Interactivity, Immersion and Innovation: Can Videogames be Adequately Protected by Copyright Law?

Interactivity, Immersion and Innovation: Can Videogames be Adequately Protected by Copyright Law?

Table of Contents:


Part 1: The Law of Videogames

Videogames, Originality, Subject Matter and Authorship

Videogames and The Idea/ Expression Dichotomy

The Attenuation of the Role of Copyright

Videogames and Patents                                                                      

Part 2: What is a Videogame?

What isn’t a Videogame

What are Videogames to the Players?

Videogames as Games and Play: Ludus and Paidea

The Core of a Videogame

Part 3: Reform Proposals

Weakening Patents and Strengthening Copyright

Protecting Gameplay

Playing the Game





In the same way that the printing press and cinema have enabled new avenues for creativity and storytelling, computers can function as enablers of videogames, allowing us to engage and interact with what could previously only reach the audience through purely audiovisual means. Due to the relative nascence of the medium, many questions remain unanswered, such as what exactly a videogame is, how they function, and the effect they have on players and society.

Such uncertainty regarding the subject matter will undoubtedly lead to uncertainty in the legislation of videogames. There are many topical and unresolved issues in videogame law, from the controversy they have caused due to their often violent content in the field of censorship, the extent of a developer’s duty of care for the consumer’s health and safety, the increasingly widespread problems of emulation and piracy, or issues regarding Anti-Trust and Competition Law.

This dissertation will focus on the actual creative content of videogames, and will try to assess whether the legal protection afforded to a game developer’s creative endeavours is sufficient, too wide or simply misguided. In doing so the dissertation will provide a detailed analysis and explanation of the semiotics of videogames, their individuality as a medium, and how the law must recognise this individuality.

This dissertation will be split into thee primary sections. The first section will explain the protection that videogame developers receive through copyright and patent law. In doing so I will argue that copyright is ineffective in providing adequate protection for certain developers, due to an overly clinical legal conception of videogames within the courts which fails to take into account the combined effect of the interactive and the audiovisual components of a videogame. In contrast, I will argue that patents have been greatly overused in videogame law, leading to a state of affairs that could cripple a developer’s creative freedom, especially if that developer does not have the financial capacity to pay for a license. This section will address the law primarily in the United Kingdom, European Union, Canada and the United States. However the majority of controversial and significant cases, those that have shaped the legal landscape regarding videogames, originate from the U.S., thus particular attention will be given to this jurisdiction.

Once I have explained the current law on videogames and presented my criticisms of it, I will then focus on what needs to be done in order to give videogames the legal protection they deserve. However, in order to do this a more thorough understanding of the subject matter is required, thus the second section of this dissertation will focus on what exactly is a videogame.

The final part of the dissertation, through the benefit of the greater understanding of the medium gained from the previous section, will thus propose reforms for the current law of videogames. These reform proposals will deal with universal aspects of copyright law, such as the idea/ expression dichotomy, and will thus be jurisdictionally neutral. My ultimate aim is to create a general set of guidelines as to how videogames should be protected.

Part 1: The Law of Videogames

Videogames, Originality, Subject Matter and Authorship

Atari Games Corp v. Oman  is a fundamental case that provides a perfect entry into understanding the development of copyright law in videogames. The facts are that Atari wished to register a very simplistic videogame called ‘Breakout’ as an audiovisual work. In Breakout players were in control of a paddle that would be used to hit a ball that would ricochet against a wall composed of tiles. As the player hit the ball against the tiles they would change colour and eventually disappear, and the player would advance to the next level once the wall was no longer there. The speed of the ball and the size of the paddle would change during play, and the physics were not based on real life, but instead on the angle at which the ball hits the paddle.

The U.S. Copyright Office repeatedly denied copyright protection for Breakout, arguing that it lacked the spark of creativity that was necessary, and found “no original authorship in either the selection or arrangement of the images or their components.” However the court in finding for Atari argued that the threshold of creativity for copyright registration was “extremely low”, (according to the Feist test) and that even a ‘slight amount’ would be sufficient. The court continued to say that even if individual graphical elements were not copyrightable through the crude, simplistic visual representations of a ball and paddle seen in Breakout, the requisite level of creativity was certainly met by the accompanying sound effects and the general “flow” of the game.

Similarly in Stern Electronics v. Kaufman, a company that was selling knockoffs of the game ‘Scramble’ argued that the plaintiffs were not entitled to prevent them from doing so because there could be no intellectual property in a game. The defendants had two primary arguments:

The first was that Scramble lacked fixation, since each play of the game essentially constituted an original work due to the player’s participation. The United States Court of Appeal for the Second Circuit completely rejected this argument. Whilst they conceded that there was no doubt that the entire sequence of all the sights and sounds of the game would be different every time the game was played, nevertheless many aspects of the audiovisual sequence would also remain constant with each playthrough.

The defendants then tried attacking from the opposite flank. They argued that the audiovisual display carried no originality within itself because a previously created computer program generated all of the reappearing features. This argument was also rejected. The court argued that the audiovisual components of Scramble were clearly copyrightable even if the underlying written program was of an independent existence, and was also in itself eligible for copyright. The court made analogous comparisons to how an audiotape embodies both a musical composition and a sound recording, neither of which undermine the copyright of the other.

A similar decision was also held in Midway v. Arctic. Here the courts considered claims of copyright infringement against two manufacturers of printed circuit boards. The first board produced a game that was virtually identical to ‘Pacman’, and the second sped up of the rate of play of the game ‘Galaxian’ without the developer’s consent. The question at hand was whether videogames could be defined as audiovisual works according to the definition provided by s.101 of the U.S. 1976 Copyright Act, which defines them as:

“works that consist of a series of related images which are intrinsically intended to be shown by the use of machines…together with accompanying sound, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied’’.

It was not immediately obvious to the court whether videogames could fall within this definition. The most contentious part of the statute was the phrase a “series of related images”, which might be construed to refer to images that appear only in a fixed sequence, which may not necessarily be the case with a videogame. However, they held that a videogame could fall under a broader definition of an audiovisual work as set out in cases such as WGN Continental Broadcasting v. United Video, where a news program and a thematically related textual display (‘teletext’) transmitted on the same television signal, but broadcast on different television channels, were held to constitute a single audiovisual work. In the courts view, the legislative history of the Copyright Act 1976 suggested that Congress probably wanted the provisions to be interpreted broadly and flexibly, so as to cover new technologies without the constant need to update the act.

The courts also saw a second difficulty in classifying videogames as audiovisual works, and that was the role of the player. Since a player could vary the order in which the images appeared on the screen, the question was whether the creative effort in playing a videogame was analogous to writing or painting, thereby making each “performance” of a videogame the work of the player and not the developer. Ultimately however it was the court’s view that since the player cannot create any sequence of images they wanted from the software, and were instead limited to the sequences that the game allows them to choose, that ultimately creative control of the audiovisual work lay in the hands of the developer. The analogy of the player to a writer or painter was flawed, “since the videogame in effect writes the sentences and paints the painting for them; [the player] merely chooses one of the sentences in its memory, [or] one of the paintings stored in its collection”.

Videogames are inherently a creative medium and cases such as Oman, Kaufmann and Arctic were certainly groundbreaking in that they managed to bring videogames under the umbrella of copyright law protection, the type of protection that is most suited and indeed designed for creative and original works. However, to pigeonhole a videogame just as an audiovisual work is to take an overly narrow view of what constitutes a videogame. The courts would soon need to tackle the interactive element of the game, and in doing so it would need to view videogames as distinct from a mere audiovisual work if they wished to do them justice. I will now analyse cases that go to the heart of the idea/ expression dichotomy as it relates to videogames.

