I have an idea for a video game. How can I protect it?


This is one of the most often asked questions. The answer is difficult and equivocal. On one hand, a good idea is half the way to success. On the other hand, ideas are regarded as free and should not be monopolised, but a specific manner or form of expression of an idea can be the subject of copyright protection. However, drawing the line between an unprotected idea and a protected manner of expression is a difficult challenge that depends on the specific factual circumstances. First it must be determined what can be protected in a computer game, and then how these elements can best be protected.

Idea vs expression

Copyright protects a work, i.e. any manifestation of creative activity of an individual nature, fixed in any form, regardless of value, intended use, or manner of expression. Protection extends only to the form of expression (e.g. in the case of a computer program, the source code and object code are forms of expression, the Court of Justice held in C-393/09, Bezpečnostní softwarová asociace – Svaz softwarové ochrany).

Inventions, ideas, procedures, operating methods and rules, and mathematical concepts are not subject to copyright protection (Art. 1(2)1 of the Polish Act on Copyright and Related Rights). Thus the rules of the game of noughts and crosses (tic-tac-toe) are not subject to copyright protection, meaning that they can be used by various persons and take various forms of expression. (An analysis of whether the examples below constitute a “work” for purposes or copyright or an unprotected product is beyond the scope of this article.)

tic tac toe

Thus the rules of the game as such are not subject to copyright, as copyright protects only a creative, individual manner of expressing an idea. If the idea for a game takes on a creative and individual form of expression, e.g. as a scenario, graphics, or computer program, protection of such products on the basis of copyright may be considered.

Someone copied my idea! Really?

Popular goods, including video games, often fall victim to clones and copycats, which appear as soon as an item becomes a market hit. In many instances, disputes arise over the distinction between an unprotected idea and a protected manner of expression. That was the case for example in the dispute between Atari (with its Asteroids games) and Amusement World (Meteors).

The rules of the two games were identical: the player flies a spaceship, seeking to avoid collisions with asteroids (or meteors) and enemy spacecraft. The judge ruling in the case found there were certain similarities between the games (e.g. in both games there are rocks of three different sizes, and a collision with a rock disables the player’s spaceship, and in both games the player’s craft fires bullets). But there were also differences; for example, the meteors were coloured and the asteroids were black and white, the player’s craft in Meteors moved and fired faster, and so on. The court concluded that Meteors did not violate the copyright to Asteroids. In the judge’s view, Amusement World exploited an unprotected idea and gave that idea a different form of expression than in Asteroids. As the judge held, the defendant was entitled to use the idea for the game so long as it gave the idea a different expression, i.e. used different symbols, moves and sounds than the plaintiff (Atari, Inc. v. Amusement World, Inc., US District Court for Maryland, 1981).

Another interesting example was the litigation between Tetris Holding and Xio Interactive, in which the key question was whether Xio infringed the copyright to Tetris or merely exploited an unprotected idea. Tetris argued that elements of the game protected by copyright (e.g. the appearance, colour scheme, and arrangement of playing pieces comprised of four squares, the appearance of the game playfield, the way the pieces move and rotate on the playfield) were adopted by Xio in its game Mino. Xio claimed it had only copied unprotected functional elements, including the rules of the game, and thus did not infringe Tetris’s copyright (Tetris Holding, LLC v. Xio Interactive, Inc., US District Court for New Jersey, 2012).

tetris

In its analysis, the court pointed to the striking similarities between the games, in the graphics, the style, the design of the playing pieces, and the colour and motion of the pieces, when creative freedom would allow for a much different form for the defendant’s game. While maintaining the rules of the game (rotating the pieces to fit empty spaces and fill up the lines), the pieces could be given a different graphic appearance, or different ways of rotating and moving the pieces could be devised. The same idea could be expressed in many different ways, but Xio copied the expression by Tetris, and thus the court ruled in favour of Tetris.

These two cases show that it is not easy to distinguish between an unprotected idea and a protected expression.

Other methods of protecting elements of a video game

It should be borne in mind that various elements of a video game may be protected by different intellectual property rights. Elements of graphics or music might be protected by copyright as works, but could also be registered as trademarks. The appearance of figures in a video game may be registered as a design. It cannot be ruled out that certain solutions in a video game might constitute an invention and obtain patent protection. But that is a topic for another article.

Dr Monika A. Górska, attorney-at-law, Intellectual Property practice, Wardyński & Partners