Tetris. Popular? Perhaps the best video game yet created, with over 200 million copies sold. Mysterious? It was developed by a Russian programmer during the cold war. Scientific? Think tetrominos, not MMOGs. If you aren’t familiar with this game you should (a) reexamine your life, and (b) check it out.
But does copyright law protect it against a knock-off that uses not only the same “ideas” (tetromino shaped tiles falling from the top of the screen, that need to be moved/rotated to fit into the openings below) but the exact screen height/width (in tile units)? Shading and gradation of the pieces? Creative aspects of animation (such as shadowing)? Features, like previewing the next piece up?
Desiree Golden may have thought so at first – she asked Tetris Holding Co. for a license, with no success. So Golden’s company, Xio Interactive, went to Plan B, and created what it concluded would be a similar but non-infringing game. According to the court’s decision, “before releasing its product, Xio researched copyright law, both through its own independent studying and based on advice of counsel.”
However, judges have been known to disagree with lawyers, and in this case New Jersey U.S. District Court Judge Freda Wolsfon disagreed emphatically. In her May 30, 2012 opinion she held that the appearance of Tetris was protected under copyright, and that Xio’s version of Tetris infringed Tetris based on the “total concept and feel” of the copyrighted work. The “overall look and feel” was, she held, identical. This, she concluded was a case of “wholesale copying.”
Xiu had argued that anything it copied from Tetris related to rules, functions and expression essential to the game, and therefore Xiu’s program did not copy elements of Tetris that were protected by copyright. This defense may have been correct in theory, but it failed in execution. Yes, the “idea” of a game in which Tetris-shaped pieces can be manipulated to fall into place is not protected by copyright. However, Tetris made many aesthetic decisions that were unnecessary to the rules or functions of the game, yet were copied by Xiu. For example, in Xiu’s game the style of the pieces — their shading and gradation, even the color scheme — were very similar to Tetris. As the judge stated, “the style, design, shape, and mood and movement of the pieces are expression,” not “part of the ideas, rules or functions of the game.”
The protection of video games as audiovisual works under the Copyright Act is nothing new to copyright law. For example, Pac-Man received copyright protection based on the appearance of the characters and their motions and actions. (Atari v. North American Philips). The video game Galaxian received copyright protection based on the “look and feel” of the characters. (Midway v. Arctic Intern.). Like Tetris, these games are non-functional and highly creative. Therefore they receive broad copyright protection.
Could Xio have developed a non-infringing game of Tetris? Absolutely, but it would have required more creativity, and a better understanding of the copyright laws, than was demonstrated in this case.