Idea vs expression

Copyright
protects a work, i.e. any manifestation of creative activity of an
individual nature, fixed in any form, regardless of value, intended use,
or manner of expression. Protection extends only to the form of
expression (e.g. in the case of a computer program, the source code and
object code are forms of expression, the Court of Justice held in
C-393/09, Bezpečnostní softwarová asociace – Svaz softwarové ochrany).

Inventions,
ideas, procedures, operating methods and rules, and mathematical
concepts are not subject to copyright protection (Art. 1(2)¹
of the Polish Act on Copyright and Related Rights). Thus the rules of
the game of noughts and crosses (tic-tac-toe) are not subject to
copyright protection, meaning that they can be used by various persons
and take various forms of expression. (An analysis of whether the
examples below constitute a “work” for purposes or copyright or an
unprotected product is beyond the scope of this article.)

Thus
the rules of the game as such are not subject to copyright, as
copyright protects only a creative, individual manner of expressing an
idea. If the idea for a game takes on a creative and individual form of
expression, e.g. as a scenario, graphics, or computer program,
protection of such products on the basis of copyright may be considered.

Someone copied my idea! Really?

Popular
goods, including video games, often fall victim to clones and copycats,
which appear as soon as an item becomes a market hit. In many
instances, disputes arise over the distinction between an unprotected
idea and a protected manner of expression. That was the case for example
in the dispute between Atari (with its Asteroids games) and Amusement World (Meteors).

The
rules of the two games were identical: the player flies a spaceship,
seeking to avoid collisions with asteroids (or meteors) and enemy
spacecraft. The judge ruling in the case found there were certain
similarities between the games (e.g. in both games there are rocks of
three different sizes, and a collision with a rock disables the player’s
spaceship, and in both games the player’s craft fires bullets). But
there were also differences; for example, the meteors were coloured and
the asteroids were black and white, the player’s craft in Meteors moved and fired faster, and so on. The court concluded that Meteors did not violate the copyright to Asteroids. In the judge’s view, Amusement World exploited an unprotected idea and gave that idea a different form of expression than in Asteroids.
As the judge held, the defendant was entitled to use the idea for the
game so long as it gave the idea a different expression, i.e. used
different symbols, moves and sounds than the plaintiff (Atari, Inc. v. Amusement World, Inc., US District Court for Maryland, 1981).

Another
interesting example was the litigation between Tetris Holding and Xio
Interactive, in which the key question was whether Xio infringed the
copyright to Tetris or merely exploited an unprotected idea.
Tetris argued that elements of the game protected by copyright (e.g. the
appearance, colour scheme, and arrangement of playing pieces comprised
of four squares, the appearance of the game playfield, the way the
pieces move and rotate on the playfield) were adopted by Xio in its game
Mino. Xio claimed it had only copied unprotected functional
elements, including the rules of the game, and thus did not infringe
Tetris’s copyright (Tetris Holding, LLC v. Xio Interactive, Inc., US District Court for New Jersey, 2012).

In
its analysis, the court pointed to the striking similarities between
the games, in the graphics, the style, the design of the playing pieces,
and the colour and motion of the pieces, when creative freedom would
allow for a much different form for the defendant’s game. While
maintaining the rules of the game (rotating the pieces to fit empty
spaces and fill up the lines), the pieces could be given a different
graphic appearance, or different ways of rotating and moving the pieces
could be devised. The same idea could be expressed in many different
ways, but Xio copied the expression by Tetris, and thus the court ruled
in favour of Tetris.

These two cases show that it is not easy to distinguish between an unprotected idea and a protected expression.

Other methods of protecting elements of a video game

It
should be borne in mind that various elements of a video game may be
protected by different intellectual property rights. Elements of
graphics or music might be protected by copyright as works, but could
also be registered as trademarks. The appearance of figures in a video
game may be registered as a design. It cannot be ruled out that certain
solutions in a video game might constitute an invention and obtain
patent protection. But that is a topic for another article.

Dr Monika A. Górska