As we previously reported, Spry Fox sued 6waves for copyright infringement back in January 2012. Spry Fox developed Triple Town, and 6waves developed the suspiciously similar Yeti Town. Well we have a significant update. 6waves filed a motion to dismiss, asking the court to throw out the lawsuit based on 6waves’ belief that they only copied unprotectable material from Spry Fox. While the court agreed in part, the court ultimately ruled that Spry Fox alleged enough in its complaint that, if proven at trial, could demonstrate that 6waves committed copyright infringement. For any game designer, we strongly recommend you read the DECISION for yourself, as it contains some good fodder regarding what is protectable versus what is not.
For example, the court states:
Copyright does not protect the ideas underlying a work or other aspects that are beyond the scope of the Copyright Act. By statute, copyright does not “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 such work.” 17 U.S.C. § 102(b). Several judicial doctrines ensure that copyright does not extend to the ideas underlying a work…. At this stage of the litigation, where the court has only the complaint, its description of Triple Town, and the accompanying screen shot images, the court concludes that the idea underlying Triple Town is that of a hierarchical matching game, one in which players create objects that are higher in the hierarchy by matching three objects that are lower in the hierarchy. Frustrating the player’s efforts are antagonist objects; aiding the player are objects that destroy unwanted or ill-placed objects. Spry Fox’s copyright gives it no monopoly over this idea. 6Waves (or anyone else) is free to create a video game based on the same idea.
However, the court goes on to analyze similarities of expression between Triple Town and Yeti Town, concluding that there are at least enough similarities to go to trial. Is this over? No. There is a long road ahead. But this Order at least gives us some guidance regarding what is protectable versus what is not. For example, the court also states:
Although the court need not decide the issue in this motion, it appears that some elements of Triple Town are not protectable because they are functional. Much as copyright does not protect ideas, it does not protect the “functional process[es]” that are “indispensable to the idea” inherent in a game. Apple, 35 F.3d at 1444 (considering functional ideas in computer operating system user interface). For example, Spry Fox’s choice of a six-by-six game grid is not likely an expressive choice. A grid that is too small would make the game trivial; a grid that is too large would make it pointless. There is perhaps a range of functionally appropriate choices for the dimensions of the game grid; perhaps a seven-by-seven grid, or a six-by-seven grid, would serve the game’s purposes just as well. But it would extend copyright protection beyond its proper scope to afford protection to a functionally-dictated choice like this one.
This is interesting because, in the past, the owners of the Tetris copyright have argued that the size of their grid was an expressive choice. and couldn’t be copied. At the time, however, the court did not appear to give much consideration to the functional considerations of grid size in the Tetris context. Perhaps it’s time to revisit that notion…
While the above examples illustrate the portions of Triple Town that are NOT protected, the court’s decision also points to some areas of expression that were copied, e.g., the progression of grass, bushes, trees, huts, houses, etc. in Triple Town to saplings, trees, tents, shacks, etc., in Yeti Town. The similarity of playing board environments, and the use of wild animals as blocking characters, to name a few. Did 6waves go too far? Time will tell.
One other interesting issue is how this might affect the EA v. Zynga case. I am sure that the attorneys for both sides are reviewing this decision in excruciating detail trying to figure out how this affects their case.
Case Update: May 2012
Following a settlement with Game Trailers out of court, John Beiswenger has voluntarily dismissed his lawsuit against Ubisoft for copyright infringement regarding the Assasin’s Creed series. The author filed for voluntary dismissal without prejudice on May 29, leaving the door open for him to reinstate the charges against Ubisoft at a later date. Beiswenger’s lawyer, Kelley Clements, stated in a recent press release that “My client’s decision to exercise his right to voluntarily dismiss the action, without prejudice, in no way diminishes his stalwart conviction in the merit of his claims against Ubisoft. He is unwavering in his belief that many key components of the Assassin’s Creed video game franchise infringe on many key components of his novel, Link.”
