Tetris Holding, LLC v. Xio Interactive, Inc.

Tetris Holding, LLC v. Xio Interactive, Inc., 863 F.Supp.2d 394 (D.N.J. 2012), is a legal case related to copyright of video games confirming that a video game's look and feel can be protected under copyright law. Tetris Holding is a company that holds the Copyright to the original "Tetris " game from 1984, and licenses those rights to other game developers. Xio Interactive is a game developer that released "Mino" in 2009, a mobile game based on the gameplay of "Tetris". "Mino" was downloaded millions of times, and Tetris Holding filed a DMCA notice and eventually a lawsuit against Xio for copyright infringement.
The earliest video game case law had protected the designs in "Galaxian" and "Pac-Man". But later cases such as "Data East USA, Inc. v. Epyx, Inc." found that it is permissible to make a video game clone with similar ideas and principles as another game, since Copyright does not protect an idea, only the specific expression of that idea. A trial occurred in 2012, the first case in a long time to proceed to trial on this issue. The District Court ruled for Tetris Holding, with Judge Wolfson applying the Abstraction-Filtration-Comparison test to determine if infringement occurred. Although standard gameplay ideas are not copyrightable, "Mino" was still substantially similar to "Tetris" in terms of the their art style, and those elements are in fact protected by copyright. This case has since been applied in other Copyright disputes to offer broader protection to the look-and-feel of video games.
Background.
Facts.
In 1984, Alexey Pajitnov created the puzzle game "Tetris" for the Dorodnitsyn Computing Centre at the Soviet Academy of Sciences. Within a few years "Tetris" became one of the most successful video games of all time. Henk Rogers was one of the key people who brought "Tetris" to the world by going to Moscow to negotiate for the rights. Rogers later befriended Pajitnov and helped the two acquire ownership of the Copyrights from a former Soviet agency. By the early 2000s, Rogers and Pajitnov created The Tetris Company to manage the "Tetris" rights and licenses to other game developers in order to standardize certain game elements. 
In 2009, a game developer named Xio Interactive released a mobile game called "Mino" that was based on the gameplay of "Tetris." Xio had tried to license the rights to "Tetris" from The Tetris Company, who refused. At that point Xio researched intellectual property law to see how to design a game similar to "Tetris" that would not include any legally-protected elements. The game "Mino" featured the same approach of using falling tetromino blocks to form complete lines on a playfield and score points. Golden carefully worded the marketing of the game to avoid all references to "Tetris", outside of a disclaimer which read: "Mino and Xio Interactive are not affiliated with Tetris or the Tetris Company".
Although "Mino" was not the first "Tetris" clone, it became one of the most successful with more than six million downloads. In August 2009, Tetris Holdings sent DMCA notices to Xio via Apple requesting that Apple take "Mino" down from the App Store. As part of the DMCA process, Xio filed a counter-notice and Apple re-instated the game to their store. Since Apple could not permanently remove the software without a legal order to do so, The Tetris Company filed a lawsuit against Xio Interactive in December 2009 in the United States District Court for the District of New Jersey.
Legal principles.
The earliest video game case law was an extension of other copyright cases in media and technology, offering copyright protection to original characters and specific sequences of code, but not to gameplay systems that are essential to create a game. Copyright jurisprudence developed a legal doctrine called the idea–expression distinction, which says that copyright does not protect a general idea, only one expression of an idea. Based on this, Copyright does not protect scènes à faire, where stock scenes and generic details are common among creative works. There is also the merger doctrine where some ideas may only have a limited number of ways of being expressed, and it would be legally unfair to protect expression if it effectively gives someone a monopoly on an idea. For this reason, the Copyright Office advises that "Copyright does not protect the idea for a game, its name or title, or the method or methods for playing it. Nor does copyright protect any idea, system, method, device, or trademark material involved in developing, merchandising, or playing a game. Once a game has been made public, nothing in copyright law prevents others from developing another game based on similar principles." 
These principles had been interpreted to protect the shapes of insect-like aliens in "Galaxian", as well as protecting "Pac-Man" from a copy called "K.C. Munchkin!" in 1982. However, Copyright has also been interpreted to allow video game clones that closely matched gameplay concepts as long as their expression was original. This has allowed the creation of games that share many similarities, including "World Karate Championship" and "Karate Champ" in Data East USA, Inc. v. Epyx, Inc., or "Fighter's History" and "Street Fighter II" in another lawsuit with the same parties. This has been interpreted to mean that a game's expressive elements are copyrightable, with game mechanics and rules being freely copyable as ideas. With the costs of filing a lawsuit being very high compared to the expected outcome, many video game copyright holders became hesitant to sue alleged clones. The "Xio" case emerged as the first major case in a long time to proceed to trial on this issue.
District court.
The case was assigned to Judge Freda L. Wolfson. Judge Wolfson reviewed two of the five claims brought by Tetris, a first claim for copyright infringement and a second claim for trademark infringement via the game's trade dress. In defending the copyright claim, Golden admitted to having copied "Mino" directly from the official "Tetris" app that was developed under license by Electronic Arts, and that prior to publishing the game, had sought a license to "Tetris" from Tetris Holdings but was denied one. Subsequently Golden researched copyright law and continued to develop "Mino" based on case law around video games, stressing that video games were only covered by through their expression, and because "Mino" used completely new audio and video assets, there was no copyright infringement.