Videogames and The Idea/ Expression Dichotomy

In the case of Atari v. Amusement World, Atari claimed that the defendant’s game ‘Meteors’ was substantially similar to their own game ‘Asteroids’, and thus constituted copyright infringement. In both games, the player controlled a spaceship, which was represented by a small symbol in the middle of the screen. The player would be awarded points for destroying various sized rocks that entered the screen, and would occasionally be confronted by enemy spaceships that attempted to shoot the player’s spaceship. Both games shared a similar control system that comprised of four buttons.

The defendant’s counter argument was that Atari was claiming copyright in an idea, rather than the expression of one, and was thus attempting to monopolise the idea of a videogame in which a player fights his way through asteroids and spaceships. The court agreed that there is no copyright in a mere idea, and that if Amusement World could prove that they had merely adopted a different expression of this idea then they had not infringed Atari’s copyright. In assessing whether Meteors was similar enough to Asteroids in its expression, the court applied the “ordinary observer” test to determine whether there was “substantial similarity” between the two works.

The court held that given the “technical demands of the medium of the video game” at the time, it was inevitable that on an audiovisual basis the two games would be fairly similar. The court thus focused on the overall “feel” of the two games. In their dictum the court does not define exactly what is meant by the “feel” of a game, taking an instinctive and natural approach that encompassed both the audiovisual and interactive components of a videogame. Thus the court considered how in Meteors the symbols were more realistic, and how at the beginning of the game the player would view a short cinematic of the spaceship blasting from Earth, which are clearly minor audiovisual differences. However of more significance the court also considered how the two games actually played, noting how the player’s spaceship handled and fired slightly differently in Meteors. It was observed that Meteors was also faster than Asteroids and thus considerably more difficult.

The court thus concluded that whilst it was fairly clear that the defendants had rather bluntly taken the plaintiff’s idea, copyright law did not prevent this, since copyright protection is only available for the expression of ideas, not the ideas themselves. On this basis, it was held that Meteors was not substantially similar to Asteroids.

Amusement World’s relevance can be hard to assess today. The court downplayed the two games visual similarity (despite the symbols in Meteors being more “realistic”) due to the technical limitations of videogames at the time. If two games were to look as similar today, the defendant would undoubtedly be faced with a very strong case for copyright infringement. In my view the case was definitely right to factor the two games interactive element as a primary factor in their determination, however yet again the similarities, for example in the control scheme, were glazed over in light of the simple technology available at the time. It is thus understandable that in the early days of videogames, the courts would set a lower threshold of originality for confusingly similar games.

The case of Atari Inc. v. North American Phillips Consumer Electronics Corp. however suggests that there may be a higher standard of originality as regards to videogames. This case concerned the games ‘Pacman’, and what the plaintiffs argued to be in breach of their copyright, ‘K.C. Munchkin’. In both games players would direct a “gobbler” through a maze consuming dots and avoiding capture from ghosts. By gobbling a power capsule, the player can reverse the role between himself and the ghosts for a short period of time. The ultimate goal of the game was to accumulate as many points as possible by gobbling dots and ghosts.

To reiterate; in Amusement World, it was held that if there was a sufficient difference in the visual and sound details of the games then that would be adequate for a finding of non-infringement, since that would entail a different expression of the same idea. However due to the limitations of the technology, the court decided to focus instead on the “feel” of the two titles, and on this basis held that there was no infringement, however in Phillips they seemed to adopt a slightly different approach. The court conceded that the games were not “virtually identical”, for example the central character in K.C. Munchkin was “spookier” than Pacman, in the same way that Meteors was more “realistic” than Asteroids, and the maze in K.C. Munchkin had one dead-end passageway which added an element of risk and strategy, thus slightly changing the gameplay in the same way that Meteors played slightly differently due to the tweaked handling and increased speed. In the end however the court focused on how the unique premise, such as the abstract notion of role reversal, and characters, such as a “gobbler”, in Pacman were “wholly fanciful creations” without any reference to real world situations or those commonly found in other sources of fiction. This can be compared to the more generic imagery used in Asteroids of spacecrafts and aliens, which is fairly common in popular media such as Sci-Fi movies. The court therefore granted Atari a preliminary injunction, holding that K.C. Munchkin had captured the “total concept and feel” and was thus substantially similar to Pacman.

The Attenuation of the Role of Copyright

In 1984 Data East released a game called ‘Karate Champ’. Though it was not the first multiplayer fighting game, the first two player fighting game was ‘Warrior’, released by Cinematronics in 1979, it was the first multiplayer martial arts tournament game, and was the progenitor of a very lucrative genre throughout the 90s. The game’s notable features for the time were its realistic portrayal of the martial arts with large, relatively human looking characters.

In 1985 a British company named System III released a similar game titled ‘International Karate’, which Epyx licensed and released as ‘World Karate Championship’ in the US. In 1986 Data East took Epyx to court, claiming that the “overall appearance, compilation, and sequence of the audio visual display” of their game had been copied. The case went before Judge Ingram of the District Court, who found several areas of similarity that supported Data East’s claim. For example both games featured exactly fourteen moves, and of these moves half were exactly the same. There were also other similarities such as both games having single and multiplayer options, both featured fighters in either red or white gis, in both games the referee states exactly the same comments in cartoon-style speech bubbles and both featured ‘bonus rounds’ where the player earned extra points through activities such as breaking bricks.

The court recognised that since both games depicted karate tournaments, a real world activity, a degree of similarity and indeed duplication was inevitable. Judge Ingram also noted that both games were made for the Commodore, and similarly to Amusement World, recognised that there would inevitably be a degree of resemblance due to the technological restraints of the hardware and the fact that they utilised the same controller. However in spite of this, Judge Ingram found that there were simply too many similarities to ignore. The District Court thus found that aside from some minor graphical particularities, such as the referee’s appearance, the two games were qualitatively identical and ordered Epyx to recall World Karate Championship and International Karate.

However Judge Trott of the Court of Appeal overturned this decision. He listed all the similarities between the two games as merely being inherent to the sport of Karate and, according to Trott, “Karate is not susceptible of a wholly fanciful presentation”. Trott thus argued that the only areas that could be protected by copyright were those in which Data East had made unique creative contributions, namely the scoreboard and the background scenes. These were amongst the few areas in which Karate Champ and World Karate Championship were actually different, and thus it was held that Data East’s copyright had not been infringed and reversed Ingram’s decision.

This case effectively neutered copyright’s role in videogame law, and it is the author’s opinion that the decision is misguided and simply wrong. Karate may be a real world activity, but it is certainly capable of being presented “fancifully” within the context of a videogame. There are conceivably an enormous number of ways of transcribing martial arts manoeuvres to a joystick, even one as basic as that on the Commodore, yet both games featured essentially identical movelists, controls and overall gameplay. It is this “gameplay”, a term that will be explored in detail in section 2 of this dissertation, that lies at the heart of a videogame, and it was this element that was all but ignored in Judge Trott’s decision. In finding for non-infringement, the originality; the skill, labour and effort that went into creating a virtual representation of a real world activity that was not only workable, but also enjoyable to actually play, was all but ignored.

This case effectively opened the floodgates for creatively bankrupt imitations and knock offs, which offered no diversity or advancement to their respective genre of videogame, and simply leeched off the success of excellent games. For example,  ‘Super Mario Bros’, released in 1985 for the Nintendo Entertainment System, popularised the side scrolling genre of video games and was largely responsible for ending the two year slump of video game sales in the United States after the video game crash of 1983. It was particularly lauded for it’s innovative controls, which allowed an as of then unparalleled sense of precision, enabling the player to control how far the protagonist jumped, and how fast they could run. In 1987, shortly after the Epyx decision, ‘Great Giana Sisters’ was released. Chris Kohler (2006) has criticised the game for blatantly copying both the “look” and the “underlying design” of Super Mario Bros. Similarities were rife and barely attempted to be concealed – ranging from the title, to the level design, to the control system, to the physics, to the enemy design. Even the title was a spin on the original.

