Slashdot Mirror
Hasbro Sues Makers of Scrabble-Like Scrabulous
Dekortage writes "As today's lawsuit indicates, Hasbro has apparently had enough of Scrabulous, the online word game remarkably similar to Scrabble. Filed in New York, Hasbro's suit is against Rajat and Jayant Agarwalla, brothers from Kolkata, India, and asks the court to remove the Scrabulous application from Facebook, disable the Scrabulous.com web site, and grant damages and attorneys fees to Hasbro. Why did Hasbro tale so long to 'protect' its intellectual property rights in court? They waited 'in deference to the fans' until EA had launched the official Scrabble Facebook app earlier this month. EA's version has netted fewer than ten thousand players, versus Scrabulous' estimated 2.3 million. This was the next logical step for Hasbro after filing DMCA takedown notices against Scrabulous in January."
From the article:
Mr. Blecher said that EA had a âoea brief conversationâ with the Scrabulous creators about working together but that ultimately the company decided it wanted to control the game itself and develop it across various technology platforms.
Too many variables here but one mention of EA and I am ready to judge the whole episode in favor of the Indian brothers. Maybe the Indians opposed the ads? :P
So, what exactly is the precedent here? I didn't think you could copyright the layout of a board game. You could copyright the rule book and trademark the name, but that's about it. I know there are tons of clones of popular games out there (Risk, Monopoly, etc), and they aren't getting sued. So I don't see how Scrabulous is any different....
How about Hasbro makes an application that isn't only available in America and Canada before they spoil our fun?
Scrabulous ... attracts over 600,000 daily users and gives the brothers $25,000 of advertising a month.
[http://www.thetrendwatch.com/2008/01/31/scrabble-vs-scrabulous/]
;)
If you're not selling your app or ads on it, you're likely safe...but IANAL
Yes. There is a serious doubt, at least on one of their claims.
They are raising two basic claims, under trademark law and copyright law. The trademark claim is basically that consumers will be confused into thinking this had something to do with Hasbro. The similarity of the names -- "Scrabble" v. "Scrabulous" doesn't help much. But, changing the name solves that problem.
The harder case for Hasbro is the copyright claim -- games have "thin" copyrights. In general, the only elements that are protected are (a) the text of the instructions and (b) the graphical elements. So, if Scrabulous didn't copy the Scrabble instructions and didn't copy the graphical elements, they should be fine.
Even on the graphical elements, if there are a small number of ways of expressing something, that expression is not protected either. So, for example, you need some way of putting both the point value and letter on each tile. With a small number of ways of doing so, I suspect that the tiles themselves are not protected. It's possible that Scrabulous might be dinged for copying Hasbro's choice of colors for the squares.
I have not played Scrabulous, so I just have no idea how this plays out.
Great blog post at http://www.thelegality.com/archives/11
Actually, Hasbro withdrew their prior lawsuit against Scrabulous *until* such time as it could put its own service up on Facebook. Hasbro's version is now live, and they have recommenced their suit. Ergo, this is new news.
Way to pick the ONE article in the history of /. that is actually *not* a dupe.
Not counting today (July 24th), 5590 days or 15 years, 3 months, 20 days.
Trademarks do not expire, nor is there a strong argument that they should, other than after a company stops selling the product.
The test in trademark law is "likelihood of confusion." Which is to say, if you went up to a man in the street, and said, "We have a game where you spell words using tiles on a crossword like board, and get points for the letters, and it's called Scrabulous" is there a reasonable chance a person might confuse that with Scrabble, the trademarked Hasbro game?
I have to say it sure sounds like yes. And if it's a yes (and depending on how good your lawyers are it doesn't have to be a very strong yes) then the case is pretty clear.
Trademarks don't expire because aside from protecting the company, they are viewed as also protecting the public from being tricked into buying counterfeit goods. Of course, sometimes the public is better off with counterfeit goods, but the law does not take that view.
Has it been over a year since you last donated to the Electronic Frontier Foundation
Scrabble is a noun and a verb as well as a proper noun, and so is allowed. Since it is eight letters long, you are most likely to use up all of your letters spelling it and so you get 50 extra points. Scrabulous is a proper noun and not a real word, so it is not allowed.
I am TheRaven on Soylent News
You can't copyright a game, but you *can* copyright a game board. Scrabulous used the Scabble game board (and that was a big part of why it was successful with existing Scrabble players), so they're probably doomed - it's a genuine old-school copyright violation, no DMCA required.
Socialism: a lie told by totalitarians and believed by fools.
You can't copyright a game, but you *can* copyright a game board.
You also apparently can patent game mechanics.
According to Hasbro, the very name "Scrabulous" infringes the Hasbro trademark, since (they say) it's confusingly similar.
That one might be debatable, but they also claim that scrabulous.com used to have META tags saying things like "free online scrabble". If that's true, then I'd think the case is pretty open-and-shut. I tried to check at archive.org, but it seems the Scrabulous people blocked archive.org from their site. (Hmm, that doesn't exactly reek of good faith, does it?)
