Re: game idea = copyright or patent?

the only, or perhaps the best, and most certainly the cheapest, tho' never easiest way to protect an idea is to obtain a confidentiality agreement before presenting it

Robert Labossiere
Toronto
----- Original Message -----
From: Kathleen Williamson
To: CNI-COPYRIGHT -- Copyright & Intellectual Property Sent: Friday, June 10, 2005 12:25 PM
Subject: [CNI-(C)] game idea = copyright or patent?

Hi all:
I haven't seen the tangible or fixed manifestation of this idea yet, but the question is coming my way. I realize it has to be more than an idea. Client has a game that she wants to present to game companies. Does this call for a patent or a copyright?Client doesn't have a whole lot of money up front, so if its fixed in a booklet format with drawings and instructions, etc., can the idea itself be protected in a simple copyright, i.e, before going the additional expenses of patents? thanks,
Kathleen Williamson, Attorney
Tucson, Arizona
kgw[_at_]dakotacom.net

• Original Message ----- From: Lalpdx1[_at_]aol.com To: CNI-COPYRIGHT -- Copyright & Intellectual Property Sent: Tuesday, June 07, 2005 2:30 PM Subject: [CNI-(C)] Re: Software Screen Shots

Of course, the best way to prevent liability over use of the logo and screen shots is to obtain written permission. This tactic also avoids the need to rely on somewhat unpredictable legal defenses to copyright and trademark infringement. Note too, that some software companies list permitted and/or forbidden uses on their licenses and/or web sites, and you might check this out.

If obtaining permission is impractical, then you need to consider the proper way to use the logo (which subject I'll leave alone), and then the copyright issues involved in use of screen shots. "Fair use" comes into play as a defense to a potential copyright lawsuit.

As an initial matter, the graphical user interface produced by a computer program can fall under copyright protection except to the extent it is merely functional. Your software's screens might contain factors such as color, originality, idiosyncratic elements, etc., that might well make them projectable creative "expressions" of a function or idea. I'd assume this, to be safe.

There are four traditional (and now statutory) factors that are taken into account in weighing whether a particular use of copyrighted materials is a fair use. The factors include:

(a) the purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes;

(b) The nature of the copyrighted work;

(c) the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and

(d) The effect of the use upon the potential market for or value of the
copyrighted work.

Courts once considered any commercial use to be presumptively unfair, and this often ended the analysis. In 1990, however, the Supreme Court reversed a 6th Circuit decision for using just this presumption. All factors must be considered in weighing the factors, and use of commercial nature is properly just one element to be considered in determining whether a use is fair use.

Unfortunately, while there exist many cases in which courts have weighed the fair use factors to determine whether a particular use is a fair use, there are scant few that have addressed uses of screen shots derived from computer programs.

I'd look up two cases that should give you an idea of how courts might handle a fair use analysis based on the above factors. One specifically addressing the use of screen shots (from game software) is Sony v. Bleem, 214 F3d 934 (9th Cir 2000). Another (addressing photo images copied between web sites) is Kelly v. Arriba Soft Corp., 280 F3d 934 (9th Cir 2001). The courts in both of these cases found fair use under circumstances that seem far more problematic than yours.

Lawrence A. Locke Received on Tue Jun 14 2005 - 00:00:00 GMT