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Video Games: How To Legally "Steal" Other People’s Ideas Part I

intellectual property lawyer new york

Haha! Got you on that one, didn’t I? I bet you wanted to read the next few lines. Well, I wasn’t entirely exaggerating, but neither was I necessarily telling the full story on that one. This is a new series I am starting on the broad subject of “Intellectual Property” as applied to video games. We will cover copyright, trademarks and some aspects of patent law, as well as other boring stuff. However, a lot of this information is applicable to other software as well, and the broader concepts, of course, apply to other creative works such as art or books. So, I am hoping, racy title or no, you stick around for a bit and maybe learn a few new things.

Disclaimer: The following information does NOT constitute legal advice and is only for general educational purposes. Each situation is different and specific legal issues usually require additional research and investigation, so do not rely on this article to address a particular legal issue; use this as a starting point to gain a general understanding. This article, although educational in purpose and substance, nevertheless, might be deemed attorney advertising, and prior results do not guarantee future success.

Supplemental Disclaimer: I am not a Patent Attorney. Patent Attorneys have their own licensing requirements and usually have a math or science background (alas, going to the City’s arguably best math and science high school doesn’t count). That said, there are a lot of general concepts we can discuss without straying too far afield I think, so read on!

1. Why Video Games?

So, why do this blog entry on video games?

Well, the easiest answer is that if you have been reading my blog for awhile, you know that gaming is one of my favorite hobbies. If you read my previous article[1] on the industry, or even just look at the picture above,[2] you know I have a problem (or passion - depends on your POV[3] I guess!). All kidding aside though, as I previously pointed out, video games are not just for kids anymore. Fifty-Nine percent of all Americans play video games, half of them are women, 23% of them are senior citizens.[4] Worldwide, in 2015, video games generated $100B.[5] It’s big business and everyone’s doing it.

However, as amazing as they are to play, if you design them, develop them or publish them, you have unique concerns and opportunities when it comes to poaching other people’s intellectual property and protecting your own. So, let’s talk a bit about some of the issues that come up.

2. A Quick Recap / Primer on Intellectual Property (“IP”)

First, we probably should discuss a little review here. I also encourage you to read my articles on Copyrights[6] and Trademarks.[7] In summary, the legal dictionary definition of a copyright is a form of legal protection provided by the laws of the United States to the authors of “original” “Works” of “authorship” “fixed” in any “tangible medium” of “expression,” including literary, dramatic, musical, artistic, and certain other intellectual Works.[8]

By contrast a trademark (sometimes called a “service mark”) is usually a word, phrase, symbol or design or combination thereof that identifies a source of goods (or services), and differentiates that source from other sources.[9] Finally, a patent is a grant of a property right related to a novel, non-obvious invention, not naturally occurring in nature.[10] The running example you see everywhere is if I invent a new mechanical product, that gets a patent; the logo and brand name on the product is the trademark; part of the advertising campaign (or possibly even the instruction manual) could be copyrighted.

Although my other articles go more deeply into the basics, the general gist is that you can’t use other people’s stuff, but there is a laundry list of exemptions. For instance, for copyrights there is something called “fair use” where for instance, for reasons of commentary or even unflattering parody, you possibly could quote a passage I have written. In trademark, there is a similar concept called “nominative fair use,” which - let’s say you are a retailer on Ebay - let’s you advertise TiffanyTM products by name, but only with certain limitations. Both of these types of “fair use” are fraught with peril, but the point is, stuff you invent, coin, or express is protectable under many but not all circumstances.

3. Can You Copyright A Video Game?

Well, when you think about it, there are two really at least two components of a video game: what you see as the end user (the fun stuff on the screen) and the hyper-technical “Matrix” like “1s” and “0s” underlying, which can be represented as electronic code, or even a printout that someone inputs into the computer. So, how does that work in terms of protecting your rights? Let’s deal with one at a time.

3-A. The Code or 10 Easy Steps

to Sympathizing with Your Sleepless Software Soulmate

What is computer code? Well, the work of computer programmers is probably the most unappreciated of all arts. The poor software engineer is often portrayed as overworked and tasked with impossible objectives and deadlines, and this portrayal has some basis in history.[11] However, for those of you that know little of what goes on in the worlds of their white boards and computer screens, I rely on the learned prose of 2nd Circuit Court Judge Walker to describe some of the behind the scenes and technical aspects of code and coding.

This description is derived from a legal decision written by lawyers, not technologists, and the decision was written in 1992, which puts this roughly on par with the Sega Genesis console gaming system, before Playstation and way before Xbox. It is written for non-technical readers, so if this too simplistic and out of date for you then please bear with me; many decisions cite to and rely on these old ones, so sometimes, it is worthwhile to review the classics. And, here … we … go.[12] Walker writes:[13]

i. The programmer starts with a general idea and works their way backward; for instance they start with the idea of developing an accounting program.

ii. The programmer then breaks down or "decomposes" the program's ultimate function into "simpler constituent problems or subtasks, called “modules” or “subroutines,” for example, updating a list of outstanding accounts receivable.

iii. Depending upon the complexity of its task, a subroutine may be broken down further into sub-subroutines.

iv. These subroutines / modules are then arranged into organizational maps or flow charts, that chart the interactions between modules that achieve the program's end goal.