Beiswenger has decided to drop his lawsuit against Ubisoft at this time in order to focus his attentions elsewhere. According to his official statement, “I filed the Complaint and Motion for Preliminary Injunction in federal court because I believe authors should vigorously defend their rights in their creative works; otherwise, the laws protecting them simply have no purpose. Regrettably, the resources required to defend those rights are unavailable to many individual creators. As a result, rampant infringement is occurring with impunity.” This news comes just in time for the October 30, 2012, release of Ubisoft’s next title in the franchise, Assassin’s Creed III. Stay tuned, this is not the end of the story.
John Beiswenger has sued a whole slew of Ubisoft entities for copyright infringement regarding Ubisoft’s Assassin’s Creed franchise. Mr. Beiswenger is the author of the book “Link”, which has been sold on Amazon.com for a while. The lawsuit is John L. Beiswenger v. Ubisoft Entertainment et al., court docket 1:12-cv-00717-CCC, Middle District of Pennsylvania, filed Tuesday, April 17, 2012.
The application period for new generic top level domains (which will supplement existing gTLDs like “.com”) closed on May 30, 2012. On June 13, 2012, the Internet Corporation for Assigned Names and Numbers (ICANN), the Internet’s primary governing body, announced the applied-for gTLDs and their applicants–view the list here.
In summary, 1930 new gTLD applications were received. Due to the unexpectedly large number of applications received, ICANN has decided to evaluate the applications in 500-lot batches.
The list’s publication triggers the start of the formal objection period to applications. Objections can be based on a wide variety of grounds, including:
- Legal Rights: the applied-for gTLD violates the objector’s intellectual property rights;
- String Confusion: the applied-for gTLD is too similar to an existing top level domain or another applied-for or existing gTLD (objector must be a gTLD applicant or existing TLD operator);
- Limited Public Interest: the applied-for gTLD violates generally accepted international legal norms of morality and public order; and
- Community: substantial opposition to the applied-for gTLD exists within the applied-for gTLD’s targeted community (objector must be an established institution associated with a clearly defined community).
Generally speaking, the objection process is an inter partes process adjudicated by arbitration centers. In addition to objections, public comments regarding applications can now be submitted. The current version of the official applicant guidebook for the entire new gTLD process is available here.
Banner & Witcoff’s Richard Stockton will summarize and suggest next steps in the gTLD process in a podcast prepared in connection with the American Marketing Association. The podcast will be made available on Banner & Witcoff’s website on June 21. In the interim, please feel free to direct questions to Richard (firstname.lastname@example.org) or other Banner & Witcoff attorneys.
Case Update: May 2012
After 2 years of legal dispute between Gary Friedrich and Marvel, Marvel filed a counterclaim against Friedrich in December 2010. Marvel claimed that Friedrich had violated its copyright and trademark ownership when he sold Ghost Rider merchandise.
Both Friedrich and Marvel filed for summary judgment during December of 2011. Judge Katherine Forrest granted the defendant’s motion for summary judgement on the issue of ownership of the Ghost Rider character. It was determined that Friedrich had no legal ownership of the character since he was first paid to create the work with a check containing language assigning all rights to Marvel. Furthermore, Friedrich and Marvel had signed a contract in 1978 assigning copyright renewal rights to Marvel.
Regarding Marvel’s counterclaim against Friedrich, the court determined that Friedrich had infringed Marvel’s copyright and he was ordered to pay $17,000 for profits realized from the sale of Ghost Rider merchandise. Friedrich is also enjoined from future uses of the Ghost Rider character.
Case Update: June 2011
This case has been transferred from the Southern District of Illinois, to the Southern District of New York.
Ghost Rider creator Gary Friedrich has apparently sued a whole host of people, including Take2 Interactive, over his rights in the Ghost Rider character. He claims to have rights to the character since 2001, yet there is a movie, merchandising, video game (that’s where Take2 got sucked in), etc.
Sounds like the details are still a little fuzzy, but we’ll add this case to our list and keep you posted as we hear more.
In the meantime, read more here.
The National Law Journal selected 20 law firms who have proven to be innovators in applying legal principles to fast-changing technologies, and who have demonstrated creative strategies for litigation, patent prosecution, licensing and other transactional work. Banner & Witcoff’s ITC work, litigation work at the U.S. Court of Appeals for the Federal Circuit and design patent prosecution work are specifically highlighted in the article. Unlike many other IP rankings and lists, the NLJ is not a “pay for play” listing of IP firms, but rather reflects an objective assessment by independent analysts. This national recognition of the firm and its lawyers is indicative of the firm’s dedication to achieve and maintain the highest standards within the IP legal market.
