We Make You Think

Tiny Tower v. Dream Heights

Dear Mr. Young:

I came across your article entitled Copyrights and Copycats, and, as an avid gamer currently going through law school, my interest was piqued. I agree wholeheartedly regarding the distinction you make between the hypothetical Steamtown and Digcraft games (and as an aside, I would seriously consider playing the non-existent Steamtown game). Visual styles should not carry a lot of weight (although it should certainly be a factor to consider) when comparing two video games for the purposes of an infringement claim. Gameplay mechanics and the “feel” of a game should be far more important than claiming two games are the same because both worlds are made up of blocks. However, I disagree with your feelings towards litigation in claims like these.

Update August 2012: It seems that Electronic Arts has brought suit against Zynga for their game The Vile. This exchange between Electronic Arts and NimbleBit ensued.

I am not sure if you have any legal background (and I am humble enough to recognize my own knowledge on intellectual property rights is a barely a drop in the bucket), but allow me to offer a different perspective. With regard to intellectual property, there are three potential ways of getting legal protection: patents, copyrights, and trademarks. I find that most people have a difficult time understanding the difference. Here is the explanation from the Library of Congress, which I think sums it up nicely:

“Copyright protects original works of authorship, while a patent protects inventions or discoveries. Ideas and discoveries are not protected by the copyright law, although the way in which they are expressed may be. A trademark protects words, phrases, symbols, or designs identifying the source of the goods or services of one party and distinguishing them from those of others.”

The trademark is really irrelevant in this context so I am not going to discuss it.


In order to get a patent, you would file an application with the Patent and Trademark Office (commonly referred to as the PTO). The application is reviewed by someone who specializes in the general field covered by the patent. Video game patents would probably fall under the broad category of software patents. Of course, there are certain limitations on what can be patented. Without going too in-depth, generally speaking a patent has to contain:

  1. Patentable subject matter (which just means it is something that the law recognizes as capable of being patented);
  2. Novelty (it has to add something new that did not exist before);
  3. Utility (it has to be useful in some way);
  4. Non-Obviousness (it cannot be something obvious); and
  5. Enablement/Description (it has to be described in a way that would allow others to make use of it)

Subject matter is a big point of controversy regarding software. Software certainly can be patented, but under what circumstances and to what extent is a hot debate. Let us assume there are no issues with video game patents fulfilling the subject matter requirement. The most difficult elements in establishing a patent claim would be novelty, utility, and non-obviousness.

Pointing to those factors is my usual method of trying to calm the angry sea of people who claim the sky is falling when the subject of patents comes up in the media. Anything and everything will not be patented just because litigation X is successful/not successful. Those hurdles are not easy to overcome, and the non-obvious requirement keeps the whole system from becoming a joke.

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  1. Excellent summary. Very helpful.

    I’ve found that Shamus has a facility for simplifying highly technical matters and presenting them in a way that a layman can understand. So, he could get certified as an “expert witness” on computer game technology? How does one go about that?

    • Oh absolutely. There are no formal education requirements needed to be considered an expert. The classic example I learned was a case where an expert was needed to describe diseases that could be contracted by cows. The man that was brought as an expert did not graduate high school, he had no formal training, but he had been a cow farmer for 40 years. The court accepted him as an expert anyway, and I think rightly so.

      It’s all very fact-specific, but I imagine Shamus could absolutely be considered an expert :)

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