Elements of the game that are not subject to copyright
I’ll tell you a story from Digilaw’s everyday life 🤫
Recently, our regular client, a mobile game developer, reached out to us. Apple had sent them a notification about a complaint, alleging a violation of another game developer’s copyrights. The claim specifically accused them of stealing the game’s name, game mechanics, and UI design (user interface design). While this may sound dramatic, it was purely the subjective opinion of the complainant, not aligning with legal requirements and standards. Let’s break it down point by point:
- Copyrights on the game name
The concepts of both games revolve around puzzle-solving, and as a result, their names include words like “Blockin’”, “Block,” “Puzzle,” and “Color.” Indeed, at first glance, the game names seem quite similar. But (there’s always a “but”): the mentioned words are used in a wide range of games related to puzzle-solving or construction. Such words (and their combinations) are commonly used, have become standard in the game development industry, and are not tied to a specific product or developer. Therefore, they cannot be recognized as individual or unique to a specific game. Their widespread use is common in the industry, where developers often use similar verbal constructions to express the general theme of the game.
Legal precedents and standards confirm that commonly used words and phrases cannot be protected by copyright. As noted by the U.S. Copyright Office (37 C.F.R. § 202.1), “words and short phrases, such as names, titles, and slogans are not eligible for copyright protection” because they contain minimal creative authorship. This is due to the fact that they do not represent unique creative expressions but rather are part of common language practices in a given field, and thus, they are not subject to copyright protection.
The name of a game can only be protected through a registered trademark, providing its owner with exclusive rights to use that name.
In summary, using similar terms in game names is not sufficient grounds for allegations of copyright infringement, as these terms are standard and widely used in the game development industry. They can be applied individually or in combination by any developers. Additionally, such words or expressions may be used not only in online games but also in other variations of games related to puzzles, blocks, constructions, or brain-teasers.
2. Copyright on Game UI Design
In general, the UI design of a game is protected by copyright, but… Here comes that “but” again… Lawyers always find one👌🏻
Some elements of UI design, such as the pause button, play level button, hint button, and others, are standard and widely used in many games. These basic elements are widely accepted and employed to create a unified and understandable interface language in the game development industry. They are not unique or original expressions of creativity, and thus, they do not fall under the scope of copyright protection.
Thus, copyright does not protect components that are not considered “unique elements of the game”. In accordance with the U.S. Code (§ 102), copyright protection extends only to ORIGINAL works or their parts.
Additionally, there is the concept of scènes à faire, which states that common elements necessary for implementing a specific idea cannot be protected by copyright. Therefore, when a designer uses commonplace elements, such as standard buttons (pause button or hint button) in their game UI design, the concept of scènes à faire recognizes them as non-copyrightable or standard components that cannot be protected by copyright. These elements include recognizable and widely used symbols necessary for implementing a specific idea in the game development industry. This principle was supported in the case of Whelan Associates, Inc. v. Jaslow Dental Laboratory, Inc., 609 F. Supp. 1307 (E.D. Pa. 1985), where the court ruled that common design elements dictated by functional considerations are not protected by copyright. Therefore, the use of standard buttons in interface design is not a copyright infringement if applied in a standard and recognizable manner.
As stated in the case of Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991), copyright does not protect standard and well-known elements.
Thus, in accordance with the legal standards, common graphic design elements cannot be protected by copyright, and therefore, their use is legal.
Moreover, if a game has distinctive features, is more modernized and contemporary, it may also not fall under copyright protection. The courts, as evidenced by the case of Atari, Inc. v. North American Philips Consumer Electronics Corp., 672 F.2d 607 (7th Cir. 1982), consistently rule in favor of developers who incorporate distinctive elements that enhance user experience and provide unique functional capabilities.
3. Copyright on Game Mechanics
It is crucial to emphasize that game mechanics are not protected by copyright. Many games utilize similar or analogous gameplay elements, and this does not violate copyright laws. Specifically, copyright does not extend to the rules and manner of play of a game because these elements pertain to the idea of the game, and ideas, as known, are not subject to protection. Furthermore, in the gaming industry, it has always been recognized practice to borrow game mechanics or standard gameplay mechanics from previously created ones, so these components are almost always not legally protected by copyright.
This is confirmed by the U.S. Code (17 U.S. Code § 102), which indicates that copyright does not extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of how they are described, explained, illustrated, or embodied in such a work.
In the context of games, § 102(b) means that rules, game mechanics, and any other functional elements are not protected by copyright. The Games Information Bulletin from the Copyright Office explains this as follows: “Copyright does not protect the idea for a game, its name or title, nor does it protect any method or methods for playing it. Nor does copyright protect any idea, system, method, device, or trademark material involved in developing, merchandising, or playing a game. Copyright protects only the particular manner of an author’s expression in literary, artistic, or musical form”.
Let’s move on to conclusions. Elements of a game, such as music, characters, source code, script, graphics, design, etc., are subject to protection against plagiarism. However, the discussed case illustrates exceptions to this rule: the game’s name and its mechanics are not protected by copyright; design may be recognized as eligible for copyright protection if there are distinctive features of the game and unique elements, improvement.
Therefore, it is always advisable to communicate with experienced intellectual property lawyers who can navigate the situation, provide defense against unfounded claims and complaints, ensuring that your reputation is not tarnished by a complainant labeling you as a “plagiarist”.
Isareva Viktoria. Paralegal at Digilaw
