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Facebook Scrabble Rip-off Capitalizes on Mattel's Lethargy

Posted by Zonk on from the missed-a-bit-of-an-opportunity-there dept.

mlimber writes "The Facebook app Scrabulous was written by two Scrabble-loving brothers in India, has over 700,000 users, brings in about $25,000 per month in advertising revenue, and is in flagrant violation of copyright law. The corporate owners of Scrabble, Hasbro and Mattel, have threatened legal action against the creators and have made deals with Electronic Arts and RealNetworks to release official online versions of the game. But according to an NYTimes article, 'Scrabulous has already brought Scrabble a newfound virtual popularity that none of the game companies could have anticipated,' and according to one consultant to the entertainment industry, 'If you're Hasbro or Mattel, it isn't in your interest to shut this down.' Hasbro's partner RealNetworks is 'working closely' with the piratical brothers, but Mattel says that 'settling with the [brothers] would set a bad precedent' for other board games going online."

18 of 216 comments (clear)

  1. Scrabble cannot be copyrighted. by Reverend528 · · Score: 4, Informative
    Copyright applies to an expression of an idea, not the idea itself. Scrabble is not an expression.

    The image of the board can be copyrighted. The manual can be copyrighted. The logo can be trademarked. But the rules of the game are not subject to copyright.

    --
    Badass Resumes
    1. Re:Scrabble cannot be copyrighted. by julesh · · Score: 2, Informative

      Copyright applies to an expression of an idea, not the idea itself. Scrabble is not an expression.

      The image of the board can be copyrighted. The manual can be copyrighted. The logo can be trademarked. But the rules of the game are not subject to copyright.

      The arrangement of bonus squares could be subject to copyright. Also (although with somewhat less certainty) the selection of available letters could be subject to copyright. Change these, and you'll end up with a game that is somewhat like Scrabble, but which isn't Scrabble and which isn't subject to copyright. As it is, these two aspects of the game seem likely to me to be copyrightable.

    2. Re:Scrabble cannot be copyrighted. by 99BottlesOfBeerInMyF · · Score: 5, Informative

      The image of the board can be copyrighted. The manual can be copyrighted. The logo can be trademarked. But the rules of the game are not subject to copyright.

      Yeah, people are clueless about intellectual property. I dug up the original Reuters article this is referencing, assuming somewhere along the line someone copying it had managed to confuse copyright and trademarks. Sadly, it appears it was the original reporter that screwed up. He says they threatened with regard to copyrights, but all the direct quotes refer to trademarks, brands and "intellectual property." Never once does any spokesperson for Mattel reference copyright directly.

      Note, trademarks are probably what are at issue since "Scrabulous" is easily confused with "Scrabble." The authors of the game should have picked something that did not reference the trademarked name.

    3. Re:Scrabble cannot be copyrighted. by 99BottlesOfBeerInMyF · · Score: 3, Informative

      The arrangement of bonus squares could be subject to copyright.

      I don't think this is true. You could patent the arrangement, but that would have expired by now. You could patent certain images in certain locations, but if, for example, a clone used a different symbol or text to indicate bonus squares I don't think that would be considered copyright infringement.

      Also (although with somewhat less certainty) the selection of available letters could be subject to copyright.

      Again, I think this would have to be a patent.

      Change these, and you'll end up with a game that is somewhat like Scrabble, but which isn't Scrabble and which isn't subject to copyright.

      I'm pretty sure copyright is a mistake made by the Reuters reporter. He references copyright, but the Mattel representative says "trademark" and "Scrablous" is pretty confusingly similar to "Scrabble" such that the average person could certainly think the former was made by the same person as the latter.

    4. Re:Scrabble cannot be copyrighted. by 99BottlesOfBeerInMyF · · Score: 3, Informative

      What bothers me about these discussions on Slashdot is that 99% of the time, it's people that aren't lawyers, and don't really have a sense of what the law actually is.

      Actually I had already linked to this page which is the U.S. office of copyright's page for guidelines on copyrighting games. It specifically excludes the items I mentioned and since trademark does not apply to such items, patent is all that is left.

      "I feel that the law is this way" really isn't a valid argument.

      You're correct, excepting the fact that your statement is a straw man, since neither I nor the other poster claimed we felt anything, only what we thought.

      Can either the parent or the GP point to some precedent - legislation, caselaw or anything to support their positions

      Strangely I don't have a legal library handy. I did, however, cite public documents published by the government.

      What jurisdiction would this be filed in?

      Likely India for ease of getting damages.

      Is there any jurisdiction that would support Mattel or Hasbro's position?

      And what position, exactly, is that? Mattel, who has standing in this, has only talked about trademarks. Lots of jurisdictions will support their rights in that regard and they probably have a pretty slam-dunk case with Scrabble and Scrabulous being so similar.

      These are all important questions before you can start to argue abstractly on law you don't know about.

      You don't have to be an expert on intellectual property laws to have a reasonable handle on them, given that they are fairly uniform in most of the world. That applies double in a simple case like this.

    5. Re:Scrabble cannot be copyrighted. by ezberry · · Score: 2, Informative

      Intellectual property laws are not uniform around the world. That was one of the "I feel that the law is this way" arguments. You might wonder "where does this guy get off saying all this?" I'm a lawyer.

      It's not patent law, as you claim. A patent would have expired years ago. Also, Scrabble was denied a patent by the PTO. I don't know what copyrights are claimed, but there are several claims that could be raised, including the look of the board as an artistic expression. The Scrabulous board uses the same colors and pieces as Scrabble. Clearly there are a number of trademark issues. It's not clear why you brushed those claims aside, maybe you don't know the law and you just felt that it was a certain way? Is Scrabulous too similar to Scrabble? Maybe. Is the use of the word Scrab in conjunction with a crossword game a trademark violation - probably.