Similarly ‘The Legend of Zelda’ was another very successful and innovative game released for the Nintendo Entertainment System in 1987. For it’s time the game simply defied any kind of categorisation, and incorporated elements from action, adventure, puzzle and role playing games, and masterfully brought them all together under one cohesive whole. ‘Golden Axe Warrior’ released for the Sega Master System in 1991 directly lifted the core game mechanics of this very distinctive and unique game and also featured very similar level design. Audiovisual elements were also taken, since both games also featured similar enemy design, colour schemes and music. Legal action was not taken against either the ‘Great Giana Sisters’ or ‘Golden Axe Warrior’.

The Epyx case would have a decisive impact on several future decisions, but ironically Data East would come to eventually benefit from it. In Capcom v. Data East, Capcom filed a motion for preliminary injunction against Data East from distributing the video game ‘Fighter’s History’. Capcom alleged that this infringed upon its copyrights for the ‘Street Fighter II’ series of fighting video games. Capcom released Street Fighter II in 1991, and the title was both a massive critical and financial success and, similarly to how Super Mario Bros helped to revitalize the console industry, revitalized the coin operated arcade industry. Amongst the game’s most notable features were the, for it’s time, highly detailed and animated character models that resembled humans more closely than any videogame before. It also featured an innovative control system, whereby the player would be able to fluidly and organically move the character in five directions with an eight way arcade stick, and featured six attack buttons which also gave the player an unsurpassed degree of control over their character. By moving the stick in conjunction with button presses, the player would also be able to execute “special moves” and precise “combination attacks”. Finally Street Figher II was praised for it’s highly diverse cast of eight selectable characters, which ranged from the standard karate practitioners in “Ryu” and “Ken”, to a bizarre green man-beast hybrid called “Blanka”.

Capcom alleged that Data East’s Fighter’s History copied the distinctive fighting styles, physical appearances, special moves and combination attacks of many of Street Fighter II’s characters. In it’s defense Data East claimed that there was nothing original about Street Fighter II, which used stereotypical characters and common fighting maneuvers. Capcom thus had to prove that Fighter’s History was substantially similar to Street Fighter II and that the similarity resulted from protectable expression. As per Roth Greeting Cards v. United Card, the test to establish substantial similarity consisted of both extrinsic and intrinsic prongs.

As held in Apple Computer, Inc. v. Microsoft, in order to evaluate extrinsic similarity a court must separate elements of the work that are unprotectable and reserve only protectable expression for comparison under the subjective test. Capcom had identified a list of alleged similarities between Street Fighter II and Fighter’s History, which could be divided into four primary categories:

(1) similarities in characters;

(2) similarities in special moves and combination attacks;

(3) similarities in control mechanics; and

(4) miscellaneous similarities in the general presentation and flow of the games.

Concerning (3), the court held that control mechanics for a fighting game could not be simply expressed in limitless or arbitrary ways. On a practical level, the conceivably infinite combination of joystick inputs was restricted by the need to have the control sequence emulate the natural movements of the human body. On the general matter of control, the court held that “the expression of an idea and the underlying idea frequently merge in the area of control sequences”, thus invoking the merger doctrine, thereby allowing no protection to the merged expression. Overall, whilst the court was disturbed by certain “coincidences” in some of the arbitrary control sequences, it concluded that control mechanisms in general could not constitute an expression entitled to protection, due to their inherent attachment to the underlying idea.

Whilst I agree with the court’s ultimate decision on this matter, I do not side with their rationale. It is in my opinion absurd to say that a control mechanism could never be capable of protection, since the controls contribute greatly to a videogame’s overall playing experience, and thus a fundamental part of the it’s appeal. Whilst Fighter’s History did share many overarching control similarities with Street Fighter II, the court failed to focus on the fact that the controls were, in their specifics, different. Whilst Street Fighter II contained a six button control scheme, which housed attacks of light, medium and strong attacks for punches and kicks, all of which had different applications within the game. Fighter’s History only utilized four buttons, meaning the player could only execute light and strong attacks, which ultimately resulted in tangibly different gameplay. However one must be wary on the matter of control, since it is not the only issue that determines how a game plays. Whilst Street Fighter II and Fighter’s History had subtly different control schemes, many other factors such as game speed, jumping physics and the pushback when an attack was blocked were very similar, thus I consider it to be a fringe case. Nonetheless it is great cause for concern that the courts all but ignored in their dictum how the two games actually played.

Concerning (4), Capcom sought to protect a variety of miscellaneous features in Street Fighter II such as the “attract mode”, “VS.” screens, the character selection screen, end of battle victory quotes and energy bars tracking a fighter’s vitality during a fight. The court simply held however that such features were commonplace and thus unprotectable under the doctrine of scenes-à-faire.

Whilst I believe that, taken as a whole, the similarities between the presentation of both games was not substantially similar, and thus agree with the court’s ultimate decision, again I take issue with their reasoning. One should not apply a lazy, broad-brush approach regarding similarities in presentation and “flow”; the court needs to analyze each factor individually. For example the energy bars that track a fighter’s vitality is a commonplace and necessary feature, since just about every fighting game, save for the exception of the sword fighting simulator ‘Bushido Blade’, where one strike can eliminate the opponent, has featured an energy bar of some sort to track the fight’s progress. Similarly any fighting game that includes more than one character will inevitably require a character selection screen. However, not every fighting game requires end of battle victory quotes and those in Street Fighter II were particularly distinctive in that they showed a screen of the losing character’s bruised and battered face next to that of the victor’s, who would utter the victory quote. Fighter’s History emulated this distinctive design almost exactly, and the courts completely ignored this. Since this case end of battle victory quotes have now become a common practice in the fighting genre, yet still very few include the two portraits of the victor and loser as Street Fighter II did.

Concerning (1) and (2), Capcom argued that Data East had copied the physical appearance of seven of Street Fighter II’s eight playable characters, and furthermore had reproduced twenty-seven of the characters’ special moves. In it’s analysis of the games, the court found that three characters and five special moves in Fighter’s History were similar to those from Street Fighter II. In determining whether these three characters were infringing, the court would first have to filter through all unprotected similarities, and in doing so found that the characters Capcom claimed Data East had reproduced were themselves based on “cultural stereotypes”, and thus unless the similarities went so far as to make the characters “virtually identical”, then there would be no infringement. The court then employed a “total concept and feel” test as borrowed from the case of Shaw v. Lindheim and ultimately held that Data East had not bodily appropriated the characters in question for use in its game.

Again, I take no objection with the court’s decision here, however I feel the court failed to give enough credit to Capcom’s character designs, and certainly do not agree with the idea that only characters that were “virtually identical” would be infringing. Whilst the characters were indeed based on cultural stereotypes, they were stereotypes with distinctive twists. For example one of the characters that was claimed to be reproduced, Guile, was a standard American commando military figure wearing a green vest and army fatigues. However, he also sported a fairly unusual rectangular mohawk, which is obviously unfitting with his persona. The alleged reproduced character, Matlok, was also a cultural stereotype, but instead of being a military figure he was a punk with a generic mohawk hairstyle. He also shared a very similar movelist, in that both character’s primary special move was a boomerang of energy that they shot from their arms. It is evident that Matlok was inspired by Guile, and had he adopted even a slightly military persona to accompany his mohawk and boomerangs, it would clearly be an infringement to me. As it stands however, Matlok and the other two alleged reproductions should merely stand on the boundaries of infringement.

In the sequel to Fighter’s History, Fighter’s History Dynamite (renamed ‘Karnov’s Revenge’ in the US due to the bad press that the Fighter’s History received after this case), Data East continued to take liberties with Capcom’s character designs. An example would include the character Zazie, a muscleman dressed in red with a distinctive beard and hairstyle that bore an uncanny resemblance to Street Fighter’s red-clad bearded wrestler Zangief. Since their movelists were dissimilar, I would again argue that this reproduction should be on the boundary of infringement, yet the sequel never faced a copyright infringement action. As a sort of revenge, Capcom added most of the moves of Lee, a character from Figher’s History, into their own characters, Yun and Yang, in Street Fighter III which was released in 1997.

