In a decision that set the gaming world abuzz, on May 30, 2012, the District Court of Jersey held that the development of an iOS clone of the popular puzzle game Tetris infringed the copyright held by Tetris Holding, LLC (“Tetris Holding”). Given the many permutations of Tetris that have surfaced since the game’s inception, the decision has left many in the gaming industry questioning to what extent a clone may be developed that is based, in part or in whole, on the ideas, concepts and layout of the original game.
Tetris was developed in the mid-1980’s by Russian computer programmer Alexy Pajitnov. The game itself is rather simple: the player must create horizontal lines along the bottom of a playing field by fitting together geometric block pieces called tetrominos. Each time a line is completed, it disappears from the playing field and the player is awarded points. Tetris gained worldwide popularity following its introduction on the Nintendo Entertainment System gaming platform and its hand-held progeny, the Game Boy. Since its inception, Tetris has sold 200 million units worldwide on a variety of platforms, including Apple‘s iPhone.
In May 2009, Xio Interactive, Inc. (“Xio”) developed Mino, a multi-player puzzle game that Xio’s owner admits was copied from Tetris. After learning of Mino, Tetris Holding, the owner of the copyright to Tetris, sent take-down notices to Apple, Inc., which temporarily removed the game from its online App Store (its application marketplace). Apple later notified Tetris Holding that it would reinstate the game to its App Store unless Tetris Holding filed a copyright infringement lawsuit against Xio, which it did in December 2009. Both Tetris Holding and Xio moved for summary judgment.
Given Xio’s admission that it “copied Tetris, purposefully and deliberately, in designing Mino,” the question before the court in Tetris Holding, LLC v. Xio Interactive, Inc., 2012 WL 1949851 (D.N.J. May 30, 2012), was “not whether summary judgment [was] appropriate, but rather, which party [was] entitled to summary judgment.” Xio’s defense was based almost entirely on the proposition that the elements copied from Tetris, such as “the rules, function, and expression essential to the game play,” were not protectable under the Copyright Act.
Video games, like other forms of electronic media, are entitled to limited levels of copyright protection. That limitation arises from the principle that copyright law does not protect ideas, only expressions of ideas. While game mechanics and rules (the idea) are generally not protectable, the particular manner in which those mechanics and rules are presented (the expression) may be. Using the “idea-expression dichotomy” as its guiding principle, the court first recognized that the abstract ideas underlying Tetris, such as the rotation of falling blocks to create horizontal lines, were not protectable. However, the court found Mino to be identical to Tetris in ways beyond its basic unprotectable ideas.
For example, the Court found “the style of the pieces [in the two games] 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 case on the pieces.” The court went on to discuss additional protectable elements, such as: (1) the dimensions of the playing field; (2) a preview of the next piece to fall; (3) the change in the color of the pieces when they are locked with accumulated pieces; and (4) the automatic filling of the playing field when the game is over. The court concluded that “[n]one of these elements are part of the idea (or the rules or the functionality) of Tetris, but rather are means of expressing those ideas.” Because Xio chose to copy these protectable elements despite the “almost unlimited number” of variations that were available to it, the court had little hesitation granting summary judgment in favor of Tetris Holding.
There is no question that clones – games that are based in whole or in part on other popular games – have permeated the video game landscape. Even a cursory search of the Apple’s App Store reveals countless examples of clones developed to capitalize on the popularity of previously released games. Given the limited protectability of games, courts have been reluctant to hold that clones infringe on any exclusive rights afforded to game developers. Although it remains to be seen whether Tetris Holding, LLC will have a major impact on federal courts addressing this issue, or whether the appellate courts will revisit the “idea-expression dichotomy” in the context of video games, the holding reinvigorates the debate over how far a game developer may go when developing a clone.