Facebook Scrabble Rip-off Capitalizes on Mattel's Lethargy

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."

Comments

double word score for ...

[Anonymous Coward]

firstpost

Re:double word score for ...

[WwWonka]

firstpost

...and negative karma for grabbing nine tiles out of the bag.

Scrabble cannot be copyrighted.

[Reverend528]

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.

Re:Scrabble cannot be copyrighted.

[99BottlesOfBeerInMyF]

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.

Re:Scrabble cannot be copyrighted.

[99BottlesOfBeerInMyF]

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.

Re:Scrabble cannot be copyrighted.

[Naughty Bob]

Not to mention the famous 'Batman's belt' case.

Re:Scrabble cannot be copyrighted.

[WK2]

I count seven:

* black (sometimes Asian) cop, white cop
* family man has crisis, family is there for him, or he discovers he doesn't need them
* quest to kill bad guy
* boy learns he has special gift, and then goes to avenge his parents/guardians
* some tragedy strikes a town (such as monster attack), and a small group of people must kill monster, etc, or maybe leave.
* hunted man must escape to freedom and kill his hunters
* some guy must solve a series of obscure puzzles to find treasure/kidnapped girlfriend or family member/save world

There's actually probably a few dozen movie plots. But I'm pretty none of them are copyrightable.

Re:Scrabble cannot be copyrighted.

[hey!]

That's silly.

You have to be lawyer to give legal advice of course, but saying you always have to be a lawyer to have an opinion about what is legal implies that the law is nothing more or less than state coercion.

The important thing about the law is that it divides what a person can do from what he can't. If an educated person of average intelligence can't tell what is legal or illegal, then he can't give voluntary consent to the law. He might not grasp the subtleties and implications of various aspects of contract law; but he should be able to have an informed grasp of something like the distinction between copyrights and patents.

He certainly should be able to have an opinion about what the law should be.

This is certainly an intriguing situation. Logically, the GP is correct; scrabble is a system. But clearly game systems are kinds of works that have been habitually accorded copyright protection. The problem is that there isn't a clear, logically unambiguous boundary between categories of things like systems and forms of expression. The law makes decisions as if there were precise boundaries, even though they don't exist. It has to because we expect it to. That's why you need a lawyer. Over time the law's line becomes more and more precise, but the underlying distinction doesn't change at all. In truth when you look at cases adjacent to a well established line but on opposite sides, the distinction between them is bound to be arbitrary. That's also why lawyers always qualify their advice in terms of probable outcomes; if they were on the other side of the case they could argue the other way; and there's no telling whether a clever opponent will manage to frame the case in a way that nudges it one way or the other if it is close.

This is certainly one of those cases where assigning the work to the realm of invention or expression is arbitrary. The state of case law may be such that an IP lawyer could tell you with confidence which side of the line this falls on. However an equally competent lawyer, working in a parallel universe with a chain of case law that is equally justifiable, might give you an opposite answer. In fact, that happens all the time with lawyers working in different jurisdictions.

And therefore non-professionals are entitled to their opinion. If they plan on marketing such a game, they'd be well advised to consult a lawyer, but not to tell them anything about expression or invention they don't already know.

Re:Scrabble cannot be copyrighted.

[99BottlesOfBeerInMyF]

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.

Re:Scrabble cannot be copyrighted.

[cpt kangarooski]

Remember the merger doctrine? Where the expression and idea are merged such that affording protection to the expression would in effect confer protection to the underlying idea, neither is protected. Anything unoriginal may be copied. Remember how facts and other noncopyrightable elements can be plucked from any source whatsoever? The same applies here. And there are some other, similar doctrines, e.g. roman à clefs.

A graphic work may be protectable, but the nonprotectable elements that appear within it are not, and may be copied freely.

In the case of a scrabble board, we have: A board which is 15 by 15 squares. This is defined by the uncopyrightable rules of the game, and may be copied. Some squares, in certain locations, have special attributes (e.g. double word score). This is defined by the rules, and so the attributes and locations of these squares may be copied. Designating these squares by some means is an idea, and is uncopyrightable. A specific means for doing so may be copyrightable, if sufficiently creative. Coloring the special squares doesn't seem particularly creative to me. While the choice of colors -- red and blue -- may be creative, the use of different shades of those colors likely is not, where the attributes are related (e.g. double letter is a shade of double word). Also, where we're looking at a mere three colors (the board, and the two base shades), it seems likely that merger would apply, since there's a very finite number of basic possibilities, especially where extrinsic factors that limit creativity come into play, such as what color combinations look good to the average player.

Finally, there is the utility doctrine. Where a graphic work is useful, and where that use is inseparable from its appearance, there is no copyright. Here, we have a totally functional game board meant for playing a game on, aligning tiles, indicating the scores of words or letters placed at certain spots, etc.. It is highly utilitarian, and lacks separable ornamental features. This would likely be yet another reason to deny copyrightability on the game board art. Cf. with other games, such as Candyland, which has a very decorative board that has many non-useful features.

