copy of a ‘substantial part’ has been made. This would include, for example, if someone were to film the game and include it in a movie.  However, where it is not possible to show this type of copying, the owners of copyright in Australian videogames would have to rely on possible infringements of other copyright rights in the videogame, such as:

  • copyright in the original artworks that were incorporated into the game (eg the original drawings of the characters or objects in the game);
  • copyright in the accompanying sound recordings and music; or
  • copyright in the game itself as a dramatic work (which includes a scenario and choreography). But, would a scenario about a brick falling be regarded as material expression of an idea? Back to the same problem. By way of illustration, in Australia the Federal Court had held, when considering a poker machine game, that where there is no apparent plot, choreography or characterisation and there is a high degree of randomness, then a game will not likely be regarded as a dramatic work. As such, the more developed and choreographed the scenario, the greater the chance it will be protected by copyright.

So, although Tetris has stepped up against the wholesale copying of its 1980s gaming legacy, there will no doubt continue to be knock-offs aplenty. Of course, if you find yourself anywhere near Brooklyn, there’s always the real thing.