Having now discussed and criticized the law of copyright as it relates to videogames, I will now turn my attention to how they are protected by patents.

Videogames and Patents

In lieu of the adequate protection for the creative content of videogames through copyright law, lawyers would soon turn their attention to patents. Tony Pluckrose in “Games can’t be Protected by Patent, Right?…Wrong!” discusses how this is possible. In Europe and the UK, although the respective Patent Offices state that “schemes, rules and methods for playing games” or “programs for computers” should not be regarded as “inventions”, there are ways around this. Pluckrose points out that the exclusions apply only insofar as a patent application “relates to such subject matter or activities as such”. The words “as such” have resulted in a narrow interpretation of the restrictions in case law, thus enabling games to be protected by patents.

Specifically, The practice of the UK Patent Office has its roots in the “Official Ruling” which dates back to 1926. This ruling makes no differentiation between:

1. A board game with “playing pieces” that are “moved according to rules.

2. Computer programs with a “display screen” that carry “images dictated by an algorithm”.

The Official Ruling continues on to state that The Patent Office should deny protection for “a method of playing a board game” but will not object to “apparatus for playing a game”. Thus, by claiming a monopoly in the apparatus that is used to play a videogame rather than the method of playing a game, patent protection can be obtained.

This wholly artificial legal loophole raises a very thorny issue, that often the apparatus that is used to play a videogame will facilitate the method, thus the two terms are often interchangeable in the context of a videogame. For example the recently released Nintendo Wii uses a combination of built-in accelerometers and infrared detection to sense its position in 3D space when pointed at certain LEDs within a sensor bar. This apparatus allows players to control the game using physical gestures as well as traditional button presses, which results in new methods of playing games. Similar confusion arises in respect of games such as ‘Virtua Cop’ and ‘Lethal Enforcer’ which utilize a “light gun” (U.S. Patent No. D385924) that the player uses to shoot at enemies on the screen, or ‘Sega Get Bass Fishing’ which utilizes a “Sega Fishing Rod Controller” (U.S. Patent No. D542358).

The US Patent Office generally offers patents more liberally than UK and European Patent Offices, thus if an invention can attain patent protection in the UK and EU, it can almost certainly enjoy patent protection in the USA. It had been assumed that US Patent law would also exclude the same inventions denied protection in the UK and Europe. However the 1998 decision of State Street Bank & Trust Corp v. Signature Financial Group proved to be a turning point in the practice of the US Patent Office. The case concerned certain “business methods” operated via the Internet. These methods were precluded from patent protection in the UK/ EU, however the US allowed the methods to be protected. This effectively led to an explosion in the numbers of patent applications for internet-related innovations, and therefore also videogames that are either distributed or played through the internet. Furthermore certain patents that have been granted recently, such as U.S. Patent No. 6,935,954 (Sanity), which will be discussed later, seem to have taken an extraordinarily liberal view of the term “apparatus”, that goes beyond merely physics devices such as a light gun, but also into playing mechanics coded in the actual software. This has effectively left the doors wide open for videogame law to be overrun by patents.

The net result of this is that in nearly all jurisdictions videogames are now primarily protected by patent law, with the US taking this even further in respect of internet-based games, which in my opinion is a very big issue since it is where the natural evolution of the medium lies. As Pluckrose observes, “Atari has over one hundred granted US and European patents. Nintendo has two hundred and Sega has over one thousand.” In the eyes of the law videogames are thus now effectively seen as “inventions” and not works of original, creative endeavor, as should be protected by copyright. In order for a patent to be granted, it is necessary for an invention to prove itself as “new” and “non-obvious”. This is often referred to as the “novelty” requirement or the invention having an “inventive step”. This state of affairs has lead to several major problems within the game industry:

1.         The first problem is that patents are inherently unsuited to the creative medium of videogames. A patent is not a right to practice or use an invention, instead it is the right to exclude others from making, using, selling, offering for sale, or importing the patented invention for the term of the patent, which is usually 20 years from the filing date and can be renewed indefinitely. A claim to a patent is thus a claim to a monopoly. If wrongly imported into the domain of videogames, or any other creative medium, they can lead to a publisher or developer effectively achieving hegemony over a specific genre of videogame, which would obviously lead to the creativity in this medium being curtailed to all but successful development companies who can afford to pay for licensing fees.

One notable example of this exists in the genre of racing games, where the “Ghost Car” patents of Atari, Nos. US 5,269,687, 5,354,202 and 5,577913 when combined form the right to exclude all others from  a “driver training system”. The “ghost car” is essentially a transparent automobile that acts as a visual representation of the player’s best run through the course, and follows them through subsequent laps so that the player can judge their current performance and thus aim to improve their record time. As Jon Festinger (2005) has observed, racing games without this ghost car feature “are arguably at a competitive disadvantage to those that have them”.

Another example of a potentially overbearing patent that goes to the heart of game design, and is a feature that will become increasingly important in the near future is contained within U.S. Patent No. 6,669,564 (Episodic Content Delivery). Electronic Arts has developed a mechanism to provide episodic delivery of entertainment content to a user. The patent allows EA to exclusively use software which integrates an application module in which is coded an initial episode of the game and a technology shell to allow future episodes to be downloaded over the Internet and executed. As new technology is developed, the new technology can be incorporated into the technology shell independent of the content development. As already stated, I believe the Internet is the natural evolution for both the content and distribution of gaming. Such a patent would allow EA to have an enormous competitive advantage over all its competitors.

2.         The second major problem in allowing patents to infiltrate videogame law is the novelty requirement. Due to the relative weakness of copyright since the Epyx case, now one of the most protectable features of a videogame is whether it contains some kind of “novel” gameplay mechanic which would lend itself easily to patent protection. One example is U.S. Pat. No. 6,935,954 (Sanity). This “invention”, which was developed by developed by Silicon Knights for use in the game ‘Eternal Darkness: Sanity’s Requiem’ and was later licensed to Nintendo, entails a system used in videogames that “modifies, monitors, and reacts to a game character’s sanity level.” A character’s sanity level is modified by numerical amounts based on the game character’s reaction to a particular occurrence or event in the game. Once their sanity falls below a certain limit, certain “sanity effects” come into play, for example walls and ceilings bleeding – with attacking them causing more effusion, the game tricking the player into believing their memory card has been wiped, or the player character’s head falling off. When picked up, the head begins to recite Shakespeare (specifically, Act III scene 1 of Hamlet).

Another example is U.S. Patent No. 6,923,717 (Adrenaline), another “invention” owned by Nintendo, which allows the player to control the adrenaline level of the characters in the videogame with, for example, an analogue trigger on a joypad. When the adrenaline level is high, players act more aggressively. However, the player’s chance of overreacting also increases when the adrenaline increases. For example, a basketball player is more likely to block a shot if his adrenaline level is high, but the player is also more likely to commit a foul.

Whilst in Eternal Darkness the addition of a sanity bar was well received by both players and critics, as it introduced an interesting new twist on the survival horror genre, in some cases the inclusion of bars and meters seems entirely superfluous, serve no real purpose, and if anything merely clutter the playability of the title in question. In my opinion some of these games may have only included these features with the sole intent of endowing the developer or publisher with a monopoly over a certain gameplay feature. A recent example would be the additions of “psyche” and “stress” gauges in ‘Metal Gear Solid 4: Guns of the Patriots’, released in June 2008. In the game the player must use stealth to navigate past war zones, or if he so desires join the battle. However if the player chooses to fight, or is in danger of being spotted by an enemy whilst sneaking, or is in extreme environmental conditions, the character’s “psyche” and “stress” gauges will deplete, causing negative effects such as decreased stamina and accuracy. In order to replenish their mental health, the player must simply find a quiet spot for a few minutes and engage in ‘positive’ activities such as smoking, reading pornographic magazines, or listening to music (on a licensed Apple i-pod no less). Whilst these activities may be justified since the developer, Kojima Productions, is known for it’s eccentricity and the game deals with themes such as coping with post-traumatic stress disorder, they altogether seem very out of place within the general flow of the gameplay. It remains to be seen whether Konami, the publisher, will file for a patent application.

