American Experience of Video Game Copyright Protection and its Implications for China
DOI:
https://doi.org/10.6981/FEM.202511_6(11).0001Keywords:
Video Game; American Experience; Enlightenment for China.Abstract
As one of the countries with the most developed video game industry, the United States has gradually accumulated experience in the copyright protection of video games through continuous exploration in its judicial practice. In recent years, China's gaming industry has also experienced rapid development. And Chinese judicial practices have gradually accumulated valuable experience via continuous exploration on the copyright protection on Video Games. This paper aims to examine U.S. legislation and case law to explore its developmental patterns and summarize insights for China.
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[1] The name of this game is "Tennis for Two" (Double Tennis), a game which allows people to play tennis on an oscilloscope. It was used for the entertainment of visitors at the Brookhaven National Laboratory in New York. It is claimed that at that time, there was a situation where hundreds of people queued up to play. Ahriven: "A Brief History of Global Video Games", https://wenku.baidu.com/view/87bd295ef76527d3240c844769eae009581ba22c.html, Accessed on October 21, 2022.
[2] “A videogame typically contains two major components: audiovisual material that appears on screen and the computer program that runs the game.” U.S. Copyright Office: Copyright Registration of Computer Programs, https://www.copyright.gov/circs/circ61.pdf, 2020.03.04.
[3] “According to the Copyright Office, when answering the ‘type of work being registered’ question on the application form, the copyright holder shall ‘choose the type most appropriate to the predominant authorship’.” Andy Ramos, Laura López, Anxo Rodríguez, Tim Meng and Stan Abrams: The Legal Status of Video Games: Comparative Analysis in National Approaches, WIPO World Intellectual Property Organization, Page 90, Paragraph 283, https://www.wipo.int/export/sites/www/copyright/en/creative_industries/pdf/video_games.pdf, last accessed on February 7, 2020.
[4] Atari, Inc. v. Amusement World, Inc. United States District Court, D. Maryland. November 27, 1981, 547 F. Supp. 222, 215 U.S.P.Q. 929.
[5] “Plaintiff’s ‘work,’ the thing that plaintiff has created and desires to protect, is the visual presentation of the ‘Asterioids’ game. That work is copyrightable as an audiovisual work and as a motion picture.” Paragraph [4] [5], Atari, Inc. v. Amusement World, Inc. United States District Court, D. Maryland. November 27, 1981, 547 F. Supp. 222, 215 U.S.P.Q. 929.
[6] “However, the Court finds that most of these similarities are inevitable, given the requirements of the idea of a game involving a spaceship combatting space rocks and given the technical demands of the medium of a video game.” Paragraph [12], Atari, Inc. v. Amusement World, Inc. United States District Court, D. Maryland. November 27, 1981, 547 F. Supp. 222, 215 U.S.P.Q. 929.
[7] “The visual and aural features of the audiovisual display are plainly original variations sufficient to render the display copyrightable even though the underlying written program has an independent existence and is itself eligible for copyright. Nor is copyright defeated because the audiovisual work and the computer program are both embodied in the same components of the game. “ Stern Electronics, Inc. v. Kaufman, 669 F. 2d 852 (1982), 213 U. S. P. Q. 443.
[8] Capcom U. S. A., Inc. v. Data East Corp., Not Reported in F. Supp. (1994).
[9] “ A court may enlist the assistance of ‘analytic dissection’ and expert testimony to aid it in identifying the core of protectable expression under the extrinsic test. ” Capcom U. S. A., Inc. v. Data East Corp., Not Reported in F. Supp. (1994).
[10] “The intrinsic test consists solely of the response of the ordinary reasonable person to the question of whether the challenged work captures the ‘total concept and feel’ of the protected work.” Capcom U. S. A., Inc. v. Data East Corp., Not Reported in F. Supp. (1994).
