INTRODUCTION I. OVERVIEW OF THE VIDEO GAME INDUSTRY A. Mobile Games Industry B. Cloning in the Mobile Gaming Space II. COPYRIGHT DOCTRINE AND VIDEO GAMES A. Copyrightable Subject Matter B. Idea-Expression Dichotomy in Video Games C. Limiting Doctrines D. Copyright Infringement Tests E. Significant Case Law III. SHIFTS IN CASE LAW A. Tetris Holding, LLC v. Xio Interactive, Inc B. Spry Fox LLC v. LOLApps Inc C. DaVinci Editrice S.R.L. v. ZiKo Games, LLC D. Summary and Conclusions IV. THREES: A CASE STUDY IN CLONING A. Video Game Copyright, 1981-2012 B. Video Game Copyright After Tetris Holding, Spry Fox, and DaVinci V. THE ROLE OF VIDEO GAME DEVELOPERS CONCLUSION INTRODUCTION
Video games, like other works of creative and artistic expression, are eligible for protection under U.S. copyright law. (1) However, current applications of copyright law to video games provide only thin barriers to copying, permitting competitors to mimic, or "clone," the fundamental mechanics, design, and often story elements of a game in order to release a competing product. The scant protection afforded to video games applies equally to other game genres, such as board games, and is rooted in the copyright principle that only elements of original expression may be protected, while ideas--such as game rules and mechanics--must be allowed to propagate freely. (2) Because ideas and expression are uniquely intertwined in games of all kinds, however, courts have struggled to set clear doctrinal lines and strike a balance between protecting novel creations from wholesale copying, while not stifling further game innovation.
In 2012, two district court cases, Tetris Holding, LLC v. Xio Interactive, Inc. (3) and Spry Fox LLC v. LOLApps Inc., (4) attempted to revise the copyright regime as it applies to games. In 2014, another district court in DaVinci Editrice S.R.L. v. ZiKo Games, LLC consolidated these cases and further developed a copyright doctrine that could fundamentally alter how courts treat "cloned" games going forward. (5) Cloning has increased over the past decade, as easier game development for mobile devices like smartphones has enabled some video game developers, who would rather clone existing games than devise original ones, to thrive in the video game industry. (6) As a result, small, independent developers wishing to introduce new game mechanics and other innovations to the mobile gaming space are regularly victimized by game cloners who mimic and essentially steal their games, players, and profits. (7) Meanwhile, consumers, who may not be able to differentiate between original games and convincing, deceptively titled clones, may fall victim to cloning practices. In short, even as thin copyright encourages innovation in video games and promotes the development of new, original products, cloning discourages innovation and deceives and harms consumers to a greater extent than ever before. Unfortunately, the current video game copyright regime enables this paradoxical state of affairs.
In this Comment, I argue that obtaining and sustaining optimal video game innovation and creativity requires two complementary advancements by the two main actors in the video game copyright space--the U.S. courts and the video game developers themselves. U.S. courts should maintain and build upon recent precedent in the Tetris Holding, Spry Fox, and DaVinci cases and recognize a greater sphere of protectability for game mechanics that is sensitive to copied elements. As I will show, the approaches in Tetris Holding, Spry Fox, and DaVinci strike a functional balance between the competing needs of protecting copyrighted expression and enabling further innovation. The cases also send a signal to clone developers that "cloning" may no longer be shielded from liability. (8) Following these cases, U.S. courts can "rebalance" copyright for video games by revising how the idea-expression dichotomy, the merger doctrine, and the scenes a faire doctrine apply to video games and by expanding the sphere of protectable expression in video games. To that end, independent game developers who create new premises and mechanics should take conscious steps to infuse their software with unique expression to make their works more protectable and fend off clones. Otherwise, they must adopt marketing practices that enable them to more quickly monetize games that will inevitably be cloned. Together, these two sets of changes can foster greater protection for innovative game software and a richer marketplace for consumers, while not overextending the reach of copyright to threaten the iterative innovation that underpins video game development.
