1. Legal Aspects of Originality
UBC Law School : “Course 1337”
Jennifer L. Kelly, Fenwick & West LLP
October 29, 2014

2. Overview Who I am and how I got here
Kinds of IP claims that commonly arise in games
Copyright
Trademark
Trade dress
Right of publicity
Patent
Analysis of Potential Claims
Elements of claims; defenses
Recent cases

3. IP Claims That Arise: Copyright
Overview of U.S. Copyright Law
What copyright protects:
Expression of ideas, not the ideas themselves
In games: overall look and feel; layout; game sequencing and progression; instructions/text (verbatim); storyline (not plot); developed characters; code; sounds; music
What it does not protect:
In games: general concepts, themes and genres; scenes a faire; method of play; stock characters; real life elements (e.g., sports moves); other elements “driven by genre”; functional aspects; content not original to the author

4. Game Mechanics Are they protected? Answer: (a) Yes (b) No
(c) Depends on how you define the term
(d) We don’t know

5. IP Claims That Arise: Copyright (cont.)
Elements of claim for copyright infringement
Ownership of a registered work + copying of protectable elements
Defenses: Independent creation, not original, not substantially similar
Relevant Examples:
Atari v. North American (Pac-Man vs. K.C. Munchkin)
Capcom v. MKR (Dead Rising v. Dawn of the Dead)
Zynga v. Vostu (various)
Tetris v. Xio Interactive (Tetris/Mino)
Spry Fox v. 6Waves (Triple Town/Yeti Town)
Electronic Arts v. Zynga (Sims Social vs. The Ville)
King v. 6Waves (Farm Heroes/Farm Epic; Pet Rescue/Treasure Epic)

6. K.C. Munchkin & Pac-Man

7. Dead Rising & Dawn of the Dead

8. Cityville & MegaCity

9. Tetris and Mino

10. Triple Town and Yeti Town

11. Sims Social & The Ville

12. Farm Heroes Saga and Farm Epic

13. Pet Rescue Saga and Treasure Epic

14. Analysis of Potential Claims: Copyright
Step 1: Identify game’s genre and others that fall into it
Ask developers what they were inspired by, other games they were/are aware of; do your own independent research
Make a list of all games and common features
Step 2: Identify unprotectable aspects of such games
What is common to, driven by genre?
Other aspects that are not protectable as a matter of law
Step 3: Compare the games
Game to Game comparison
Play the games if possible!
Step 4: For any similarities of protected expression, drill down:
Why was a particular feature chosen?
Can changes be made?