Thursday, February 20, 2014

Can Pac-Man Save Pac-Avoid? Protecting the Look and Feel of Mobile Games.

"How do I protect my game" is a common question asked by indie game developers.  One solution is though copyright law.  Copyright, for example, may protect against copying of code or characters.

As games move from graphic-intensive productions (Modern Warfare) and back to simplistic productions (maze games, platformers) I believe the question of "can I protect the look and feel of my game?" will arise frequently.  It is easier to copy Pac-Man than Modern Warfare.  

Recently,'s "Scamperghost" was accused of copying the look and feel of an indie game called "Pac-Avoid."  Read about it here.  Once again, questions are raised about the scope of copyright protection.

Copyright 101

Copyright protects original works of authorship fixed in a tangible medium of expression.  A work of authorship is the expression of an idea and not the idea itself.

In the video game context, copyright protects such things as code, visual elements (design, characters, graphics), audio, written elements and the work as a whole.  Copyright does not protect the idea behind a game.

But what about protecting the look and feel of a game?

Look and Feel*

To prove copyright infringement, one must prove copying of the protected work.  Copying may be inferred where the alleged infringer had:

(1) access to the game and;

(2) where the copy is substantially similar to the original.

Substantial similarity is tested though the response of an ordinary observer and whether the observer believes that the copy captures the look and feel of the original.

Pac-Man vs K.C. Munchkin*

Since the design of many mobile games harkens back to early video games, it makes sense to look at copyright infringement cases involving those original video games.  In 1982, Atari (the creators of Pac-Man) sued the creators of a game called "K.C. Munchkin" alleging that Munchkin violated Atari's copyright in Pac-Man.

In analyzing copyright infringement, the court applied the look and feel test.  I will let you, the ordinary observer, determine whether there is substantial similarity in the look and feel of the copyrighted elements of Pac-Man (recall: characters, graphical elements etc. are copyrightable, not the idea):
Ultimately, the court concluded that Munchkin:

"adopted the same basic characters but also portrayed them in a manner that made Munchkin appear substantially similar to Pac-Man.  The K. C. Munchkin gobbler has several blatantly similar features, including the relative size and shape of the “body,” the V-shaped “mouth,” its distinctive gobbling action (with appropriate sounds), and especially the way in which it disappears upon being captured. An examination of the K. C. Munchkin ghost monsters reveals even more significant visual similarities.  In size, shape, and manner of movement, they are virtually identical to their Pac-Man counterparts. K. C. Munchkin’s monsters, for example, exhibit the same peculiar “eye” and “leg” movement. Both games, moreover, express the role reversal and “regeneration” process with such great similarity that an ordinary observer could conclude only that [Munchkin] copied plaintiffs’ Pac-Man."

From Pac-Man to Pac-Avoid

The recent allegations concerning and Pac-Avoid prompt comparisons to Atari's Pac-Man case (putting aside Pac-Avoid's similarities to Pac-Man!).  Apply the substantial similarity test to determine whether the left,, game has the same look and feel as Pac-Avoid:
The case highlights the risks involved with game development - that the relative simplicity of some games allows for easy copying.  Nonetheless, the Pac-Man case hints at potential legal recourse for games that are copied in look and feel by relying on the copyrightable components of a game, such as the characters.

For game designers, the solution may lie in creating distinct characters and graphic elements in the game.  Through such distinctiveness, a game developer may be able to prove copyright infringement where another game has the same look and feel.  The greater the distinctiveness, the greater the potential copyright protection.

*  This analysis involves U.S. legal principles only.

This blog post is intended for informational purposes only and does not constitute legal advice or an opinion on any issue.  Please contact Voyer Law Corporation if you would like details or advice on a particular situation.