3.         The final problem with patents being used to regulate videogame law is that inevitably with patents will come patent trolls. The general idea behind a patent troll is that a person raises money to fund a company, uses that money to buy patents (often from failed businesses), and then threatens successful companies with litigation unless they pay for a license to the patents. If those companies do not pay, they get sued for patent infringement, a cost that can easily reach into the millions of dollars before judicial decision. This type of litigation was unheard of at the start of the game industry, but has become increasingly common, and is inarguably having adverse effects on not only the gaming market, but also the creative process of game development.

Having now discussed the law as it relates to videogames and presented my criticisms of it, I will now focus on what should be done to rectify the situation. I believe that in order to do proper justice to the videogame medium a reform is needed. However in order to provide more informed and suitable legal protection, a deeper understanding of the subject matter at hand is necessary. Thus the next section of this dissertation will focus on what exactly is a videogame.

Part 2: What is a Videogame?

What isn’t a Videogame

Given the variety of experiences that a videogame can offer, taking into account the evolution of technology since their inception, as a starting point in defining a videogame it is useful to tackle a few preconceptions. According to Rollings and Morris (2000), a game is not merely “a bunch of cool features”, “a lot of fancy graphics”, “a series of challenging puzzles” or “an intriguing setting and story”. It is important to note however that whilst these features cannot in themselves constitute a videogame, they certainly can be used to describe a specific part or component of it.  “Fancy graphics” therefore are clearly important, and in the general the audiovisual component of a videogame can make a great impact on the player’s enjoyment of the title. However even the most aesthetically pleasing audiovisuals do not necessarily result in a successful videogame. Take for example the game “Dragon’s Lair”, which featured beautifully drawn animated cartoons that closely resembled a big budget Disney cartoon, and were in fact drawn by former Disney animator Don Bluth. However the player’s role was more or less limited simply to pressing the right direction or button at given intervals during a cinema sequence. Games such as Dragon’s Lair and “Myst” have been criticised by commentators such as Juul (2005) for offering minimal opportunities for interaction, and despite their lavish visuals these games simply were not very engaging or enjoyable to actually play. On the other hand, games such as “Tetris” or “Pacman”, despite featuring very little in the way of audiovisual flair have proved to be some of the most absorbing, enduring and best selling games ever created.

This section will further explore the relationship between narrative, characters and aesthetic; but for now it is important simply to understand that these alone do not constitute a videogame.

What are Videogames to the Players?

            An important issue to address is the relationship between videogames and the players. Rouse (2001) has identified a range of expectations from players and motivations to play, but amongst them three were particularly notable:

i. “Challenge”

ii. “Immersion”

iii. “Action”

Simlarly Livingstone (2002) in interviewing children about their experiences with videogames, noticed that the words that appeared over and over again were:

i. “Control”

ii. “Challenge”

iii. “Freedom”

This research immediately suggests that the true appeal of a videogame lies within interactive player activity and not within mere static appreciation of audiovisuals. However what is also interesting to note is that Rouse also observed that whilst players desired active participation and tired quickly of non-interactive sections within videogames, (such as for example during cinematic intermissions between playable sections that handled exposition and narrative in a way that was typical of cinema, or what is commonly referred to within gaming circles as a ‘cut-scene’) they also wanted the videogame to be presented in a manner that did not feel contrived, and more specifically in a manner that did not feel like a game at all.

Rouse noted that the most successful videogames were not the ones where players felt as though they were “playing a game”, such as for example a board game, but rather those that were characterised by the sense of “being there” or in other words, a sense of immersion. It is important to understand that this does not presuppose that, for example, a first person viewpoint will inevitably result in the most immersive gaming experience since it is the one that we most closely relate to. Newman (2002) has noted that when a player is describing a gaming experience, which may have occurred within second or third person perspectives in the game itself, will often recount their experience in the first person, as if they were actually in the shoes of the character or even the inanimate object they were controlling in the game. This could range from a blue hedgehog that can run at mach speeds (‘Sonic the Hedgehog’), a gelatinous, pink vacuum cleaner (‘Kirby’s Adventure’), a car, a spaceship, a transparent snooker cue, a pinball machine, a rectangular block (‘Tetris’), a tiny house cleaning robot (‘Chibi Robo’), an anti-viral AI programme (‘Rez’), a God (‘Black & White’), or even a sound-wave (‘Frequency’). As Peter Main of Nintendo remarked of ‘Super Mario World’, a third person platforming game; “Make no mistake, when these kids are playing Mario it’s them up there on the screen” (Serious Fun, Channel 4, 1993).

Thus to the player it appears as though, above all, the most appealing and distinctive element of the videogame was the sense of immersion it provided. How a game may achieve this sense of immersion can vary enormously. Some who posit videogames as “stories to be performed”, such as Murray (1997), Buse (1996) and Laurel (1991) focus on the “interactive narrative” that a game provides. Thus in their view the appeal of a game is quite closely aligned with that of a cinematographic or dramatic work. Certainly some games are very enjoyable due to their absorbing narrative. The ‘Metal Gear Solid’ series for instance contains a very high ratio of passive cut-scenes to interactive gameplay sections, and it has been argued that this lengthy exposition provides “so much context that the action in between [cutscenes] can’t help but feel more important” (Edge Magazine: issue 188). This thus makes the gameplay sections more enjoyable and the game experience more immersive as a whole.

However I feel that to equate videogames so closely to cinema is to do a disservice to their inherently multifaceted nature. A videogame is certainly capable of being very cinematic with the technology available to developers today, yet it also capable of being just a game. As Farley (2000) argues, it is “good gameplay [that] makes you forget yourself and the passage of time, not operating consciously but going with the flow”. This raises another question that must be addressed; what exactly is meant by the term “gameplay” that has been so liberally used in this dissertation thus far? Also what is to be learned of videogames by situating them within the broader critical contexts of “games” and “play”?

Videogames as Games and Play: Ludus and Paidea

“Ludology” is the term that has been attributed to the study of “games” and “play”, Huizinga (1950) provides a useful point of entry to this field of study. Huizinga argues that whilst the notion of “play” is considered free and unfettered, a “game” is characterised by a system of rules. Caillois (1951) expanded further on this theory and made a distinction between certain types of games. The term “paidea” referred to games with simple rules, such as a game of skipping rope, whilst “ludus” referred to a game with a complex set of rules, such as football.

Taking a different approach, Frasca (2001) proposes that “play” and “games” can be differentiated not according to their rules, but their outcome. Frasca suggests that in “play”, there could be no winner or loser, but a “game” was instead characterised by notions of victory or success. This distinction was also highlighted by Piaget (1951), who upon asking a group of children at play “who won?” was answered simply with looks of confusion. Frasca thus modified Callois’ terminology of “paidea” and “ludus” to inform them of this goal-orientated distinction. Paidea, or play, can thus be described as “physical or mental activity which has no immediate useful objective, nor defined objective, and whose only reason to be is based in the pleasure experienced by the player”. On the other hand, a ludus, or a game, describes “activity organized under a system of rules that defines a victory or a defeat, a gain or a loss”.