In Part I, I present an overview of the video game industry as a whole, with a focus on the increasingly important role mobile gaming plays. In Part II, I discuss the basic elements of copyright doctrine and how case law as applied to video games has evolved over time and shaped the industry. In Part III, I address the potential shifts in case law indicated by the Tetris Holding, Spry Fox, and DaVinci cases. In Part IV, I discuss a recent example of cloning in mobile gaming, and how a modified copyright regime could have led to a more preferable outcome. Finally, in Part V, I suggest steps for video game developers to take in game development to better protect themselves.
OVERVIEW OF THE VIDEO GAME INDUSTRY
Video games are a significant economic and cultural force today. Launches of new entries in major video game franchises, like the Call of Duty line of games from Activision Blizzard, garner widespread media attention and handily exceed the revenue of blockbuster Hollywood film runs. (9) In 2015, video game publishers purchased a recordbreaking number of advertisements during the Super Bowl. (10) An entirely separate industry has developed out of watching other people play video games. The website Twitch.tv allows gamers to film themselves playing and stream videos to the site's 50 million unique monthly visitors. (11) In 2014, Amazon edged out Google to purchase Twitch for $970 million. (12) Twitch, in turn, aided the rise of the new phenomenon of competitive gaming or "eSports," in which video game players compete against each other, in front of massive arena crowds and even larger online audiences, for millions of dollars in prize money. (13) Competitive gaming has become so popular, and its star players so sought after, that the United States has begun to offer visas to competitive gamers as "internationally recognized athletes," the same special immigrant status accorded to athletes like David Beckham. (14) This widespread cultural embrace of gaming would have been unthinkable only a few years ago. (15)
Mobile Games Industry
Within the video game industry as a whole, mobile gaming--defined as gaming that takes place on smartphones and tablets (16)--represents an especially "disruptive and dynamic" (17) sector and arguably "the largest and fastest-growing area of interactive entertainment." (18) In addition to serving as cellphones, internet browsers, and music devices, smartphones and tablets that run on Apple iOS and Google Android software function as video game platforms, with instant access to virtual game storefronts through their respective "app" stores. (19) Within the United States alone, an estimated 126 million people now use their smartphones for gaming; by 2016, an estimated 144 million people--eight out often smartphone owners--will do so. (20) These adoption rates explain the significant growth in gaming revenue for iOS and Android games. (21) Many mobile game players are flocking to offerings from major mobile developers, such as King Digital Entertainment, the developer of the Candy Crush games, which became a public company in 2014 on the back of Candy Crush's success, (22) and Supercell Oy, the creators of Clash of Clans. (23) Even the three video games advertised during the 2015 Super Bowl are all exclusively available on mobile platforms. (24) While mobile games such as these are often free to download, they generate much of their revenue through small purchases that users make within the apps, called "microtransactions," which allow users to buy bonuses and advantages once they have already started playing. (26) This is also referred to as the "freemium" business model, a portmanteau of "free" and "premium." (26) The "freemium" model has proven extremely lucrative, catapulting a handful of game developers to multibillion dollar valuations. (27) 2014 marked the first time that a mobile game earned $1 billion in revenue, and ultimately three games--Candy Crush Saga, Clash of Clans, and Puzzle & Dragons--passed that impressive threshold. (28)
However, the more intriguing story within the mobile games space is the increasing prominence of independent, or "indie," game developers and their offerings. The term "indie" refers to developers, often individuals or small studios, who self-publish their games rather than going through a major video game publisher like Electronic Arts Inc. (EA) or Activision Blizzard, Inc. (29) As game development becomes easier for mobile platforms, barriers to entry for small prospective video game developers decrease and allow new game ideas and mechanics to enter the marketplace quickly. (30) Mobile game development can be done at lower costs than development on traditional game platforms, namely consoles (e.g., Xbox One, PlayStation 4, and Wii U) and personal computers (PCs). (31)
Given the low cost of mobile game development and the massive install base of millions of smartphone owners who use their devices for gaming, the "various app stores, particularly Google Play and the Apple App Store, have become flooded with an enormous selection of [mobile game] titles." (32) In March 2016, a staggering 522,690 mobile games were available on the Apple App Store alone, out of a total of 2.27 million apps. (33) In 2014, an average of 500 new mobile game apps were...