Well, it’s official.  On January 31, 2013, the United States District Court of New Jersey issued a consent order and permanent injunction against XIO Interactive for its blatant copying of Tetris, one of the world’s most beloved video games.  The original decision, issued on May 20, 2012, marked the beginning of a trend that has continued over the last year; courts are protecting copyright holders against those companies that choose to rely too heavily upon the works of their predecessors.

The case, Tetris Holdings v. Xio Interactive, examined the relationship between Tetris and Mino, a strikingly similar game created by Xio.  The central issue in the case was exploring the boundaries of the Idea-Expression Dichotomy.  Under this distinction, the idea underlying the game is not protected, however, the specific expression of that idea is granted protection.   In general, anything that is necessary to the function of the game, such as the rules and functionality of the gameplay, is not copyrightable material, while expressive elements that make the game unique are afforded protection.

Xio argued that the elements that they took from Tetris, which were essentially ALL of them, were protected under the doctrines of merger and scènes à faire.  The merger doctrine states that sometimes the idea and the expression of that idea become so closely linked that they become one, and are therefore not copyrightable.  In this case, Xio argued that in order to make a Tetris-like game, you would have to use the same blocks, colors and board in order to accomplish that goal.  The court did not agree, stating “The game mechanics and the rules are not entitled to protection, but courts have found expressive elements copyrightable, including game labels, design of game boards, playing cards and graphical works.”

Xio’s second argument, based on the scènes à faire doctrine, claimed that certain generic elements of genres are not copyrightable and are therefore in the public domain.  Much in the way that both Star Wars and Star Trek are stories that are set in space, and therefore include aliens, warships and interplanetary disputes, Xio argued that a falling block game must include falling blocks.  The court did not agree, noting other games, such as Dr. Mario, were successful in building upon the basic format of a Tetris-inspired game, while making enough changes to the “look and feel” of the gameplay to protect it from copyright infringement.

Based on the court’s opinion, which focused a great deal on the “look and feel” of the games, one could infer that if Xio had changed the expression of the game, meaning the graphical elements and certain features of the gameplay, they would not have been found liable of infringement.  However, more recent cases, such as Spry Fox, LLC. v. LOLAPPS, indicate that such cosmetic changes may not be enough to avoid copyright infringement.  In the Spry Fox case, the court determined in an initial ruling that the elements in Yeti Town, the allegedly infringing game, were indistinguishable from those used in Triple Town, even though the graphical representations of the gameplay were altered (also known as being re-skinned).  Though this initial ruling expands the scope of what could be considered copyright infringement, it is important to keep in mind that the Spry Fox case settled before a final decision could be rendered so it will have limited persuasiveness in future infringement cases  (See our post on the settlement here).

Existing case law does not fully articulate the fine lines between similarity and infringement.  Indeed, such a bright-line distinction may never be possible.  As Judge Hand wrote in Peter Pan Fabrics v. Martin Wiener Corp., “Obviously, no principle can be stated as to when an imitator has gone beyond copying the ‘idea,’ and has borrowed its ‘expression.’ Decisions must therefore inevitably be ad hoc.”  However, settlements such as the one in Spry Fox indicate the strength of infringement arguments being levied against game companies and the likelihood of a court finding infringement.   The result in Tetris v. Xio was predictable enough, showing that exact copying will not be tolerated by the courts.  However, the Spry-Fox case has given many game designers something to think about, indicating that developers may have to reach further than once thought in order to avoid infringing on the intellectual property rights of their predecessors.