The author's arsenal: loosening standards for protectability and substantial similarity in video game copyright

Abstract

This article examines and critiques the American copyright regime's increasingly protective approach to video games and their subject matter. Over the past decade, a trio of district court decisions have bolstered protection for video games by relaxing standards for protectability and substantial similarity. Subsequent rulings, concerning both games and other forms of intellectual property, suggest this protective streak will continue. While heightened protection might provide a necessary deterrent to ‘cloning’ and other kinds of impermissible copying, it will also endanger valuable forms of appropriation. After decades of limited copyright involvement, mimesis has become an important element of game creation – widely tolerated by the gaming community as a source of inspiration, interoperability, and cultural conversation. A more expansive view of protectability may inhibit imitative behavior that has, in the past, benefited new creators and fans without harming the economic expectations of prior authors. Moreover, that new approach, which relies heavily on juries for unpredictable, case-by-case determinations, may restrict the financial and creative outlook of the video game industry at large. In its first section, this article identifies the elements of video games that have been deemed protectable under copyright law. The second section summarizes foundational video game case law, in which courts established restrictive standards for protectability and substantial similarity. The third then discusses the paradigm shift towards more expansive protectability, recounting cases where courts found games worthy of heightened protection. In its fourth section, this article argues that the protective trend has yet to peak, looking to evidence gleaned from recent copyright suits. A concluding section outlines the risks of overprotection, cautioning against a potentially unreasoned and impractical copyright standard.