Plaintiffs Tetris Holdings and
Tetris Company (respectively, the owner and licensor of copyright
and trade dress in well-known 1980s videogame Tetris) brought a lawsuit against defendant Xio Interactive,
creator of Mino, a 2009 multiplayer puzzle
videogame for iPhone. They claimed, among the other things, federal copyright
and trade dress infringements.
Tetris is a facially simple puzzle game in which the player is tasked with
creating complete horizontal lines along the bottom of the playing field by
fitting several types of geometric block pieces (called Tetrimino pieces)
together. The game becomes more complex and more difficult as one progresses
and is left with fewer options to arrange the pieces and less area of the
playing field is available.
Since its
first appearance, Tetris Holding has developed numerous versions of Tetris for modern platforms, including iPhone.
According
to District Judge Freda Wolfson, the facts of the case were undisputed.
Background
Mino was created by recent
college graduate Desiree Golden, who admittedly used Tetris
as an inspiration.
Actually, Mino was intended to be Golden's version of Tetris and Golden had donwloaded Tetris's iPhone app for the purpose of developing Mino.
Yet defendant Xio, a company
formed by Golden, claimed that it had taken
inspiration
from Tetris after diligently researching intellectual
property law and in such a way so as not to
copy any copyright-protected materials. Indeed,
the elements copied were said to be
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| Mino |
non-original expression of Tetris, because they
were part of the game itself—the rules, function, and expression essential to
the game play—which is not protected. In any case, Xio had also tried to obtain a licence from Tetris Holding, but this was refused.
Shortly after
Mino was released, Tetris sent DMCA takedown notices to Apple, which removed Mino from its apps marketplace. However, Xio
sent two counter-notifications and Apple informed Tetris Holding that
Mino would be reinstated unless Tetris filed a lawsuit. This is what eventually
happened.
Tetris
Holding claimed that Mino infringed the following original elements of Tetris:
1. Seven Tetrimino playing pieces made up of four
equally-sized square joined at their sides;
2. The visual delineation of individual blocks that
comprise each Tetrimino piece and the display of their borders;
3. The bright, distinct colors used for each of the
Tetrimino pieces;
4. A tall, rectangular playfield (or matrix), 10
blocks wide and 20 blocks tall;
5. The appearance of Tetriminos moving from the top of
the playfield to its bottom;
6. The way the Tetrimino pieces appear to move and
rotate in the playfield;
7. The small display near the playfield that shows the
next playing piece to appear in the playfield;
8. The particular starting orientation of the
Tetriminos, both at the top of the screen and as shown in the "next
piece" display;
9. The display of a "shadow" piece beneath
the Tetriminos as they fall;
10. The color change when the Tetriminos enter
lock-down mode;
11. When a horizontal line fills across the playfield
with blocks, the line disappears, and the remaining pieces appear to
consolidate downward;
12. The appearance of individual blocks automatically
filling in the playfield from the bottom to the top when the game is over;
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| Both Tetris and Mino were iPhone apps |
13. The display of "garbage lines" with at least one missing block in random order; and
14. The screen layout in multiplayer versions with the
player's matrix appearing most prominently on the screen and the opponents'
matrixes appearing smaller than the player's matrix and to the side of the player's matrix.
The judgment
The judge held
that it was unquestionable that Mino and Tetris looked alike. However, to resolve the claim
of copyright infringement, it was necessary to first determine which elements
of Tetris are protected and which are not.
Pursuant to 17 USC §102 and relevant case law,
elements of computer programs which may
be protected by copyright include both
the code of the program and its graphical elements. In no case, however, does
copyright protection extend to any idea, procedure, process, system, method of
operation, concept, principle, or discovery, regardless of the form in which it
is described, explained illustrated, or embodied in a work.
The judge
acknowledged that the idea/expression dichotomy is simple to state but "difficult to apply, especially in the
context of computer programs." [this also because US courts have elaborated many
tests to determine what is protectable and what is not]. However, said the judge,
At the end of the day, no matter how one
expresses the test, the task is clear: because copyright only protects original
expression, I must delineate between the copyrightable expression
in Tetris and the unprotected elements of the program, then evaluate whether
there is substantial similarity between such expression and Defendant's Mino game.