It is easy to assume that all videogames are archetypal examples of ludus, however Frasca suggests that games can be both paidea and ludus. For example in games such as ‘The Sims’ or ‘SimCity’ it is not possible to win or lose. The player simply watches over a city or a family and makes certain decisions on their behalf. As Church (2002) has observed, these games impose no limits of victory or defeat in and of themselves, rather the player may decide to gauge the progress of their family or city by their own personal and subjective notions of winning or losing. Moreover Frasca (2003) suggests that in many games ludus and paidea can be combined. For example in ‘Microsoft Flight Simulator’ or Nintendo’s ‘Pilotwings’ without a specific goal the player is engaged in paidea. However, the game can easily impose a ludus rule, such as to perform a certain manoeuvre without crashing, and thus the notions of winning and losing are objectively introduced.

Whilst to someone who doesn’t play them videogames may often appear as a complex and impenetrable set of rules that trigger players into specific behaviours and responses, Frasca instead invites us to view videogames as digital worlds, or rather “playgrounds” or “sandboxes”, in which the player can perform a variety of different activities at their discretion. It is ultimately the decision of the player whether he simply wishes to engage in paidea in the gaming world available to them, or follow the trail that the developer may have laid for them and engage in objective based ludus. Thus for example in the ‘Grand Theft Auto’ series the player finds themselves in a large digital representation of a city. Whilst it is possible for the player to “beat” the game by completing certain missions that are given to them by certain characters within the gameworld, many players simply reject this goal orientated approach and spend their time exploring, or if they so desire, committing crimes within the city. The Grand Theft Auto series however almost actively encourages the player to engage in paidea; many of the missions are entirely optional and do not encroach through devices such as a time limit, and it offers an expansive and realistic game environment where the player is at liberty to engage in activities that would be practically unavailable to them in the real world, due to either (it is hoped) the player’s sense of morality or fear of criminal proceedings.

The Core of a Videogame

In many games the player is presented with an initial situation that they have to solve or escape from. Commonly this situation takes either the form of:

1. A puzzle

2. A landscape or general area of game space that needs to be traversed.

3. An enemy obstacle that needs to be defeated or overcome.

The game ‘Shadow of the Colossus’ combines all three, and will be discussed soon. Most games do not tell the player how to solve the situation or conquer the game space, nor do they inform them of anything more but the most basic parameters needed to understand how to play the game. Thus it is up to the player to engage in paidea, to investigate, use their imagination and explore the limits of the game world around them to solve the puzzle, traverse the area or defeat the enemy, which is to say to win at the ludus. Thus the ludus and the paidea, or the game and the play, in a videogame are mutually interchangeable, resulting in “gameplay”.

To further elaborate, in Shadow of the Colossus when the player starts the game he is simply greeted with a horse and a wide, open field. In the distance the player can see a shining light, and realises by intuition that arriving there is his objective and thus a ludus, or game, is established. In order to reach this light the player approaches the horse, and presses buttons until he realises which one is used to mount it. The game has given no instructions in how to control the horse, so the player must simply play around until it is apparent. Thus in trying to complete the “game”, the player/ gamer must engage in “play”. As the player reaches his destination, he is blocked by a wall covered in ivy. This again presents an obstacle to surmount, or an objective to clear. The player approaches the wall and again begins to experiment and play and realises that by pressing “R1″ he can scale it. Beyond the wall he is met by an enormous enemy covered in thick black hair which is many times the player’s size, thus there is no he could possibly defeat him by mere brute force. However the monster, or “colossus”, is slow and lumbering, and the player will soon notice a very obvious and suspicious light on the top of his head, not too dissimilar to what he saw at the beginning of the game. The only way the player could reach the colossus’ head is by scaling it’s thick hair, a lesson the game just recently taught the player through the wall covered in ivy. Once the player successfully scales the colossus, adjusting his grip gauge meter so as not to fall off, he stabs his sword into the light and that section of the game is completed.

Whilst Shadow of the Colossus certainly featured very stylised and aesthetically pleasing visuals accompanied by a beautiful soundtrack, these audiovisual features are not the main source of the player’s enjoyment of the title, although they would certainly have augmented the experience. It was the carefully calibrated, symbiotic relationship between game/ ludus and play/ paidea, or simply gameplay, that the game developer provided for him which I have just described.

Thus to conclude this section of the dissertation, first and foremost a videogame is essentially a digital world where the user is free to engage in “play”, and if they so desire pursue a “game” that the developers may have intentionally constructed for them within this world, or pursue a “game” that the user creates for himself through “play”. The net result of this activity can be referred to as “gameplay”, and it is this gameplay that lies at the heart of videogames. Gameplay is also veiled by an audiovisual display, which may serve to enhance the enjoyment of the videogame, but it must not be forgotton that the main appeal of a game for the player lies within it’s playability and gameplay, since it is that which primarily dictates how immersive it is. This means that the main focus for developers when creating a game should also be the gameplay, therefore the gameplay should be what the law primarily concerns itself if it wishes to offer effective protection for creators of videogames.

Part 3: Reform Proposals

Weakening Patents and Strengthening Copyright

Having now established what the law should aim to protect in the context of videogames, the gameplay, I will now turn my focus back to the failings of the current law and suggest what should be done so that videogames are suitably protected. I offer two primary reform proposals:

1.         The law of patents should not encroach on the creative content of a videogame, and should have a diminished role in the field of videogame law. Patents that exist purely within the realm of software, such as U.S. Patent No. 6,669,564 (Episodic Content Delivery) and U.S. Patent. No. 6,935,954 (Sanity), should not be granted as they will inevitably lead to the monopolisation of key gameplay features, thereby seriously hampering the creative flow of the videogame industry. Ultimately however, a videogame is played through a combination of both hardware and software, and the most suitable protection for technical inventions such as gaming hardware is through patents. This will inevitably result in an overlap with software content, such as for example as was discussed earlier with motion detecting devices such as the Nintendo Wii. This is a compromise that software developers must simply learn to deal so as to give effective rights to the inventors of hardware.

However I believe that primacy must still remain in the hands of game creators or software developers, since gameplay and videogame design are inherently creative in nature. Therefore I propose that certain conditions should be placed on the types of gaming hardware that can be granted a patent. The patents relating to specific gameplay experiences, such as the “Light Gun” or “Fishing Rod” are permissible since the breadth of the inventor’s monopoly covers only a small and isolated sector of the gaming industry and the range of possible gameplay experiences. However a patent should not be granted to an invention that can be universally applied throughout all games. An example of such an invention would be U.S. Patent Nos. 6222525, 5565891 and 5589828 (3D controller with vibration). This patent excludes others from using force feedback “rumble” controllers. Tiny motors are built into the grip of a controller, causing it to vibrate in select situations, such as when firing a weapon or receiving damage, to immerse the player in the game. The use of such an invention is not restricted to a specific genre such as with the light gun, it can be applied universally throughout any type of game. Such a patent could seriously compromise the ability of independent, underground developers to distribute their game without being forced to pay for prospectively unaffordable licensing fees, and thus as a whole could curtail creativity within the videogame industry. However if is this concept is taken too far, it could easily prove to be a major disincentive for inventors, thus it is ultimately proposed that independent software developers without a publisher to fund their licensing fees should simply be exempt from having to pay for licenses.

2.         In light of the diminished role of patent law, copyright must conversely be strengthened to fill in the gaps that it leaves, however obviously not to the extent of a monopoly. As was discussed in part one of this dissertation, the law is now effectively protecting gameplay through piecemeal monopolies, with the incompatible doctrine of “novelty” being the primary barrier to protection. This has not only lead to fractured, fragmented and inconsistent protection, but has also in my opinion promoted some unwanted and forced practices in game design, such as gimmicky, superfluous and unnecessary gauges to satisfy the novelty requirement. Needless to say, the fact that the law is actually forcing creators to diminish the quality of their games is huge cause for concern.

Essentially what is needed is that videogames and gameplay should be protected through overarching principles that aim to protect creative endeavours, which is provided through the law of copyright. This in my opinion will inevitably result in more consistent, effective and relevant protection. However, as could be observed in Atari Inc. v. North American Phillips, Data East v. Epyx and Capcom v. Data East the courts generally pay very little attention to the actual experience of playing the game, or that is to say the gameplay of the titles in question. The only case that seemed to take the gameplay into meaningful consideration was Atari v. Amusement World, in basing it’s ultimate decision on the general “feel” of the games.