Yeah, I doubt Hasbro will get any money out of them. However, Facebook isn't based in India, so the Facebook app will certainly be taken down if Hasbro wins this case, and that's the main thing they appear to want.
"Can you imagine if we we still had to pay royalties to whatever company bought the rights to Shakespeare's estate every time a school drama club wanted to put on Hamlet?"
I wonder. Where do you go to get a script for Hamlet? Wikipedia? Oh, darn, it might, just MIGHT not be accurate.
Or maybe the library. You'll need at least three copies of it, I suspect, to rehearse with. Off to the Xerox...
Actually, the best example of not making a lot of sense to the quick-to-leap, but in the end making some good sense, is the issue of buying sheet music for some of the classic symphonies, say Beethoven's Fifth. Yes, you can still buy it, you are prohibited by copyright from duplicating the music you purchase, and the companies that produce said sheet music do a good business. Why?
Accuracy, allegedly. While Beethoven wrote his symphony a while ago, and is long dead (him, not the music), he did not write an arrangement for every conceivable orchestral configuration. Not even for guitar. So if you want a score, from which to play, you need to find one arranged to your needs, say one without oboe or perhaps for just piano, i dunno.
There are companies out there that do this. Produce scores based on their concept of the original, changes as necessary to accomodate performance or perhaps just current taste, I dunno that either. But they do, and they copyright their expression of the Fifth. And other works as well, I betcha.
Is it copyrightable? Sure. It's your work. Beethoven can't complain any more, and his estate is too far gone.
But we want to hear his music, and that means having a score for it to be played from. And someone has to print that score, in form useful for orchestra, etc. This is good, and probably copyrightable, since if I wanted to publish scores of the Fifth, I would have to go to some effort to find the original score (probably pay the owner for the opportunity to study it and copy it...), arrange it for current prchestra, maintain it, produce copies, so forth. Am I entitled to some compensation for this? Yes. and if so, am I entitled to some protection from others that merely copy my work without any additional effort? I think so.
I know this will rankle some of you, but indeed, merely copying someone's work is pretty cheap. Doing it to avoid the cost of paying them for it is cheap too. Doing it to profit by their effort is theft. Copyright laws don't determine that, they recognize and punish the theft. If you add value somehow, you can make your case that your derivitave work deserves protection also. And then you can compete.
Just my 2cents. After asking my wife how much it cost to purchase performance rights for a Broadway play, I got interested in this. Turns out, there's no such thing as free theatre, if you want the original script.
darn.
deleting the extra space after periods so i can stay relevant, yeah.
You can copyright a game. I remember a few years ago, Hasbro sued Kellogg for having a card matching game on their cereal boxes as part of a Finding Nemo promotion, saying it too closely resembled their Memory card game. Wizards of the Coast even has a patent for "games, published in the form of trading cards, in which a player selects a collection of tradeable elements and uses that set to compete with other players", so any collectible card game has to pay them royalties.
Congratulations, you win today's prize for Worst Bad Car Analogy.
May I suggest you read up on trademark law, with particular reference to the question of whether a mark has to be identical to be considered infringing?
You can copyright a game.
No, you can't. Remember, a game is essentially its rules. You can copyright a description of those rules (maybe, it depends) but you cannot copyright the underlying rules themselves. The rules are a method for playing the game, you see, and that's expressly non-copyrightable subject matter, per 17 USC 102(b). Art associated with the game (e.g. the picture on the box, the shape of the pieces, etc.) can be copyrightable, but again, not to the extent that they're dictated by the rules.
Hasbro sued Kellogg for having a card matching game on their cereal boxes as part of a Finding Nemo promotion, saying it too closely resembled their Memory card game.
Got a link? I'd be interested to see what it was about, specifically.
Wizards of the Coast even has a patent
You can patent games -- it's just another method, after all -- but it requires that the rules are patentable. That means that they have to be novel and nonobvious. For whatever reason, it doesn't seem to happen that often. Besides, since patents expire relatively quickly, it doesn't matter in this case.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
As valid as your point is with respect to Intelectual Property and copyright - they aren't suing someone on the grounds that they are making a word game but because they are trying (at least in Hasbros opinion) to associate with their trademark - which has to be defended or can be lost. If the product still sells under that name for 60 years then why wouldn't they defend it?
Incedentaly the original application for a patent on the game was rejected.
A thistle is a fat salad for an ass's mouth...
You can copyright a game. I remember a few years ago, Hasbro sued Kellogg for having a card matching game on their cereal boxes as part of a Finding Nemo promotion, saying it too closely resembled their Memory card game. Wizards of the Coast even has a patent for "games, published in the form of trading cards...
