Re: game idea = copyright or patent?

This reminds me to renew a question I asked some months back. Does anyone know of review articles concerning the case law of intellectual property in games. I periodically ask my students to invent games but to avoid infringing on existing ones. How can one tell?

I have generally assumed that the rules of a game are protectable (by copyright) sort of in the way that plot elements in a story might be -- even if different words are used to spell out these rules. Rules define games in much the same way that words define a poem. What makes a game original is the juxtapositon and interrelation of rules and the way in which they constrain play.

If this makes sense then one might not need to rely on patent to protect games. My argument may sound a bit like an attempt to protect look and feel, but I think the mathematical finiteness of rules allows for a tighter mensuration of the resultant domains of originality and expression than might be possible in the areas of look and feel (as perhaps separable from interface design, which again takes on a more Chomskyan grammatical flavor). If one could conclude that game A (as formulated by its rules) is mathematically equivalent to game B (as formulated by its rules) then would the words used in those formulations even matter?

David Dailey

At 12:25 PM 6/10/2005 -0400, you wrote:
>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
><mailto:kgw[_at_]dakotacom.net>kgw[_at_]dakotacom.net
>
>----- Original Message -----
>From: <mailto:Lalpdx1[_at_]aol.com>Lalpdx1[_at_]aol.com
>To: <mailto:CNI-COPYRIGHT[_at_]cni.org>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 - 02:25:01 GMT