The problem with protecting gameplay however is that it is a somewhat nebulous and intransigent concept. Many courts are afraid to give adequate protection to what they cannot see or hear, since they feel that doing so would be in breach of one of, if not the most, fundamental doctrines of copyright law; the idea/ expression dichotomy. Though the dichotomy has been mentioned before in this dissertation, I feel it is now necessary to plainly state what it entails, as I will now explore its compatibility and overall relationship with the videogame medium.

Protecting Gameplay

The idea-expression dichotomy was originally formulated so as to ensure that the manifestation of an idea, or expression, is protected rather than the idea itself. The rationale behind this is that if ideas were to be protected it would monopolize the basic building blocks of expression. Thus the primary aim of the idea-expression dichotomy is to stimulate creativity while at the same time ensuring that such creativity is protected. However the line between an expression that merely houses an idea and an unprotectable bare idea is often not so clear, specifically for our purposes, on how one is to define the concept of gameplay. There are several ways of approaching the issue:

i.          First one could view gameplay as a straightforward “expression”, but merely in the context of the underlying source code that houses it. Such an approach was adopted in the case of Accolade v. Distinctive. However this case was not so much concerned with the actual content of the videogames in question, as it was between contract language housing a licensing agreement between the two parties. Defining gameplay merely as the source code for general purposes however would be totally inappropriate, as it is clearly not where the appeal or purpose of a videogame lies. A videogame is fundamentally made to entertain, and the source code merely facilitates that. This legal definition of gameplay should thus be disregarded.

ii.         Secondly one could define gameplay as essentially being an idea, and thus not capable of copyright protection. This seemed to be the approach that Judge Trott adopted in Data East v. Epyx,. It is interesting to note however, that Judge Trott’s decision seemed to be heavily influenced by Atari Inc. v. North American Phillips. In both cases the courts were primarily influenced by whether the plaintiff’s videogame was based on a unique premise that was dislocated from real world situations, or “wholly fanciful creations”. This is the only way that one can reconcile the Phillips and Amusement World cases, because on their bare facts they are almost identical. Both games featured very similar audiovisuals, but where as the ultimate decision in Amusment World was based on the different “feel” of the two games, which would take into account both the audiovisual and interactive elements of the game, Phillips was based on the level of abstraction the plaintiff’s game based itself on.

It is submitted that the approach utilised in Phillips was wrong, and as will hopefully become clear, it is also submitted that Epyx was wrong for the same reason. First of all the level of abstraction has no real bearing on the gameplay of a videogame, although it may factor into whether a game is sufficiently original enough to gain copyright in the first place. However it would be extremely unlikely for a videogame to ever fail the generally low standards of the “sweat of the brow” tests employed in the US and the UK, although it would factor more heavily in the “imprint of the author’s personality” test applied in other jurisdictions such as Spain and France. Regardless of this, originality is generally not the issue in a case dealing with infringement.

As Chris Kohler (2006) has noted, the gameplay in K.C. Munchikin “really wasn’t that similar to Pac-Man.” Where as Pacman featured a screen full of static dots, in K.C.Munchkin “there were actually only twelve on the screen at any time — and they moved around the maze, meaning that K.C. had to chase them down and corner them to eat them”. To someone who actually plays videogames the two titles would be very different. Thus when Judge Trott imported this “degree of abstraction” test (not to be confused with the abstraction, filtration, comparison test from Computer Associates v. Altai) into the Epyx case to instead argue it in the defendant’s favour, that “Karate is not susceptible of a wholly fanciful presentation”, he borrowed a test that was wholly out of touch with both the appeal and design of the videogame medium.

One could also go further and argue that the “degree of abstraction” test is in fact protecting mere concepts or ideas, and is thus incompatible with the idea/ expression doctrine. The mere concept of a “gobbler” for example is simply an idea, and this along with the general quirky, off beat nature of Pacman is what was primarily protected in Phillips. It is therefore ironic that in Epyx Judge Trott would import this idea-protecting test so as to free the object of protection of something that only may have conceivably been characterised as an idea, that is to say the gameplay.

3.         However I do not believe that gameplay can or should be characterised as an idea, and this brings me to the final prospective legal definition of gameplay; what I would like to propose as “invisible expression”. It is my belief that videogames in their entirety, both audiovisual and interactive components, are perfectly compatible with the idea/ expression doctrine and therefore of being adequately protected under copyright law. What is simply needed however is a more daring and liberal approach on the issue of intangibility within the courts.

Anne Barron (2002) has argued that copyright law, and law in general, is constantly in “pursuit of certainty, objectivity and closure”. This pursuit is incompatible with the “amorphous character” of certain “intellectual entities”, such as gameplay, and therefore causes great problems for judges who must try to define what intangible property is. In the pursuit of certainty they thus turn their attention to protecting only what is obviously tangible, and in the context of videogames this is commonly the audiovisual component. This effectively makes it impossible to offer protection for videogames in a way that is relevant and meaningful, since gameplay, (which as we concluded in part two of this dissertation is the core component of a videogame) cannot be seen or heard, however this does not necessarily mean it is intangible. Gameplay is tangible, and therefore cannot be characterised as an idea, because the player actively experiences it during their engagement with the videogame, and a bare idea cannot be actively experienced.

Playing the Game

I believe that essentially the correct approach to copyright in the context of videogames lies within the Amusement World case, with the majority of case law that followed it being either generally misguided or just plainly wrong. Whilst the wording in Amusement World is somewhat imprecise, the concept of a game’s “feel” being ill defined, it holds at it’s core the correct legal reasoning. The court was completely right to take into account how the spaceships actually fired and handled as well as the increased speed as key factors in their decision, since they tap directly into the notion of gameplay. Amusement World was also correct to take the aesthetics or audiovisual component of the videogame into account, yet also downplay its importance in relation to the interactive component. Thus the case recognised that whilst the games looked very similar, this was not the determining factor in infringement.

Amusement World is an early case however, and as was mentioned in part one this effectively had the effect of setting a lower threshold of scrutiny for perhaps confusingly similar games due to the limitations of the technology at the time. As technology improves the quality of the audiovisuals will improve, thus providing more scope for differentiation, and advances in hardware will allow a broader range of gameplay experiences. Thus as hardware becomes more advanced, the law must also upwardly scale the degree to which similar games are scrutinised.

To conclude, the reason I believe Amusement World is the only case that applies a sound line of reasoning for protecting videogames is that it is the only one where the rationale showed evidence of the judge having actually sat down and played both games on trial. Not out of mere cursory obligation for a copyright infringement case, but instead to beat his high-score, to try and see if he could destroy multiple asteroids with one shot of his laser, to take down as many enemies as he could under one minute, to see how quickly the ship could travel from one side of the screen to the other, to see if he could use the sense of momentum intentionally coded into game to strafe around the asteroids and thus make him a more efficient pilot, to simply to engage in play or paidea, whilst also trying to beat the game or ludus. If the law wishes to effectively protect videogames through the law of copyright, this is simply what judges need to do…just play the game.


During 2003 it was estimated by Reuters that hardware and software sales for videogames had reached $11 billion in the United States alone. According to ELSPA (European Leisure Software Publishers Association) in 2001 that videogame software sales in the United Kingdom totaled £1.6 billion. Recently first day sales records in the U.S. were broken twice within a few months of one another both by video games. The first game, Halo 3, made $170 million on September 25 2007, then on April 29th 2008 Grand Theft Auto IV generated $180 million with 6 million copies of the game being purchased. In comparison first day sale records for any other medium is currently held at $59 million by Spiderman 3.

