At first glance, video games and computer code may not appear eligible for copyright protection. They seem like intangible subject matter that only consists of zeroes and ones. Further, people generally consider copyright as consisting of traditional subject matter such as paintings, sculptures, books, plays, etc. However, a careful analysis of the definition of a copyright results in a finding of copyrightable subject matter. Under 17 U.S.C. § 102, copyright subsists of original works of authorship fixed in any tangible medium of expression. This may look like legalese, but it’s actually broad language that is specifically intended to encompass a large range of contributions to the artistic world. A brief analysis of the eligibility of video games and computer code for copyright protection is explored below, as well as several nuances that arise under video game law.
The increasing popularity of mobile device games and applications gives rise to the initial question of whether or not these types of works are eligible for copyright protection. The first required element is originality. Originality is a very easy requirement to fulfill, as it only requires a minimal degree of creativity. Authors and creators of games and code generally meet this standard so long as they are implementing some artistic expression of their own. The second required element is a work of authorship. This requirement is also extremely easy to satisfy, and simply requires creation by the author. The third and final element in the definition requires fixation in a tangible medium of expression. Many people may dismiss games and code at this point, thinking that it cannot be fixed, and is therefore ineligible for protection. However, a single file on one computer may be sufficiently fixed for copyright protection. A game that exists on one computer, a flash drive, or a server may give rise to copyright protection. Because video games and computer code tend to fall under the definition of copyright law, registration with the U.S. Copyright Office is allowed, and protection is granted. Ultimately, this makes sense because the definition is extremely broad and inclusive.
However, there are several other bars before a copyright can be obtained or enforced. One of the earliest copyright cases in the field of video game law, Atari Inc. v. Amusement World, Inc., dealt with another essential consideration known as the idea/expression dichotomy. The idea/expression dichotomy on a basic level notes that, while expression of a certain idea is capable of copyright protection, the idea itself is not. In this case, Atari sued Amusement World, Inc. in an attempt to protect it’s copyright in Asteroids. Amusement World created a similar game called Meteors, and Atari asserted they held the exclusive copyright for that type of game. The court noted that Amusement World did indeed copy Atari’s idea, but because copyright law does not permit for protection of ideas, that Atarai’s claim was not actionable.
Another bar constitutes the filing and classification of the work with the U.S. Copyright Office. Depending on the type of game and what features predominate, the work may be classified as a literary work or a work of visual art. Literary works are usually books, scripts, or documents. However, in this case they also encompass computer code. In the alternative, a computer program may be classified as a work of visual art if it is mostly comprised of graphics and cut scenes. The relevant inquiry is generally which type is most appropriate to the predominant authorship. In short, the inquiry explores whether the game is predominantly code or predominantly visual art. In fact, the U.S. Copyright Office found the distinction so important that they issued a guide on how to register.
Although this article focused on copyright law, it’s essential to note that there are often other intellectual property rights involved. Games almost always include trademarks, many games make use of new and useful patents to run faster or play more smoothly, and some games may even incorporate trade secrets.
Ultimately, the world of video game law is multi-faceted and often extremely complex. Expect many updates and changes in the coming years, as video games are one of the fasting growing industries in the U.S.
SPECIAL THANK YOU TO REXFORD BRABSON FOR THIS POST, RECENT J.D. GRADUATE FROM USD LAW SCHOOL!!