      Mattel and Hasbro's position, obviously, is that there is a violation of their intellectual property in one form or another. They will raise both copyright and trademark claims. But you're sorely mistaken if you think their primary goal is to disgorge the makers of Scrabulous of the ~$300,000 per year that they make off the game. They sell 1 to 2 million Scrabble boards per year. They want it taken offline, and they don't need to sue in India for that. Different circuits in the US have different bodies of law. Mattel and Hasbro will have their pick of the one with precedent most supportive of their claims. The Scrabulous makers will likely not have many grounds for removal.

      Your rebuttal, however, really proved my original point. Every claim you made was wrong - and that didn't stop you from saying it as though you had some authority.

  2. Flagrant violation of copyright law by RedWizzard · · Score: 3, Informative

    How exactly is Scrabulous in "flagrant violation of copyright law"? Did they copy the text of the rules wholesale? Did they use the Scrabble trademark? Scrabulous may be a blatant rip-off of Scrabble, but it's not at all clear that it violates any of Mattel's intellectual property.

  3. Copyright by N7DR · · Score: 3, Informative

    Games are usually patented. Weirdly, though, Scrabble seems to have been copyrighted instead (http://www.mattelscrabble.com/en/adults/history/page6.html). It's pretty difficult for a non-lawyer like me to see how this is adequate protection. (If it was patented at some point, the patent must surely have expired anyway.)

  4. Re:Unfortunately... by Reverend528 · · Score: 5, Informative

    Patents last 17 years. Scrabble is 70 years old. That would place its rules in the public domain.

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    Badass Resumes
  5. Mattel has always been protective of scrabble by Evets · · Score: 4, Informative

    The fact that this is news to the guys who built Scrabulous just shows that they haven't done their homework. Mattel has been very aggressive about shutting down online scrabble implementations since the early days of the web.

  6. Re:Unfortunately... by Anonymous Coward · · Score: 0, Informative

    17 years...

    Yes, but Copyright law in the US was extended, so it wouldn't be.

    Remember the mickey mouse law?

    According to Wikipedia:

    "...the Act extended these terms to life of the author plus 70 years and for works of corporate authorship to 120 years after creation or 95 years after publication, whichever endpoint is earlier...

  7. Re:Uh, Flagrant Violation of What? by PitaBred · · Score: 3, Informative

    Do you know WHY Microsoft settled? It was looking dangerously close that they would lose Windows as a trademark entirely because of how generic it is, so they settled to make sure it didn't go to court. At least that's what I've heard speculated most reliably... I don't think the actual details were released.

    Which means that if you're trying to draw parallels here, Mattel is in for a world of hurt.

    --
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  8. The law seems pretty clear to this non-lawyer... by Max+Threshold · · Score: 4, Informative

    "The idea for a game is not protected by copyright. The same is true of the name or title given to the game and of the method or methods for playing it.

    "Copyright protects only the particular manner of an author's expression in literary, artistic, or musical form. Copyright protection does not extend to any idea, system, method, device, or trademark material involved in the development, merchandising, or playing of a game. Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles."     - http://www.copyright.gov/fls/fl108.html

  9. I've been playing Scrabble online for years at ISC by femto113 · · Score: 4, Informative

    That's the "International Scrabble Club" at http://www.isc.ro/ Servers are run out of Romania to avoid the legal issues. It manages to attract many of the best Scrabble players in the world.

  10. Riskulous by bryanbrunton · · Score: 2, Informative


    The game of Risk (also a Hasbro property) has a multitude of imitations around the web, one of which is my web-based version, called Grand Strategy (www.denizengames.com). I've heard from the creators of other Risk games that they have been threatened by Hasbro if they have used Risk trademarks. I believe that the precedent is fairly clear: Hasbro and other corporate entities won't touch you if you stay away from trademarks, game rules cannot be copyrighted.

    What's amazing is how poorly done Scrabulous is. The site design, flow and presentation are incredibly weak. A fair amount of the site appears to be "under construction". And they're going to pay tens of millions for that?

  11. Blanket "intellectual property" confuses again by tepples · · Score: 2, Informative

    I dug up the original Reuters article this is referencing, assuming somewhere along the line someone copying it had managed to confuse copyright and trademarks. Sadly, it appears it was the original reporter that screwed up. He says they threatened with regard to copyrights, but all the direct quotes refer to trademarks, brands and "intellectual property." Never once does any spokesperson for Mattel reference copyright directly. Which only serves to illustrate the confusion that blanket terms such as "intellectual property" create.

    Note, trademarks are probably what are at issue since "Scrabulous" is easily confused with "Scrabble." The authors of the game should have picked something that did not reference the trademarked name. Which is why I made sure to pick a name for LOCKJAW tetromino game that doesn't have even one letter in common with "TETRIS".
  12. Re:Unfortunately... by Anonymous Coward · · Score: 2, Informative

    Well, that's true, but not really the issue here.

    They're not copyrighting the word. They're copyrighting the concept as a whole, of which the word is a part. So other game companies can use the word "tap" (as in tapping the deck for luck) and they can use the concept of turning cards sideways. They CANNOT however, call turning cards sideways (perhaps more specifically, in order to use 'points') and call it tapping.

    In the same way, Marvel Comics cannot copyright the word "wolverine", but they can copyright their Wolverine character. Other comics may use characters named Wolverine or characters with retractable claws and unbreakable bones, but they may not use characters named Wolverine with retractable claws and unbreakable bones.

  13. BrettSpielWelt, anyone? by Asmor · · Score: 2, Informative

    If Scrabulous sets a bad precedent... What about BrettSpielWelt, a German program (available in English) which allows you to play dozens and dozens of the best board games to come out of that unlikely mecca of gaming.