I don't dispute that you are a lawyer, but there is more to copyright law than most people outside the field realize sometimes.

Uh, Flagrant Violation of What?

[spun]

You can't copyright the rules to a game, sorry. Trademark violation, maybe.

Re:Uh, Flagrant Violation of What?

[langelgjm]

Trademark violation, maybe.

Right. Microsoft sued about the name "Lindows" as a trademark violation, not copyright. They didn't win, but they did settle, and it's not called Lindows anymore. "Scrabulous" is clearly making a reference to the Scrabble trademark, and is profiting from that reference. There are probably other issues, as people have mentioned, about gameplay (the layout of the board), but I think the thing with the name has got to be about trademark.

Re:Uh, Flagrant Violation of What?

[PitaBred]

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.

Electronic Arts????

[recoiledsnake]

Does EA need to develop a version of online Scrabble? What are they going to do, make a Directx 10 only version of it with Ageia physics so that it runs only on Vista with a hardware physics card? For a pro-flash developer I think it will take only a weekend of work to make a beta version of a clone of scrabble.

Unfortunately...

[Moryath]

some fucktard in the USPTO ruled they could be patented.

They let Magic:The Gathering have patents on turning a card sideways and upside down... nevermind that a good book on the tarot, or even an early-1900s copy of Hoyle's Book of Games, ought to be enough "prior art."

Then again, these are the same fucktards who think you can patent a software loop that calculates a simple mathematical equation.

Re:Unfortunately...

[Reverend528]

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

Flagrant violation of copyright law

[RedWizzard]

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.

Copyright

[N7DR]

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.)

Fixed the summary

[bobdotorg]

From the summary:
Hasbro's partner RealNetworks is 'working closely' with the piratical brothers, but some douchebag lawyers at Mattel says that 'settling with the [brothers] would set a bad precedent' for other board games going online."

Not everybody at Mattel is a strategic idiot. But why should some douchebag lawyer let increased profits stand in the way of a good old fashioned pointless lawsuit?

I don't see the issue here

[mcsqueak]

I fail to see the issue with what these two enterprising brothers have done. In my opinion, Mattel would never have thought about making a Scrabble facebook app... thus, in my twisted logic, they are not really being deprived of revenues they would have been otherwise earning. I know this doesn't really make it "right", but whatever. You snooze you lose.

These companies, time and time again, show that they just "don't get" the current online world and are having a hard time figuring out how to transition and make a profit. Rather than suing these guys they need to hire them.

They have a claim

[the computer guy nex]

Naming a game "Scrabulous" obviously (court to decide) builds from the name Scrabble.

Would Scrabulous be as popular if it wasn't instantly recognizable? Probably not.

Mattel has always been protective of scrabble

[Evets]

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.

Re:Oh crap I am in Trouble now.

[Pope]

Sorry, Trouble is a Milton Bradley game!

The law seems pretty clear to this non-lawyer...

[Max Threshold]

"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

I've been playing Scrabble online for years at ISC

[femto113]

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.

Re:Oh crap I am in Trouble now.

[Ambiguous Puzuma]

Sorry! is a Parker Brothers game.

Rights? Right.

[Fantastic Lad]

I distilled the following from the Wiki entry

-Invented by Alfred Mosher Butts in 1938. Was unable to sell the idea to the big game companies of the day, including Parker Brothers and Milton Bradley.

-Sold manufacturing rights to entrepreneur, James Brunot in 1948 for royalties on each unit sold.

-The game hit big, but Brunot was unable to keep up with demand. In 1952, sold manufacturing rights to Selchow and Righter (another of the game companies which had originally rejected the idea.)

-In 1986, they sold the rights to Coleco, who then went bankrupt and were bought out by Hasbro

So. . . 80 years and 5 different owners. Seems to me the various trademark laws have done their job in rewarding the original creator and those who helped launch the game into public awareness. Law of the land-wise, I really don't know nor care, but morally it seems to me that Hasbro is saying they're the only company allowed to create and sell the game simply because they happened to be dopey enough buy a stale patent. In my world, the makers of the digital version would be called entrepreneurs, not pirates.

-FL

Turning it around...

[shark72]

I know that sympathies are clearly with the Scrabblicious developers here, so I won't try to argue that point. The feeling in the community appears to be that since the guys aren't selling it and because Scrabble's been on the market for a while, it's fair game for a copy, and no authorization or payment to the rightsholder should be necessary. But, as a thought experiment, what would happen if the situation were reversed?

1. Some independent developer comes up with a totally new game concept and codes it as a Facebook app. It's not something simple, like Sudoku, but a game with distinctive play mechanics, board artwork, and the like.
2. Hasbro (or some similarly large commercial entity) then copies the game and starts making money off of it. Not an "inspired by," and not a new game that is evocative of the Facebook app -- a direct copy, down to the rules and gameboard artwork. They don't seek permission. And, they don't pay the rightsholder -- the independent developer who came up with the game.

I think it's obvious that the consensus Slashdot sympathies would not be with Hasbro.