Elements of the game that are not subject to copyright

Recently, our regular client — a mobile game developer — reached out to us: Apple sent them a notification about a complaint, claiming that they violated another game developer's copyright by allegedly stealing the game's title, game mechanics, and UI design. Sounds dramatic? However, this was merely the subjective opinion of the complainant, which does not align with legislative requirements and standards. So let's break it down point by point:

1. Copyright on the game title

The concepts of both games involve puzzle collecting, and therefore the games' titles contained words such as “Blockin’,” “Block,” “Puzzle,” “Color.” Indeed, at first glance, the game titles are quite similar. But (there's always a but): the mentioned words are used in a wide range of games related to puzzle collecting or building blocks. Such words (and their combinations) are commonly used, have become a standard in the game development industry, and are not tied to a specific product or developer, and therefore cannot be considered individual or unique to a particular game. Their widespread use is accepted in the industry, where developers often use similar verbal constructions to express the overall theme of the game.

Case law and legal standards confirm that commonly used words and phrases cannot be protected by copyright. As stated by the U.S. Copyright Office (37 C.F.R. § 202.1), “words and short phrases, such as names, titles, and slogans” are not copyrightable because they contain minimal amounts of authorship. This is due to the fact that they do not represent unique creative expressions but are part of the general linguistic practice in the field, and therefore are not subject to copyright protection.

A game title can only be protected by a registered trademark, which would grant its owner exclusive rights to use that title.

In summary: the use of similar terms in game titles is not sufficient grounds for accusations of copyright infringement, as these terms are standard and widely used in the game development industry and can be used both individually and in combination by any developers. Additionally, such words/phrases can be used not only in online games but also in other variations of games related to puzzles, blocks, building sets, or riddles.

2. Copyright on the game's UI design

In general, the UI design of a game is protected by copyright, but… Here comes that but again… Lawyers always find a way👌🏻

Some elements of UI design, such as the pause button, play level button, hint button, and others, are standard and widely used in many games. Such standard elements are commonly accepted and are used to create a unified and understandable interface language in the game development industry; they are not unique or original expressions of creativity, and therefore they do not fall under copyright protection.

Thus, copyright does not protect components that are not considered “unique elements of the game.” According to the U.S. Code (§ 102), copyright protection extends only to ORIGINAL works or parts thereof.

Moreover, there is the concept of scenène à faire, which states that common elements necessary for implementing a specific idea cannot be protected by copyright. So when a designer uses commonly used elements, such as standard buttons (pause button or hint button) in their game's UI design, the concept of scènes à faire recognizes them as non-copyrightable or standard components that cannot be protected by copyright. Such elements are recognizable and widely used markers that are necessary for implementing a specific idea in the game development industry. This principle was upheld in the case of Whelan Associates, Inc. v. Jaslow Dental Laboratory, Inc., 609 F. Supp. 1307 (E.D. Pa. 1985), where the court ruled that common design elements dictated by functional considerations are not protected by copyright. Thus, the use of standard buttons in interface design does not constitute copyright infringement if they are used in a standard and recognizable manner.

As noted in the case of Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991), copyright does not protect standard and commonly accepted elements.

Therefore, according to legal standards, standard graphic design elements cannot be protected by copyright, making their use legal.

Furthermore, if a game has distinctive features, is more modernized and contemporary, it may also not fall under copyright protection. Courts, as evidenced by the case of Atari, Inc. v. North American Philips Consumer Electronics Corp., 672 F.2d 607 (7th Cir. 1982), consistently rule in favor of developers who incorporate distinctive elements that enhance user experience and provide unique functional capabilities.

3. Copyright on game mechanics

Here it is important to emphasize that game mechanics are not protected by copyright. Many games use similar or analogous gameplay elements, and this does not violate copyright laws. Specifically, the rules and methods of play are not subject to copyright, as these elements pertain to the idea of the game, and ideas, as is known, are not subject to protection. Additionally, in the gaming industry, it has always been a recognized practice to borrow gameplay mechanics or template gameplay mechanics from previously created ones, so these components are almost always not subject to legal copyright protection.

This is confirmed by the U.S. Code (17 U.S. Code § 102), which states that copyright protection for an original work does not extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which they are described, explained, illustrated, or embodied in such work.

In the context of games, § 102(b) means that rules, gameplay mechanics, and any other functional elements are not protected by copyright. The Copyright Office's informational bulletin on games explains this as follows: “Copyright does not protect the idea of a game, its title or name, nor the method or methods of playing it. Copyright also does not protect any idea, system, method, device, or trademark related to the development, sale, or playing of the game. Copyright only protects the particular way an author expresses themselves in literary, artistic, or musical form.”

Shall we move on to conclusions?

Game elements such as music, characters, source code, script, graphics, design, etc., are subject to protection against plagiarism. However, the described case shows that there are exceptions to this rule: the title of the game and its mechanics are not protected by copyright; design may be recognized as copyrightable in the absence of distinctive features of the game and unique elements of improvement.

Therefore, it is always worth communicating with experienced intellectual property lawyers who can find a way out of the situation, counter unfounded claims and complaints, so that your reputation is not tarnished by a complainant who considers you a “plagiarist.”