Within four months, Atari lost one clone case and won another. In November 1981 a federal judge in Maryland refused to stop Meteors, a coin-op that the court accepted was based on Atari’s Asteroids. In March 1982 an appeal court in Chicago ordered Philips to stop selling K.C. Munchkin, a maze game for its Odyssey² console that Atari said copied Pac-Man. The two rulings were not a contradiction. Together they set out the rule that game makers have worked under ever since: anyone may copy the idea of a game and its rules, but not the way a particular game expresses them.
Fast facts
- The principle: copyright covers expression, not ideas. Code, art, characters, music and the particular look of a game can be protected; rules and the idea of a game cannot.
- Where the line falls: similarities that follow from the idea itself (a karate game needs kicks and a referee; a space game needs rocks and a ship) do not count against a copy.
- United States: Atari v. Amusement World (1981), Atari v. North American Philips (1982), Data East v. Epyx (1988), Tetris Holding v. Xio Interactive (2012).
- Britain: Nova Productions v. Mazooma Games (Court of Appeal, 2007).
- Other protection: names, logos and packaging fall under trade mark and trade dress law, and copying a program’s code to understand it is a separate question (see Sony v. Connectix).
Asteroids and Meteors (1981)
Atari sued Amusement World over Meteors, and the case came before Judge Joseph H. Young of the US District Court in Maryland. He accepted that Meteors was based on Asteroids, and found that it did not infringe. “Copyright protection is available only for expression of ideas, not for ideas themselves,” he wrote. “There are certain forms of expression that one must necessarily use in designing a video game in which a player fights his way through space rocks and enemy spaceships.” Similarities of that kind, he held, “do not constitute copyright infringement, because they are part of plaintiff’s idea.” On 27 November 1981 he refused Atari’s request for an injunction and found for the defendants.
Pac-Man and K.C. Munchkin (1982)
Atari had bought the home rights to Pac-Man, and Electronic Games reported in May 1982 that the purchase had “touched off several extremely complex court cases” against rival maze games, among them Philips’s K.C. Munchkin. A district court refused to stop Munchkin. On 2 March 1982 the Court of Appeals for the Seventh Circuit reversed it and ordered a preliminary injunction.
The appeal court agreed that a maze-chase game as such could not be owned: “copyright protection does not extend to games as such.” What made Pac-Man Atari’s was how it dressed that idea. “The expression of the central figure as a ‘gobbler’ and the pursuit figures as ‘ghost monsters’ distinguishes PAC-MAN from conceptually similar video games,” the court wrote, and Philips had “not only adopted the same basic characters but also portrayed them in a manner which made K.C. Munchkin appear substantially similar to PAC-MAN.” Electronic Games explained it to a reader in January 1983: Atari won “because the court found the physical resemblance between K.C. and the Gobbler too great”. The same column described a business “bogged down in a swamp of legal claims and counterclaims”.
Karate games (1986–1988)
The same line decided a case over two karate games. Data East sued Epyx over World Karate Championship, the American release of System 3’s International Karate, claiming it copied the arcade game Karate Champ. The district court agreed and ordered a recall. On 30 November 1988 the Ninth Circuit reversed it. Everything the games shared, it held, came from karate itself or from the limits of the Commodore 64: “karate is not susceptible of a wholly fanciful presentation”, and “a discerning 17.5 year-old boy could not regard the works as substantially similar.” Where the idea and its expression could not be separated, protecting the expression “would confer a monopoly of the idea upon the copyright owner”. Retro Gamer later wrote that the case “set the legal precedent for creating martial arts based games”.
Street Fighter II and Fighter’s History (1994)
Six years later Data East was on the other side. Its Fighter’s History was, in Edge’s words in 1994, a “controversial SFII clone”, and Capcom sued, claiming it copied Street Fighter II. Capcom lost. Nintendo Magazine System, which had no time for the game, reported at the end of 1994 that “unfortunately Data East won” and had been allowed to release a sequel, Fighter’s History Dynamite. Retro Gamer put the result down to the earlier case: “Due to the case Data East had brought against Epyx, the court was forced to rule in their favour.”
