Wednesday, January 16, 2008

Scrabbling Copyright

A recent suit in India, followed by Hasbro, over an online version of Scrabble called Scrabulous shows another side of social networking sites: the ability to change a gaming experience between two people into one taking place over continents, involving, it is reported, 2.3 million daily users on Facebook. Permission was allegedly sought, but not received; not surprising since Hasbro granted Electronic Arts exclusive rights. But I don't think EA had put out a social networking version, which is reportedly quite addictive, and can be played out over days, not hours, and across continents, not just living rooms. (I played Candyland with my twins this morning, so traditional board games are still viable too).

There are unauthorized versions of other games, including of Hasbro's Monopoly and Boggle, but in those cases, the games were altered. Copyright in games extends only to the graphic elements and textual explanations, not to the way the game is played, so it is possible to make some changes and avoid infringement. The reaction of fans of Scrabulous Hasbro's actions has not been positive.

11 comments:

Andrew Oh-Willeke said...

Notably, Scabble was invented in the United States, after some abortive prior attempts, in 1948 when the Coypright Act of 1909 was in force. The 1909 Act provided for an initial 28 year period of protection followed by an option for one renewal period of 28 years. Hence, the inventors of the game had no reason to expect that they would receive any copyright protection beyond 2004.

Alas, we have this problem because Hasbro and many others got a windfall from Congress in the Copyright Act of 1976, removing most pre-1923 works from public domain.

such sweet thunder said...

(I played Candyland with my twins this morning, so traditional board games are still viable too).

Did you cheat while playing the kids? Be honest with us . . .

William Patry said...

My twins always win, honestly.

X. Trapnel said...

I'm a bit puzzled by how this works in practice--copyright adhering only to "graphic elements and textual explanations," that is. I'm not a scrabble fan, but there really isn't much in the way of 'graphic elements' unless you count the spatial arrangement of bonus squares. So that seems easy enough to get around. Similarly, nobody cares about the exact wording of the rules.

But: what about the derivative works right? Isn't that where Hasbro would win--because I seriously doubt the Scrabulous folks followed any rigorous 'clean room' procedure in order to avoid having the program authors avoid any access to the original work; couldn't the claim be that the computer program is an unauthorized derivative work, with access + substantial similarity (to the textual explanations / graphic elements) easy to demonstrate?

But if so, I don't see how just 'making some changes' avoids this danger, unless you go the weird 'clean room' route. Could you perhaps clarify?

Thanks for your time!

William Patry said...

Dear X, by referring to graphic element I meant board games generally not Scrabble, which as you point out is devoid of visual features like those found in Candyland. So the scope of copyright is pretty narrow.

X. Trapnel said...

Thanks for the clarification! But does the derivative-works issue still bite? Even though the scope is quite narrow, unless you did the clean-room procedure and had a "scrabble virgin" write the code/instruction manual while having someone else describe the functionality, wouldn't you still be creating a derivative work from the few protected elements?

Or (so long as the colors were changed, etc) would it be fair use on the 'amount' issue--the graphical elements/text would represent a small part of the new computer program?

Dan said...

Perhaps they have a better case with trademark law, where "Scrabble" is a protected brand name (they insist on officially referring to the game as "Scrabble brand crossword game") and "Scrabbulous" may be seen as confusingly similar.

William Patry said...

Dear X, you can always start with what would otherwise be an infringing derivative (or other) work and make sufficient changes so that the end product is not substantially similar.

steveg said...

Hi Mr. Patry,

I quoted you in a little article I wrote about this conflict last week. I thought that the link back would display as a comment here so you'd be sure to find out about it, but the trackback between blogger and wordpress doesn't seem to have worked out. So here's the link to the story:

Does Scrabble’s C&D Spell the End of Scrabulous?

If you have any concerns that we might have misinterpreted your point or taken you out of context, please let me know and we'll make it right.

Best,

-sg

tfcotter said...

Doesn't Baker v. Seldin apply here? If you can't play the game "Scrabble" without using a substantially similar board, and if the game itself is not copyrightable, then how is the board protected at all? Is the argument that there is a thin copyright, limited to the colors of the colored squares?

Anonymous said...

What aspects of the Scrabble game are copyrighted? Board design? Game rules? Tiles? Tiles with alhabets? Tiles with alhabets and values (such as A has 1 point and X, 8 points)?
Thanks