How Courts View Copyright Protection For Video Games

Originally published by Law360, New York (July 17, 2017)

Copyright claims based on alleged similarities between video games ("clones") are as old as the industry itself. While video games, like other creative works, may receive some level of protection, not all elements of a game are protectable. Abstract ideas, including game mechanics and rules, as well as functional and scenes a faire elements, are not entitled to copyright protection under current United States law. Only expressive elements are protectable. For courts, this distinction can sometimes be only skin deep, and whether or not a clone faces liability frequently turns on whether the second developer takes the time to create a new visual design for a game.