Thoughts on the Scrabulous Lawsuit, Part IV: A Theory of Copyright and Games

This is Part IV of my 3-part series on Hasbro's suit against the creators of Scrabulous. See Part I ("The Complaint"), Part II ("The Mystery of Alfred Mosher Butts"), and Part III ("The Question of the Copyrightability of Games").

In my last post, I asked what the purpose of the traditional blackletter rule that "games are not copyrightable" is. That's the rule that has Hasbro pointing to registrations in the game board, the rules, the player's dictionary -- everywhere except Scrabble itself. One common response is that the traditional rule reflects the exclusions from copyrightability contained in § 102(b) of the Copyright Act  -- four or five of which delineate the boundary between patents and copyrights. In Part III, I questioned that common assumption; it is not apparent to me that games per se fall within any of the exclusions, unless the exclusions are made so broad that clearly copyrightable works such as music and plays fall within the exception. (I've received some fascinating feedback on that issue on and offline.)

Indeed, I ended by noting the various similarities between games, music, and plays. All are "played" by "players" following the instructions -- "rules," if you will -- they are given. What's the justification for a rule that says that one of these forms of entertainment is not copyrightable, but the other two are? The answer is to move away from the exclusions of § 102(b) and focus instead on the scope of copyright in § 102(a). Games are not copyrightable because the nature of the transmission of information from creator to audience is importantly different compared to music and plays. Copyright does not reach the core of the gaming experience in the same way it reaches the core of the musical or play-watching experience.

There is creative expression (itself a notoriously difficult phrase) in games, music, and plays, and all three media communicate that expression to their intended audiences. The difference between the three, however, is the connection between the expression that is contained (or "fixed," as copyright lawyers say) in the work and the intellectual experience of the audience. Music and plays encode and transmit a protected aesthetic or intellectual experience from author to audience. Games, however, do not transmit the game-playing experience; they merely create the conditions for it to occur. The game-playing experience comes out of the interaction between the players (who are also the audience) and the game. That experience is therefore not transmitted through the medium of the game materials; it emerges in game play. In other words, while the fixed expression in sheet music and scripts for plays "contains" the music or the play, the fixed expression in a game -- the rules, the board, etc. -- allows too much flexibility to actually "contain" any particular instance of a game.

This is actually the opposite of the problem with materials excluded from copyright under § 102(b). Whereas such materials are excluded from copyright because, in essence, they are too detailed about the activities of the users, games are excluded from copyright because they are not detailed enough. This is true even though sheet music, scripts, and other works allow considerable flexibility in performance, as should be apparent to anyone who's ever seen different productions of Hamlet, or compared Leonard Bernstein's positively lethargic version of "Lacrymosa" from Mozart's Requiem to the more normal pacing of other versions, or compared Cream's "Sunshine of Your Love" to Jimi Hendrix's. Nevertheless the aesthetic or intellectual experience in each instance is substantially similar; Bernstein's "Lacrymosa" is still "Lacrymosa."

That's not the case with games. One game of Scrabble is not the same as a different game of Scrabble. There are similarities of course, but they occur at a higher level of abstraction -- in the same way "Lacrymosa" is similar to "Dies Irae." Mere similarity by itself is not enough unless it is similarity in copyrightable expression. Frank Mahovlich is similar to Pete Mahovlich, but that doesn't make Frank Mahovlich infringing. The only similarity in the game-creator's expression between two game sessions is in the elements of the game that were used -- the rules sheet, the game board, the pieces, the cards, etc. In other words, the game's constituent elements are copyrightable, but the game is not.

The difference between games and music and plays is most evident in how they are usually experienced. Music and plays are normally communications through the "players" to an audience of other people. There are exceptions, of course; someone may purchase sheet music purely to play at home. In that case it would be a private performance and beyond the scope of the copyright. But the basis for the protection of music and plays -- and books, and films, and art, and all the rest -- is that the author is given the exclusive right to communicate those expressions to the public, through reproduction, adaptation, public distribution, public performance, and public display. With games, the players are the audience itself; there is no further communication of the game-playing experience. (You can watch a game being played, but watching a game is not playing the game.) Therefore, the communication of the author's expression happens further up the chain -- at the level of the game publisher. A game session is not a "performance" of the game, public or private; it is outside the scope of copyright altogether. That is the purpose of the blackletter rule.

I may do one more post in my increasingly inaccurately named 3-part series, on how this all applies to video games.