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Idea vs. Expression – What is protected under copyright law?
by Zachary Strebeck on 01/03/14 06:22:00 pm   Featured Blogs

The following blog post, unless otherwise noted, was written by a member of Gamasutra’s community.
The thoughts and opinions expressed are those of the writer and not Gamasutra or its parent company.

 
The work must merely be an independent creation of the author, even if it is substantially similar to that of another author.

Under U.S. copyright law, “original works of authorship” are protected for a limited time. Copyright gives the author the exclusive right to copy, distribute, perform, display and create derivative works from this original work. Originality shouldn’t be confused with novelty, however; there is no requirement that the work has to be completely distinct from all others, like with patents. The work must merely be an independent creation of the author, even if it is substantially similar to that of another author.

The Idea/Expression Dichotomy:

One sticking point that often confuses non-lawyers is the question of what is protected by copyright and what isn’t. According to Section 102(b) of the Copyright Act of 1976, no “idea, procedure, process, system, method of operation, concept, principle, or discovery” is eligible for copyright protection. Copyright law generally protects the fixation of an idea in a “tangible medium of expression,” not the idea itself, or any processes or principles associated with it. The nuances of this distinction are sometimes difficult to grasp, and the reality of the situation is that the facts of each case have to be looked at individually. The concept works as more of a continuum than a dichotomy.

The Merger Doctrine:

One particular wrinkle in the question of idea versus expression is called the “Merger Doctrine.” This doctrine is stated best by the Ninth Circuit:

“When the “idea” and its expression are … inseparable, copying the “expression” will not be barred, since protecting the “expression” in such circumstances would confer a monopoly of the “idea” upon the copyright owner free of the conditions and limitations imposed by the patent law.”

Basically, when there is only one or a few ways of expressing an idea, idea and expression “merge” and even the expression is not protectible. One example of this in action is the use of a picture of cinnamon sticks on a box of cinnamon tea. It would not be a violation for another party to create such a box with a similar picture, but copying of exact details of the original may still violate the copyright.

Scene a faire:

Another concept related to the idea-expression dichotomy is “scene a faire,” which denies protection for things that “necessarily follow from a common theme.” This prevents content creators excluding others from using genre tropes, such as knights and dragons in a fantasy setting or robots and spaceships in a science fiction setting.

Conclusion:

Hopefully this post clears up the murky waters of idea versus expression a bit. A future post will look deeper into what is and is not protected by copyright in both video games and board games. In the meantime, if you have any questions or concerns about your own game development project, contact your local game attorney for a consultation.

Reposted from my blog at www.strebecklaw.com/blog.


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Comments


Rudy Gjurkovic
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Thank you for posting this Zach. This kind of information is always important to us developers. I have a question that just came up and I don't know if you can help or not...how does copyright work with naming conventions in the Games industry?

I recently came upon this seeing a game called "Ski Safari: Adventure Time" that just came out a couple of weeks ago. At first, I thought it might have been a sequel from the original game "Ski Safari" that was released maybe about a year ago. However, it was not - made by two different companies. The names are very close - is that even allowed, since they also deal with relatively the same concept? If so, what would prevent someone for making a game with the same naming convention of an already popular franchise, i.e. Angry Birds?

Or is there only protection if a name is copyrighted?

Thanks for the help.

Zachary Strebeck
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Hi Rudy. Copyright doesn't protect titles, so that's a no-go there. However, trademark law would prevent one company by trading on the brand of another and potentially causing consumer confusion (which is exactly what happened with you). Also, copyrights and trademarks exist without registration, but generally they must be registered in order to take legal action. Great question! I will have to expand on this in a future post.

Rudy Gjurkovic
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Hi Zach,

Thank you very much taking the time to answer my question. While it didn't happen to me personally, and I hope it never does, I saw this happen to other Devs, so I thought it would be important. Thank you for the clarification - it is definitely something I will keep an eye out for in the future.

Zachary Strebeck
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It is a great incentive to register your trademarks and copyrights!

Rudy Gjurkovic
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Hi Zach, Do you by chance know what trademarks and copyrights run price-wise? Or, do you have a link where I can get a better idea about that. Thank you very much.

Zachary Strebeck
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Check uspto.gov for TM and copyright.gov for copyright. Both have (complicated) fee schedules posted.

Rudy Gjurkovic
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Great. Thank you for the help!


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