Britain: Nova v. Mazooma (2007)
British law reached the same place by a different route. Nova Productions, maker of a pool-based computer game called Pocket Money, sued the makers of two other pool games, Jackpot Pool and Trick Shot. Nothing had been taken “in terms of program code or program architecture”, the Court of Appeal found on 14 March 2007; what had been taken was “a combination of a limited number of generalised ideas”. Nor could a game’s run of screens be treated as one picture: “A series of drawings is a series of graphic works, not a single graphic work in itself.” Lord Justice Jacob explained why the law stopped there: “If protection for such general ideas as are relied on here were conferred by the law, copyright would become an instrument of oppression rather than the incentive for creation which it is intended to be.”
British shops had shown what that freedom looked like long before. The first issue of CRASH, in February 1984, reviewed a whole shelf of unofficial Frogger games for the Spectrum, from Ocean’s Road Frog to DK’Tronics’ Road Toad.
Tetris and Mino (2012)
The idea–expression rule did not make every clone safe. Xio Interactive’s Mino, a mobile game, admitted copying Tetris: “Xio acknowledges that Tetris Holding owns the registered copyrights to the various iterations of Tetris and further admits that Xio copied Tetris, purposefully and deliberately.” Xio argued that it had “meticulously copied only non-protected elements, in particular the rules and functionality of the game”. Judge Freda Wolfson of the US District Court in New Jersey accepted the premise, “The rules of the game are perforce in the public domain as well as the game itself”, but not the conclusion. Quoting an earlier appeal court, she held that the expression in a video game lies in “the entire effect of the game as it appears and sounds”. Set side by side, she wrote, “a common user could not decipher between the two games”: the similarity was “akin to literal copying”. On 30 May 2012 she granted Tetris Holding summary judgment on both copyright and trade dress.
The pattern of the cases is consistent. A game that takes the idea and draws its own world, as Meteors, World Karate Championship and Fighter’s History did, can survive. One that takes the characters, as K.C. Munchkin was found to, or the whole look, as Mino did, cannot.
Sources
- Atari, Inc. v. Amusement World, Inc., 547 F. Supp. 222 (D. Md. 1981), Judge Joseph H. Young, 27 November 1981 (court opinion, via the Caselaw Access Project). https://static.case.law/f-supp/547/cases/0222-01.json
- Atari, Inc. v. North American Philips Consumer Electronics Corp., 672 F.2d 607 (7th Cir. 1982), 2 March 1982 (court opinion, via the Caselaw Access Project). https://static.case.law/f2d/672/cases/0607-01.json
- Electronic Games vol. 1 no. 3, May 1982: K.C. Munchkin and Atari’s Pac-Man court cases. Electronic Games vol. 1 no. 11, January 1983, readers’ questions: the outcome of the Munchkin case; “a swamp of legal claims and counterclaims”.
- Data East USA, Inc. v. Epyx, Inc., 862 F.2d 204 (9th Cir. 1988), 30 November 1988 (court opinion, via the Caselaw Access Project). https://static.case.law/f2d/862/cases/0204-01.json
- Retro Gamer issue 22, 2005, pp. 56–57: “The Style of No Style” (Data East v. Epyx) and the Capcom case.
- Edge issue 9, June 1994: Fighter’s History as Data East’s “controversial SFII clone”.
- Nintendo Magazine System issue 27, December 1994, news: Data East’s win over Capcom and Fighter’s History Dynamite.
- Nova Productions Ltd v. Mazooma Games Ltd [2007] EWCA Civ 219, Court of Appeal, 14 March 2007 (judgment, via the National Archives). https://caselaw.nationalarchives.gov.uk/ewca/civ/2007/219
- CRASH issue 1, February 1984, pp. 53–54: the Spectrum Frogger versions (see the Frogger entry).
- Tetris Holding, LLC v. Xio Interactive, Inc., 863 F. Supp. 2d 394 (D.N.J. 2012), Judge Freda L. Wolfson, 30 May 2012 (court opinion, via the Caselaw Access Project). https://static.case.law/f-supp-2d/863/cases/0394-01.json