Judge Wolfson ruled early that, as previously established, the gameplay of "Tetris" was not copyrightable. While the New Jersey district court was within the Third Circuit and which had prior case law from "Whelan v. Jaslow" (797 F.2d 1222 (1987)) that used a purpose-based test to abstract software to determine if copyright was infringed, Wolfson opted to explore prior case law from other circuits through the Abstraction-Filtration-Comparison test (AFC) for substantial similarity that had been first defined in "Nichols v. Universal Pictures Corp." (45 F.2d 119 (1930)) and applied to computer software in "Computer Associates International, Inc. v. Altai, Inc." (982 F.2d 693 (1992)). Two video game cases, "Atari, Inc. v. North American Philips Consumer Electronics Corp." (related to the copyright of "K.C. Munchkin!" to "Pac-Man") and "Midway Manufacturing Co. v. Bandai-America, Inc." (related to handheld clones of Midway's "Galaxian") were found to have been ruled in the same manner as the AFC test, according to Wolfson, and thus was applicable to the "Mino" case. To apply the AFC test to "Mino", Judge Wolfson compared the games "as they would appear to a layman [by] concentrating upon the gross features rather than an examination of minutiae", essentially comparing the games' respective look and feel; Wolfson further wrote "[i]f one has to squint to find distinctions only at a granular level, then the works are likely to be substantially similar".
Wolfson concluded quickly that "Mino" failed the AFC test with respect to "Tetris" since the two games looked similar side-by-side. Further, Wolfson rejected the merger doctrine claim that Golden had proposed, since the details of the art style used in the "Tetris" blocks had "are not part of the ideas, rules, or functions of the game nor are they essential or inseparable from the ideas, rules, or functions of the game." Wolfson further dismissed Golden's "scènes à faire" arguments, ruling that "Tetris" was a unique game and thus had no established stock or common imagery that would be ineligible for protection. In weighing these arguments, Wolfson noted that "Mino" copied "Tetris" much more closely than a game like "Dr. Mario", a game utilized the rules of "Tetris" in a non-infringing way to create unique expression. 
Wolfson also agreed with Tetris Holdings that "Mino"s trade dress violated their trade dress, since the look and feel was too similar to "Tetris" but was not essential to the operation of the game.
Wolfson subsequently granted summary judgment in Tetris's favor on both counts in May 2012, which required Xio to withdraw the game from the App Store.
Impact.
Legal scholars have included this decision in a wave of cases that have pushed the boundaries of video game copyright protection, along with "Electronic Arts Inc. v. Zynga Inc." As Golden did not appeal the case to the Third Circuit, the decision is only binding precedent on the District of New Jersey. However other courts have cited the ruling as relevant case law in evaluating other video game cloning cases and have relied upon it to establish a new approach to evaluating copyrights surrounding the look and feel of video games. Scholars have argued that this case represents the game medium coming of age, evolving from rudimentary gameplay into sufficiently expressive systems that are worthy of copyright protection. This coincides with the legal system having more experience and understanding of video games, where the judge who decided the case was 18 when "Pong" was released. The ruling shows the courts using a "high level of understanding of video game mechanics for the first time". 
For example, shortly after the decision in "Xio", another cloning case was heard in the United States District Court for the Western District of Washington, brought by Spry Fox against developer Lolapps over their game "Yeti Town" which Spry Fox claimed was a copyright-infringing clone of "Triple Town". At the initial hearings, the judge followed similar logic used in the "Xio" case to order a preliminary injunction in favor of Spry Fox, as "Yeti Town" had the same look-and-feel as "Triple Town" when simply viewed side by side. The case was subsequently settled out of court, with Spyr Fox gaining ownership of the "Yeti Town" property by the end of 2012.
Since these cases in 2012, legal scholars have found that courts have been more scrutinizing of look-and-feel in cases involving video game clones. While idea-expression distinction, merger doctrine and scènes à faire remain driving principles for games based on more realistic visuals, abstract games may be more unique and lack pre-established form, allowing their look-and-feel to be more rigorously evaluated through abstraction as part of a copyright lawsuit. Susan Corbett argues that "the "Tetris" decision supports the view that United States courts are becoming more accepting of the possibility of offering broader copyright protection for videogames". Tomasz Grzegorczyk notes that this case shows courts are willing to recognize that the "graphic user interface of the game is subject to protection under copyright in the same manner as audiovisual works". Noting that the copyright infringing game copied exact shapes and colors, Steven Conway and Jennifer deWinter argue that the decision would not impact other alleged game clones that are less similar. Josh Davenport and Ross Dannenberg suggest that while a "standard game device" may be too generic to warrant copyright protection, that a specific selection or arrangement of those devices would quality as unique expression, and thus copyrightable. John Kuehl calls this case a potential killing blow to knock off video games that are near copies of the original.
Despite warnings that the case might lead to an explosion of intellectual property disputes and copyright trolls, there has only been an incremental increase, with the courts applying this legal standard carefully to new cases. Nicholas Lampros also noted that the facts of this case were highly specific, leading to "a narrow, fact-heavy legal standard, the outcome of which is difficult to predict outside of court". He added that this would put more onus on digital distribution platforms to manage potentially infringing products. Tom Phillips has noted that the high cost and uncertainty of fact-specific litigation has led developers to hold each other accountable in the media, as an alternative to legal action.