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Legal Aspects of Originality
UBC Law School : “Course 1337” Jennifer L. Kelly, Fenwick & West LLP October 29, 2014
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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
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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
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Game Mechanics Are they protected? Answer: (a) Yes (b) No
(c) Depends on how you define the term (d) We don’t know
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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)
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K.C. Munchkin & Pac-Man
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Dead Rising & Dawn of the Dead
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Cityville & MegaCity
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Tetris and Mino
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Triple Town and Yeti Town
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Sims Social & The Ville
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Farm Heroes Saga and Farm Epic
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Pet Rescue Saga and Treasure Epic
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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?
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