No, you can't copyright a game. The Kelloggs thing was a trademark claim which was settled out of court so who knows how that would have went. Your other example is a patent issue. I guess it needs to be repeated, once more, that patents, trademarks and copyright are all different things. Kelloggs link
It is not trivial -- the layout of the board is critical to the mechanics of the game.
Why do you imagine copyright law can't apply to it? What makes the design of a game board
special?
You've nailed the problem right there. If the rules dictate the design of the board, then the board is not copyrightable, lest the copyright prevent other people from using the public domain game rules. It's a very open-and-shut application of the merger doctrine. Scenes a faire would get you to the same result as well.
Irrelevant art on a game board -- think of Candyland -- is certainly copyrightable, because it doesn't have a thing to do with the game mechanics. Necessary art on a game board -- think of chess -- is not.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
You can copyright any drawing, painting or other artwork, photograph, etc. Copyright is not limited to text.
Socialism: a lie told by totalitarians and believed by fools.
They can't, because Hasbro doesn't have world-wide rights to scrabble.
In most of the world, they don't.
In the rest of the world, the rights are owned by: J.W. Spear & Sons Limited of Maidenhead, Berkshire, England
They'd rather let the world know you don't F with Hasbro.
Hahaha... this comment reminded me of seeing Transformers when it first came out... dark opening logo, ominous music playing in the background, then slowly, in fade the words: "In Association with HASBRO". Everyone in the theater busted out laughing.
People don't think that all crossword games are Scrabble.
No, not all crossword games, but I think that most people believe that the game with the SCRABBLE mark attached is the game of scrabble, and not merely a SCRABBLE-brand crossword game. Trademarks are really interesting in that if your trademark is really successful, that success is likely to backfire, as your customers begin to associate the good or service itself with the mark. It's an old story. Just look at the massive efforts Xerox has had to undertake for decades to try to avoid this (and it's never been tested, so no one knows if they have succeeded). Scrabble correctly marks their product, but other than that, I don't think they've engaged in the right sort of customer education to keep their mark strong and distinctive, and I think they'll wind up paying the price for it.
How you can find an arbitrary board arrangement and an arbitrary scoring system to be insufficiently original is puzzling, if you'll pardon the pun.
I didn't say it wasn't original, it's just not copyrightable. The rules dictate the arrangement of the board and the scoring system. To play the game in question, you have to have a 15 by 15 grid, with certain specific squares that have certain specific attributes. You can't mix them up without having different rules. Think of basketball: you can't arbitrarily swap the 2-point and 3-point scoring areas while still adhering to the rules; the rules control the arrangement of the playing area. Ditto, the scoring system.
The most I see that's copyrightable here are the color choices on the board. I don't think that the arrangement of letter and point value on the tiles would survive the merger doctrine, however. And since the Scrabulous board doesn't copy the non-grid areas of the regular scrabble board, those parts don't matter. If all they've got on the copyright front are the color choices for the various bonus squares, that seems extremely weak to me. Could be de minimis.
It's quite easy to paint the picture that they're exploiting what they see as a weak mark if they take up your line of reasoning, intentionally supplanting, rather than innovating, improving, or adapting.
If the mark is generic, as I suggest, then it doesn't matter what the motives of the Scrabulous folks are. They're perfectly within their rights to use a non-distinctive mark regardless of the effect on Hasbro. Remember, while copyrights and patents are interested in increasing the scope of human knowledge, trademarks are not. Trademarks don't care about novelty, originality, creativity, etc. It's more practical than that.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
I'm not sure whether the rules explicitly mention a star
Just because it's not in the written copy of the rules as promulgated by Hasbro, doesn't mean that it isn't a rule. All the boards Hasbro makes are identical in layout, and the written rules assume that you'll use one of those boards. Thus, the implicit rule is that that is how the board is arranged. If it didn't matter, why the uniformity? Golf courses are not all identical, so that's a game where the rules don't specify a particular layout, but plenty of other games do, e.g. football. That there are variant rules doesn't mean that the more standard rules are specially protected either. The 'standard' rules for monopoly involve nothing happening on Free Parking, but many variants have that space do something; they're all unprotected.
Besides, the main point is that the arrangement of spaces is a part of the method for playing the game, rather than being a mere decoration that isn't in some way involved with the gameplay. Methods are not copyrightable. That there are alternative methods just makes them uncopyrightable too. Creativity and originality don't matter when the subject matter is not copyrightable in the first place. Methods are only patentable, and any scrabble patent has long since expired. If Hasbro wants to monopolize the method of playing the game, they'll need to invent a whole new set of patentable rules (i.e. novel and nonobvious) and get a patent on them. Whatever game that is, it won't be scrabble, though; we already have scrabble.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
Easy. Just go find the QAID that hangs out in the SUQ by the QANAT. I forget his name, but it starts with QOPH. Anyway, he'll sell you a QAT for just a couple of QINDAR that, like a TRANQ, will help you relax enough to align your QI.
JJ
You can't copyright the aspects of the board that are dictated by the rules ... artwork yes, basic layout no.