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>Casual Games and Casual Copying

>Imagine releasing a new flash game on the net and then finding out that someone else made your game into a Facebook/iPhone application without your knowledge. The designer of a certain casual game, Boomshine, Daniel Miller, doesn?ÇÖt have to imagine. His story illustrates why it’s important to understand and consider the range of intellectual property protections available for your next game.

Miller has filed a complaint in the Northern District of California, accusing the creator of a copycat game, known as ChainRxn, Yao Wei Yeo, and Facebook of copyright infringement, and improperly allowing the game to remain posted even after being notified of the alleged infringement.

In both Boomshine and ChainRxn, the game begins with a set of multicolored dots bouncing around a black background. The player?ÇÖs only interaction with the game is a single click to create an initial white circle, which causes any of the dots that collide with it to expand into additional colored circles. The colored circles then collide with additional dots in a chain reaction. A screenshot from both games is shown after the jump.

According to the suit, Miller has been granted a copyright on his game by the U.S. Copyright Office. When considering a claim for copyright infringement, it?ÇÖs important to remember that the ?Ç£idea?Ç¥ for a game cannot be protected by copyright. Neither can the name of the game or the method of play. And nothing in copyright law prevents others from developing another game based on similar principles. Copyright protects only an author?ÇÖs specific ?Ç£expression?Ç¥ of the game. Therefore, only the non-functional game elements, like the selection of graphics and sounds, may be protectable under copyright.

According to the suit, Miller asked Facebook and Yao Wei Yeo to remove ChainRxn, but they refused to do so. ?Ç£ChainRxn copies the look and feel of Boomshine by incorporating almost every visual element of the game,?Ç¥ the suit said. Miller claims Facebook is also liable with Yao Wei Yeo for infringement because it ?Ç£induced and encouraged?Ç¥ infringement by refusing to remove the game.

In response to the suit, Facebook argues that it is merely a passive conduit for Yao Wei Yeo to publish his game. Facebook said it had no involvement in Yeo?ÇÖs activity and should not be dragged into the dispute. Facebook took a similar stance when Hasbro initially tried to shut down Scrabulous, an early Facebook application that copied the board game Scrabble.

Gavin George is an associate in the Intellectual Property Practice Group of Haynes and Boone. His practice covers all areas of intellectual property law, with an emphasis on technology transactions and data privacy in the information age. His practice includes technology agreement drafting and negotiation, intellectual property analysis and due diligence, and consulting on evolving data protection and social media issues.

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March 2010