The starting point in this analysis must be to understand the ideas and
concepts of Tetris itself.
To this end, two
related doctrines must be considered: merger and scènes à faire. Merger exists
when an idea and its particular expression become inseparable. The doctrine
of scènes à faire applies to expression that is so associated with a
particular genre, motif, or idea that one is compelled to use such expression.
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Where expert evidence is gathered
in videogame cases |
With these
principles in mind, the judge held that:
Xio is correct that one cannot protect some
functional aspect of a work by copyright as one would with a patent. But this
principle does not mean, and cannot mean, that any and all expression related
to a game rule or game function is unprotectible. Such an exception to
copyright would likely swallow any protection one could possibly have; almost
all expressive elements of a game are related in some way to the rules and
functions of game play. Tetris Holding is as entitled to copyright protection
for the way in which it chooses to express game rules or game play as one would
be to the way in which one chooses to express an idea ... Xio
conflates the doctrines of merger and scènes à faire to say that Tetris Holding cannot protect expression inseparable from either game rules or game function
... Xio also relies on a number of opinions discussing video games. In no case, however, did a court find that expression was unprotectible merely because it was related to a game rule or game function.
Within
this framework, the judge then compared the audiovisual aspects of the two
games:
Tetris is a puzzle game where a user
manipulates pieces composed of square blocks, each made into a different
geometric shape, that fall from the top of the game board to the bottom where
the pieces accumulate. The user is given a new piece after the current one
reaches the bottom of the available game space. While a piece is falling, the
user rotates it in order to fit it in with the accumulated pieces. The object
of the puzzle is to fill all spaces along a horizontal line. If that is
accomplished, the line is erased, points are earned, and more of the game board
is available for play. But if the pieces accumulate and reach the top of the
screen, then the game is over. These then are the general, abstract ideas
underlying Tetris and cannot be protected by copyright nor can
expressive elements that are inseparable from them. [Indeed, in the past few years, many Tetris look-alike versions have been released: just search them on Google]
The parties argued
over a number of particular features of both games, which the judge
 |
Will a 'common user' get upset when he finds out
that his new videogame is an old game's clone? |
found it
appropriate to compare as they would appear to a layman concentrating upon the
gross features rather than an examination of minutiae. The conclusion was in
the sense that:
Without being told which is which, a
common user
could not decipher between the two games. Any differences between the two are
slight and insignificant. If one has to squint to find distinctions only at a
granular level, then the works are likely to be substantially similar. Reviewing
the videos of the game play bolsters this conclusion as it is apparent that the
overall look and feel of the two games is identical. There is such
similarity between the visual expression
of Tetris and Mino that it is akin to literal copying
... In particular, the style of the pieces is nearly indistinguishable,
both in their look and in the manner they move, rotate, fall, and behave.
Similar bright colors are used in each program, the pieces are composed of
individually delineated bricks, each brick is given an interior border to
suggest texture, and shading and gradation of color are used in substantially
similar ways to suggest light is being cast onto the pieces.
This
decision is important, in that it further clarifies (also in theoretical terms) the
scope of copyright protection for computer programs (in particular videogames),
as well as the relationship between the idea/expression dichotomy, merger, and scènes à
faire.
As
observed by Jack Schecter, the case demonstrates that “the critical fight with clones will be over the appropriate level of
abstraction of the game mechanics and gameplay. The Tetris developer’s victory was almost assured once
it persuaded the court to identify the underlying game rules and gameplay at a
very high level. Having adopted a relatively high-level understanding of
the idea of Tetris, the court could readily identify more
detailed, granular expressions of that idea that qualified for copyright
protection.”
In any case, what seemed decisive to the actual finding that Xio had
infringed Tetris Holding’s copyright were the similarities in the
look and feel of the two games (which were held to be tantamount to literal copying), rather than sole reliance on the
idea/expression dichotomy.