v. In order to accomplish these intra-program interactions, a programmer must carefully design each module's parameter list, or the information sent to and received from a subroutine; so for example for that accounts receivable subroutine, some parameters might include the designated time frame and particular customer identifying number and the information's actual content (e.g. 8/91-7/92; customer No. 3).

vi. With respect to form, interacting modules must share similar parameter lists so that they are capable of exchanging information.

vii. The functions of the modules in a program together with each module's relationships to other modules constitute the “structure” of the program. Also, structure may include macros (automated sequences of instructions that often interact with parameters).

viii. All these routines, subroutines, modules, macros and their relationships to one another must be embodied into a program structure and “coded” into the machine; coding is a two-step process, where the programmer must transpose the program's structural blue-print into a “source code” (for instance like COBAL, FORTRAN, BASIC, or if you prefer something more recent, C++, Java, PERL). This step has been described as "comparable to the novelist fleshing out the broad outline of his plot by crafting from words and sentences the paragraphs that convey the ideas."

ix. In fashioning the structure, a programmer normally will attempt to maximize the program's speed, efficiency, as well as simplicity for user operation, while taking into consideration certain externalities such as the memory constraints of the computer upon which the program will be run. This stage of program design often requires the most time and investment.

x. Once the source code has been completed, the second step is to translate or "compile" it into “Object Code.” Object Code is the binary language comprised of zeros and ones through which the computer directly receives its instructions. Put another way: Source code is comprehensible to a person familiar with programming language but requires conversion into Object Code before it is comprehensible to a computer.

We now all know what goes into making these beautiful games (or your office software) work, but this still doesn’t answer the question of whether the code itself is copyrightable. Well, the first question is which code? The Source Code or the Object Code? Even as far back as 1992, the court said it was “now well settled” that the literal elements of computer programs, i.e., their source and object codes, are the subject of copyright protection.[14] Some courts have applied this to source code, others object code, and some both.[15]

Today, the United States Copyright Office makes it clear that you can copyright either or both, *however*, if in Object Code, it will be subject to the “rule of doubt,” meaning weakened protection.[16] Also, note that the copyright law does not protect the functional aspects of a computer program, such as the program’s algorithms, formatting, functions, logic, or system design.[17] Also, each version of a computer program containing new, copyrightable authorship is considered a separate work, so you must submit a separate application, filing fee, and deposit for each version you want to register - however, if it’s unpublished, you can register multiple versions of the same program by submitting them together as an “unpublished collection.”[18]

3-B. The Screen

As I said, copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.[19] The Lanham Act (i.e. copyright law) includes “movies” and “audio visual” works as those that can be protected.[20] However, are games considered “fixed” in a “tangible medium” or even “original” as defined by law? We now know the code is copyrightable, but what about all the cool stuff on the screen?

The Second Circuit,[21] the federal court system that deals with Connecticut, New York and Vermont, considered these questions when examining the old style, coin operated game called Scramble[22] (I used to love this game). In Scramble, the player controls the space ship, moves it up and down, can decide to drop bombs or shoot some kind of laser; further, missiles and stationary objects can be destroyed, or destroy the player. All this means, the image on the screen constantly changes. The coin operated video game certainly was a “machine” or “other device” and the game display itself could be viewed as a movie or audio visual work.

The problem was that the image was rarely, if ever, exactly the same, since the player’s action constantly changed the position of the ship on the screen and altered the landscape - Player A might have destroyed the first missile but not the second missile; Player B might have been destroyed by the second missile; Player C might have flown at a different altitude than either Player A or B, and so on. The court ruled that even thought the player’s action affected the *sequence* of the sights and sounds on the screen, the actual sights and sounds were generally constant, including appearance and color of the ship, the opponents, the explosions, and this repetitive sequence of a substantial portion of the sights and sounds of the game qualified for copyright protection as an audiovisual work.[23]

Further, the court found the work “original” despite the changing nature of the picture, as the visual and aural features of the audiovisual display were plainly original variations sufficient to render the display copyrightable even though the underlying written program has an independent existence and is itself eligible for copyright. Nor was copyright defeated because the audiovisual work and the computer program were both embodied in the same components of the game, since the same thing occurs when an audio tape embodies both a musical composition and a sound recording.

The court reasoned that it is the sequence of the creative process that is original: the program was written, then imprinted into the memory devices so that, in operation with the components of the game, the sights and sounds could be seen and heard - and it is the resulting display satisfies the requirement of an original work. Typically, a submission of the code, also should cover the audio visual display, but you have to be careful how you fill out the information you submit or you can accidentally exclude one or the other.[24]

3-C Conclusion

So, the bottom line is, yes, you can copyright a video game. In the next article we will explore more aspects of this protection, what it covers, and how to get around it.


[2] Yup, sadly, that’s a reflection of my personal stash. Of course they don’t really box games anymore (you download them off of Steam or GOG or something) but it is cheerfully nostalgic to me.

[9] United States Patent Trademark Office, Basic Facts About Trademarks, p.1.

[10] Omitted.

[19] Lanham Act, 17 USC 102(a).

[20] Lanham Act, 17 USC 102(a)(6).

[24] US Copyright Compendium §1509.1(c)(6).


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