Rules of the Game: Why Game Mechanics Are Free, Clones Are Hard to Stop, and Everything Around Them Is Protected
By Casey Scott McKay ·
A game is two things at once - a set of rules, which copyright does not protect, and an audiovisual work, which it protects well. This article explains where that line falls and why clone litigation is so difficult. It works the idea-expression dichotomy from Baker v Selden through the modern game cases, the merger and scenes a faire doctrines that strip away genre conventions, and what Tetris Holding actually held. It then covers what does protect a game: audiovisual expression, art and audio assets, characters, titles and marks, patents on systems, and contract. It closes with user-generated content, mods, streaming, and the live operations problems that arise after launch.
IP and Technology > Copyright | Article | Published 28 September 2024 - Updated 30 December 2024 | Casey Scott McKay - marksy.us
Summary. A game is two things at once — a set of rules, which copyright does not protect, and an audiovisual work, which it protects well. This article explains where that line falls and why clone litigation is so difficult. It works the idea-expression dichotomy from Baker v. Selden through the modern game cases, the merger and scenes a faire doctrines that strip away genre conventions, and what Tetris Holding actually held. It then covers what does protect a game: audiovisual expression, art and audio assets, characters, titles and marks, patents on systems, and contract. It closes with user-generated content, mods, streaming, and the live operations problems that arise after launch.
Keywords: game mechanics copyright · idea expression dichotomy · Baker v Selden · scenes a faire · Tetris Holding · game clones · audiovisual works · software copyright · Google v Oracle · game titles as trademarks · character protection · user generated content licences · mods and derivative works · streaming and let's plays · DMCA safe harbour · in-game economies · patents on gameplay systems · engine licensing · music and voice rights · live operations
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