[11] “These similarities can be divided into four primary categories: (1) similarities in characters; (2) similarities in special moves and combination attacks; (3) similarities in control sequences; and (4) miscellaneous similarities in the general presentation and flow of the games. Each of these categories of alleged similarities will be examined independently. Because the Court finds that the third and fourth categories are not eligible for copyright protection, they will be examined first and quickly filtered out of the analysis.” Capcom U. S. A., Inc. v. Data East Corp., Not Reported in F. Supp. (1994).
[12] “Applying the virtual identity standard, the Court finds that Data East has not copied the core, protectable expression in Street Fighter II.” Capcom U. S. A., Inc. v. Data East Corp., Not Reported in F. Supp. (1994).
[13] Even Data East changed the main programmers several times during the production process of "Fighter's History" due to technical bottlenecks. Eventually, they were compelled to hire a programmer from CAPCOM at a high salary to solve the problem. See: Baidu Baike entry for Capcom, URL: https://baike.baidu.com/item/CAPCOM, last accessed on March 14, 2020.
[14] Tetris Holding, LLC v. Xio Interactive, Inc., 863 F.Supp.2d 394 (2012).
[15] “The game mechanics and the rules are not entitled to protection, but courts have found expressive elements copyrightable, including game labels, design of game boards, playing cards and graphical works.” Affiliated Hosp. Prods., Inc. v. Merdel Game Mfg. Co., 513 F.2d 1183, 1188–89 (2d Cir.1975).
[16] “But this principle does not mean, and cannot mean, that any and all expression related to a game rule or game function is unprotectible.” Tetris Holding, LLC v. Xio Interactive, Inc., 863 F.Supp.2d 394 (2012).
[17] “Tetris Holding has given the rules of its game to the public domain, but has kept the rights to its expression.” “Considering the exponential increase in computer processing and graphical capabilities since that unique variation on Tetris's rules, the Court cannot accept that Xio was unable to find any other method of expressing the Tetris rules other than a wholesale copy of its expression.” Tetris Holding, LLC v. Xio Interactive, Inc., 863 F.Supp.2d 394 (2012).
[18] Spry Fox LLC v. LOLApps Inc., Not Reported in F.Supp.2d (2012).
[19] Tian Hui, "Research on the Infringement Determination of Computer Game Works' Copyright under the Overall Protection Mode," Journal of Dalian University of Technology (Social Sciences Edition), Vol. 40, No. 6, November 2019.
[20] “No one would deny the many similarities between Triple Town and Yeti Town. Those similarities pervade the games, from their underlying concepts to their rules to the visual appearance of their characters and backgrounds.” Spry Fox LLC v. LOLApps Inc., Not Reported in F.Supp.2d (2012).
[21] “In a literary work like a novel or screenplay, the ‘measurable, objective elements that’ constitute [its] expression include the ‘plot, theme, dialogue, mood, setting, pace, characters, and sequence of events…’ …A video game, much like a screenplay expressed in a film, also has elements of plot, theme, dialogue, mood, setting, pace, and character. Spry Fox took the idea underlying Triple Town and expressed it with its own characters, its own setting, and more. These objective elements of expression are within the scope of Spry Fox's copyright.” Spry Fox LLC v. LOL Apps Inc., Not Reported in F.Supp.2d (2012).
[22] “Xio's expert, Jason Begy, agreed at his deposition that a ‘a game designer could design the playing pieces for a video game in an almost unlimited number of ways.’” Tetris Holding, LLC v. Xio Interactive, Inc., 863 F.Supp.2d 394 (2012).
[23] Judgment of the Higher People's Court of Beijing Municipality, Case No. 1039 of (2015) Gao Min (Zhi) Zhong.
[24] “…the test is the response of the ordinary lay hearer; accordingly, on that issue, ‘dissection’ and expert testimony are irrelevant.” Arnstein v. Proter, Circuit Court of Appeals, Second Circuit. February 11, 1946, 154 F.2d 46468 U.S.P.Q. 288.
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