Congratulations to everyone at Banner & Witcoff!
The Patent Arcade’s own Ross Dannenberg is a contributor to a new book on early video game history. Before the Crash: Early Video Game History, edited by Mark J. P. Wolf, will give readers a thorough overview of the early days of video games along with a sense of the optimism, enthusiasm, and excitement of those times. Students and teachers of media studies will enjoy this compelling volume.
Following the first appearance of arcade video games in 1971 and home video game systems in 1972, the commercial video game market was exuberant with fast-paced innovation and profit. New games, gaming systems, and technologies flooded into the market until around 1983, when sales of home game systems dropped, thousands of arcades closed, and major video game makers suffered steep losses or left the market altogether. In Before the Crash: Early Video Game History, editor Mark J. P. Wolf assembles essays that examine the fleeting golden age of video games, an era sometimes overlooked for older games’ lack of availability or their perceived “primitiveness” when compared to contemporary video games.
In twelve chapters, contributors consider much of what was going on during the pre-crash era: arcade games, home game consoles, home computer games, handheld games, and even early online games. The technologies of early video games are investigated, as well as the cultural context of the early period—from aesthetic, economic, industrial, and legal perspectives. Since the video game industry and culture got their start and found their form in this era, these years shaped much of what video games would come to be. This volume of early history, then, not only helps readers to understand the pre-crash era, but also reveals much about the present state of the industry.
Mark J. P. Wolf is a professor in the Communication Department at Concordia University Wisconsin. His books include Abstracting Reality: Art, Communication, and Cognition in the Digital Age; The Medium of the Video Game; Virtual Morality: Morals, Ethics, and New Media; The Video Game Theory Reader; Myst and Riven: The World of the D’ni; The Video Game Explosion: A History from PONG to PlayStation and Beyond; The Video Game Theory Reader 2; and the forthcoming two-volume Encyclopedia of Video Games. He is also founder of the Landmark Video Game book series and the Video Game Studies Scholarly Interest Group within the Society of Cinema and Media Studies.
Contributors: Jessica Aldred, Ralph H. Baer, Brett Camper, Karen Collins, Ross A. Dannenberg (Editor of Patent Arcade!), Leonard Herman, Erkki Huhtamo, Carly A. Kocurek, Sheila C. Murphy, Ed Rotberg, Tim Skelly, Carl Therrien, Staci Tucker, Zach Whalen, Mark J. P. Wolf
If there are any law students out there looking for an internship, send me an email with your resume, as we’re looking for some summer help with lawsuit research, patent research, writing of blog entries, etc. It’s unpaid, but you will get some great experience. Persons local to the DC area are preferred, but will consider remote work if it makes sense.
One caveat: we can only consider candidates who are NOT eligible to take the patent bar. This basically means we cannot consider anyone with a science or engineering degree. So, liberal arts folks, this is a great opportunity to get some exposure to IP without the commitment! Send me your resumes!
UPDATE: Position filled. Thanks everyone for your interest.
Case Update: July 2012:
On July 5, Guitar Apprentice filed a notice of voluntary dismissal without prejudice that has ended litigation started earlier in April. An order of dismissal was signed by Judge Samuel H. Mays, Jr. on July 12, 2012. It has not been released whether the two parties have reached a settlement agreement or not.
Guitar Apprentice sued Ubisoft on April 5, 2012, in the Western District of Tennessee for patent infringement of USP 8,119,896. Court docket 2:12-cv-02265-SHM-dkv. The ‘896 patent is titled “Media system and method of progressive musical instruction.” Ubisoft is the publisher of Rocksmith, a game I must admit I LOVE.