Shuker (1995) has referred to videogames as “a major cultural form, and may well soon replace cinema, cable and broadcast television as the dominant popular medium”. Presently we are some time away from Shuker’s prediction coming true, if at all, but Juul (2000) has more pragmatically noted that given that we have not yet seen the first videogame equivalent of Shakespeare or Bach, the speed at which the medium has developed aesthetically, formally and functionally is truly remarkable.

Given the evident social, cultural, economic and political significance of videogames, it is in my view a huge cause for concern to see the law serving them so inadequately. Given the extraordinary growth of the medium, the problems I have mentioned are likely to exacerbate in the future if the law is not drastically and immediately reformed. Poole (2000) has predicted that in the same way that advancement in art was initially characterised by striving to achieve realism, but eventually gave way to abstractionism and impressionism, similarly videogames have until now focused on achieving realism, however not much advancement has been made in exploring the unique possibilities for videogames as art, save for a few localised exceptions such as ‘Rez’, which attempts to create the experience of synaesthesia within the player. I predict that instead when total graphical realism has been achieved in videogames, the only thing left for them to explore will be their own intrinsically unique qualities, specifically their gameplay. It is at this point that the cracks and inconsistencies in the current legal framework will prove too much to bear and reform will become a matter of necessity.

However on a more positive note; I feel that when the current generation of judiciary pass on, and a new generation of judges take their place, to whom the notions of videogames and gameplay are not foreign concepts, then many of the issues I have highlighted with how the law of copyright handles videogames will resolve themselves, potentially giving rise to a more natural and effective legal regime. However this can only happen if the law of copyright is given the space it needs to flourish. Currently the weight of patents hems it in from all sides, clumsily distorting an inherently creative subject matter with the blunt force of monopolies. Unless specific and unified action from all jurisdictions is taken against the proliferation of patents within videogame law, publishers and entrepreneurs will continue to rob the creative freedom of developers, one inventive step at a time.


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Frasca, G. (2001) ‘Videogames of the Oppressed: Videogames as a Means of Critical

Thinking and Debate’, (2001) ‘Rethinking agency and immersion: videogames as a means of consciousness-raising’

Huizinga, J. (1950) ‘Homo Ladiens: A Study of the Play Element in Culture’

Juul, Jesper  (2005) Half-Real: Videogames between Real Rules and Fictional Worlds

Kent, Steven. L (2001) ‘The Ultimate History of Videogames’

Kohler, Chris (2005) ‘Power Up: How Japanese Video Games Gave the World an Extra Life’

Laurel, B. (1991) ‘Computers as Theatre’

Livingstone, S. (2002) Young People and New Media: Childhood and the Changing Media Environment’

Murray, J.H. (1997) ‘Hamlet on the Holodeck: the Future of Narrative in Cyberspace’

Newman, J.A. (2002) ‘In search of the videogame player: the lives of Mario’

Newman, James (2004) ‘Videogames’

Piaget, J. (1951) ‘Play, Dreams and Imitation’

Poole, Steven (2000) ‘Trigger Happy: Videogames and the Entertainment Revolution’

Rollings and Morris (1999) ‘Game Architecture and Design’

Rouse, R. (2001) ‘Game Design Theory and Practice’


U.S. Patent No. D385924 (Light Gun)

U.S. Patent No. D542358 (Fishing Video Game Controller)

U.S. Patent Nos. 5,269,687, 5, 354, 202 and 5,577,913 (Ghost Car)

U.S. Patent No. 6,669, 564 (Episodic Content Delivery)

U.S. Patent. No. 6,935,954 (Sanity)

U.S. Patent. No. 6,923,717 (Adrenaline)

U.S. Patent Nos. 6222525, 5565891 and 5589828 (3D controller with Vibration).


Barron, Anne in ‘Copyright Law and Claims of Art’ (2002) in ‘The Intellectual Property quarterly, Vol 4, 2002’

Edge Magazine: issue 188 ‘No Country for Old Men’

Frasca, Gonzeao ‘Simulation versus Narrative: Introduction to Ludology’ in ‘The

Videogame Theory Reader’ (2003): edited by Mark J.P. Wolf and Bernard Perron

Kohler, Chris (2006) ‘Retro Rip Offs’

Pluckrose, Tony ‘Games can’t be Protected by Patent, Right?…Wrong!’ (2001) at

Shuker, R. (1995) ‘Game far from over: the video game phenomenon’ in the Journal of the National Association of Teacher Educators 34


Accolade, Inc. v. Distinctive Software, Inc. 1990 WL 180239 (N.D.Cal. 1990)

Apple Computer, Inc v. Microsoft, Corp. 35 F.3d 1435 (9th Cir. 1994)

Atari, Inc v. Amusement World, Inc 547 F.Supp. 222 (D. Md. Nov. 27, 1981).

Atari, Inc. v. North American Philips Consumer Elecs. Corp., 672 F.2d 607 (7th Cir. 1982).

Atari Games Corp. v. Oman 888 F.2d 878 (D.C. Cir. 1989), on remand, 979 F.2d 242 (D.C. Cir. 1992)

Capcom v. Data East (N.D. Cal. 1994)

Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992)

Data East v. Epyx 862 F.2d 204 (9th Cir. 1988)

Feist Publications, Inc. v. Rural Telephone Co, 499 U.S. 340 (1991)

Midway Mfg. Co. v. Artic. Int’l, Inc., 704 F.2d 1009 (7th Cir. 1983)

Roth Greeting Cards v. United Card Co. 429 F.2d 1106 (9th Cir. 1970)

Shaw v. Lindheim, 919 F.2d 1353 (9th Cir. 1990)

State Street Bank and Trust Corp. v. Signature Financial Group (1998)

Stern Electronics Inc. v. Kaufman, 669 F.2d 852 (2d Cir. 1982)

WGN Continental Broadcasting v. United Video (1982)


Breakout (1976), Atari

Scramble (1981), Konami

Pacman (1980), Namco

Galaxian (1979), Namco

Asteroids (1979) Atari

Meteors (1983) Acornsoft

K.C. Munchkin (1981) Ed Averett

Karate Champ (1984) Data East

Warrior (1979) Tim Skelly

International Karate/ World Karate Championship (1986) System III

Super Mario Bros (1985) Nintendo

Great Giana Sisters (1987) Rainbow Arts

The Legend of Zelda (1986) Nintendo

Golden Axe Warrior (1986) Sega

Fighter’s History (1993) Data East

Street Fighter II: The World Warrior (1991) Capcom

Bushido Blade (1997) Squaresoft

Fighter’s History Dynamite/ Karnov’s Revenge (1994) Data East

Street Fighter III: New Generation (1997) Capcom

Virtua Cop (1994) Sega

Lethal Enforcers (1992) Konami

Sega Get Bass Fishing (2000) Sega

Eternal Darkness: Sanity’s Requiem (2002) Silicon Knights

Metal Gear Solid 4: Guns of the Patriots (2008) Kojima Productions

Dragon’s Lair (1983) Cinematronics

Myst (1991) Cyan Worlds

Tetris (1985) Alexey Pajitnov & Vadim Gerasimov

Sonic the Hedgehog (1991) Sega

Kirby’s Adventure (1993) HAL Laboratory

Chibi-Robo (2005) Nintendo

Rez (2001) United Game Artists

Black & White (2001) Lionhead Studios

Frequency (2001) Harmonix Music Systems

Super Mario World (1990) Nintendo

Metal Gear Solid (1998) Konami

The Sims (2000) Maxis

Simcity (1989) Will Wright

Microsoft Flight Simulator (1982) Microsoft

Pilotwings (1990) Nintendo

Grand Theft Auto (1997) DMA Design

Shadow of the Colossus (2005) Team Ico

Halo 3 (2008) Bungie

Grand Theft Auto IV (2008) Rockstar North


“Game Over, Yeah!” – Sega Rally Championship (1995) AM5

Copyright – Arya Tayebi – 2008

By Myke

Supreme, unchallenged and unadulterated overlord of this slice of interwebs.

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