1. A method for transmitting data comprising a sequence of blocks in encrypted form over a communication link from a transmitter to a receiver comprising, in combination, the steps of:providing a seed value to both said transmitter and receiver,generating a first sequence of pseudo-random key values based on said seed value at said transmitter, each new key value in said sequence being produced at a time dependent upon a predetermined characteristic of the data being transmitted over said link,encrypting the data sent over said link at said transmitter in accordance with said first sequence,generating a second sequence of pseudo-random key values based on said seed value at said receiver, each new key value in said sequence being produced at a time dependent upon said predetermined characteristic of said data transmitted over said link such that said first and second sequences are identical to one another a new one of said key values in said first and said second sequences being produced each time a predetermined number of said blocks are transmitted over said link, anddecrypting the data sent over said link at said receiver in accordance with said second sequence.2. The method as set forth in claim 1 further including the step of altering said predetermined number of blocks each time said new key value in said first and said second sequences is produced.
1. A method for enabling a first user to interact with other users in a virtual space, each user of the first user and the other users being associated with a three dimensional avatar representing said each user in the virtual space, the method comprising the steps of:customizing, using a processor of a client device, an avatar in response to input by the first user;receiving, by the client device, position information associated with fewer than all of the other user avatars in an interaction room of the virtual space, from a server process, wherein the client device does not receive position information of at least some avatars that fail to satisfy a participant condition imposed on avatars displayable on a client device display of the client device;determining, by the client device, a displayable set of the other user avatars associated with the client device display; anddisplaying, on the client device display, the displayable set of the other user avatars associated with the client device display.
Similar to its other patents, the ‘501 patent recites a limitation regarding receiving position information from less than all the other avatars in the same virtual space (“receiving, by the client device, position information associated with fewer than all of the other user avatars in an interaction room of the virtual space”).
In a case reminiscent of Incredible Technologies v. Virtual Technologies, and one that is sure to provide some much needed guidance (if it goes the distance) regarding when copying someone else’s game has gone too far, Spry Fox has sued LolApps/6Waves for copyright infringement and false designation of origin (fancy terminology for saying they stole their identity). Spry Fox makes the popular game Triple Town. After negotiations with LolApps/6Waves fell through to publish Triple Town on Face book, the defendants launched their own game, Yeti Town, bearing striking similarity to Spry Fox’s Triple Town. The game play is virtually identical, just with a new skin (i.e., new artwork and graphics). However, much of the text appears to have been copied, as well as what are arguably arbitrary assignments of point values for in-game actions. So there may be some meat here.
WIRED has an interesting article regarding Microsoft’s inclusion of badges as rewards for developers in Visual Studio. As developers write code, an Achievements extension grants badges in much the same way a video game does. Badges are associated with certain accomplishments — both good and bad — and many of the good badges also come with points. The hope is that these virtual rewards will spark competition, and that competition will improve the quality of the work. Read more at WIRED.com.
Sorry we’ve been silent for a while. Our “real jobs” has been keeping us away. In any event, an occurrence on Christmas Day reminded me of the progress that video games have made in the last 30 years. We can now injure ourselves running and jumping while playing video games just like we can running and jumping outside. I was playing Kinect Sports with my niece and my brother says to me “careful, I pulled a calf the first time I played.” My brother is older than me, so surely I will be fine, I though. Well as I landed from jumping over the last hurdle… pop! I TORE my calf muscle. Yes… ouch! Lesson learned. But this did remind me that video games have become much more sophisticated, developed, and viable for use in teaching real-life situations. I love my job.
Microsoft has acquired Twisted Pixel Studios, according to a recent Microsoft press release:
As a step in continuing to deliver Microsoft Studios’ innovative game and entertainment offerings, Microsoft has announced the acquisition of Austin, Texas-based game developer Twisted Pixel, the creative minds behind Xbox LIVE Arcade titles such as “Splosion Man” and the recent Kinect for Xbox 360 title, “The Gunstringer.”
Ross A. Dannenberg publishes new book: “The American Bar Association’s Legal Guide to Video Game Production”
- Patents, Copyright and Trademarks
- Business and Finance Issues
- Risk and Insurance
- Intellectual Property Agreements
- The Children’s Online Privacy Protection Act
- Publishing Your Game
- Licensing and Open Source Material
Mr. Dannenberg is an adjunct professor of copyright law at George Mason University School of Law. Mr. Dannenberg is also the Editor-in-Chief of the Patent Arcade website, a legal blog discussing intellectual property protection of video games.