The thing is though, that whatever restrictions an author might want to impose on his work, he can only enforce those restrictions with the consent of everyone else. If an author says that no one is allowed to sell used copies of his book, everyone can safely ignore him because the law grants him no power to prevent anyone from doing that. And the law gains its authority from the consent of the governed. We decide for ourselves what laws we are willing to empower the government we create to enact, and what laws are worth enacting or repealing. These laws determine the framework within which the author can translate his choices into actual control. And why would we cause laws to be enacted which are harmful to us, when we can have different laws which benefit us?
Without those laws, all an author can do is decide whether or not to create a work, whether or not to keep it a secret, and if he keeps it a secret, whether or not to destroy it. Once the secret is out (which almost always happens), he's lost control.
Personally, I think that copyright is a good idea, and if implemented properly can be very beneficial for the public. The problem is that the current laws are written to follow the whims of authors, and generally ignore the greater public benefit. If the public can benefit more from limiting some of the choices authors can make with regard to their published work at least (e.g. they can't prevent used copies from being sold, they can't prevent unflattering parodies, they can't prevent bad reviews which quote the work to make the point), then why shouldn't we do that? I don't see any advantage for me from giving authors the power to control such things. And if that's the case, perhaps we should look into other facets of copyright to see if there's anything else that needs fixing.
Why would someone hire you to ghost write a book if they can't get any profit from the actual sale of that book?
Just because there's no copyright on a work doesn't mean that there can be no profit on selling copies of it. Every bookstore I've ever been in stocks copies of public domain works, e.g. Shakespeare plays, Sherlock Holmes stories, which suggests that they and the publishers of those works must make enough to justify doing it. Apparently some people are willing to pay for the tangible copy even if they could get the work fixed within for free elsewhere. Of course, competition between publishers will tend to drive the price down to just above marginal cost, but that's fine as far as the customers are concerned.
Additionally, there are some other advantages a publisher can get in the marketplace which are unrelated to copyright. For example, there is a first mover advantage, where the first publisher to market can capture more business than he otherwise would until his competitors catch up. Shakespeare more or less did this, as his company would perform his plays first, but couldn't really stop other people from copying them (sometimes by means of audience members committing the lines to memory and dictating them later). Authors can take commissions, as well. There tends to be an inverse relation between price and the size of the audience. E.g. a wedding photographer can charge a lot because really no one cares about the photos he takes other than the families involved. But if ten thousand fans of a particular author each pledge a few dollars to get that author to write a book (there are some escrow schemes to make sure of the deliverables on both sides, roughly mirroring the means that authors and publishers already use to avoid either side being cheated) then that may be enough to get him to do it. Some people might not care about the copyright status of their work, because that's not how they plan to make their money (e.g. the work is just a draw for some other thing), or they're not interested in making money at all (much of YouTube).
And of course, the entire system always runs on authors and investors who are unduly optimistic. Remember, most authors are not stars, or even successful, and most works are of no or very little economic value. Copyright can't make works valuable, it just lets the copyright holder monopolize whatever value there is to be had anyway. Thus, a copyright on Gigli or Ishtar, or Heaven's Gate just isn't worth much.
Without copyright, established and popular authors tend to be better off than unknowns, but that's really how it is with copyright as well. And copyright isn't a magic method of getting popular. No one's figured out a perfect method for always making hits that will draw in a huge audience over the short and long term.
There is a likelihood that without the artificial incentive of copyright (or with less of an artificial incentive from reduced copyright) that fewer works will be created and published. That is a loss to the public. But the public gains from being less restricted as to those works. The important thing is to maximize the net public benefit, whether that requires more copyright or less. The effect upon authors and publishers, save for how that interacts with the public benefit, is of no consequence.
No, I disagree. I'm aware of what happened with Night of the Living Dead, and Charade, and several other works. But the notice requirement is important, and does need to be revived.
The idea of copyright is a societal agreement with creators, as a fair method to pay them for contributing to society. Over time, our environment has changed, and the old copyright paradigm is an ill fit for today, and so great is the ill-fitting-ness that a large section of society chooses to ignore it to some extent. Until such a day that we as a society create a new copyright paradigm, that most of us will agree to honor, then we will have lots of legal battles.
Well, I'd say that's nearly right. To be more precise, copyright is a means by which society gives creators a subsidy in order to cause them to create and publish works which they would not have done otherwise. This is done in order to provide a benefit to society. Of course, society also benefits greatly from those works not being restricted, so it is important for copyright to be as minimal in scope and short-lived in duration as possible As it is known from history that there will be a certain amount of creation and publication without copyright, and since the granting of copyright incurs a cost to the public, it is necessary that the public benefit of copyright outweigh the public costs, and that the resulting net public benefit is greater than what we'd have if we had no copyright at all. An ideal copyright system would be one which provided the greatest possible net public benefit.
Frankly, I think this is a great idea, and I think that many people would agree. I don't think that the trouble we're seeing lately is due to dissatisfaction with the underlying idea of copyright. Rather, I think that people are finding that the current copyright bargain is bad for the public. We appear to be granting too many rights for too long a time, and receiving too little public benefit in return. Significantly reducing the term length and scope of copyright would probably do wonders for the public, without seriously reducing the number of works created.
And certainly, it's hard to imagine another rationale for copyright that actually makes sense and doesn't irreconcilably conflict with more important things, such as free speech.
For the reproduction infringement, it is the person who initiated the operation. The provider is generally on the hook for distribution, rather than reproduction. Both are equally infringing.
So no, if someone took over your computer, then you wouldn't be responsible for it (absent some sort of duty to stop that). But since a plaintiff would have no way to know that in advance, you're still likely to have to go to court to prove that it wasn't your doing, should a lawsuit commence. I would not recommend faking this. Like the open WAP defense, a merely reasonable doubt is not enough to get you off the hook. You'd be liable so long as it was found more likely than not (e.g. a 51% chance) that you did it.
Once again, nobody plays the game because of the board layout.
I'm not saying that the arrangement is a draw for players, I'm saying that people who want to play any variation of that game at all, almost always want to play that specific variation that has the arrangement in question. If for no other reason than that's what everyone else plays. If Hasbro had printed up randomly arranged boards over the years, I'm sure that no one would care what the arrangement was. But having popularized one specific arrangement, for the scrabble-playing public, no other will suffice. A competitor who publishes a different arrangement will be at a serious disadvantage, not because people prefer the quality of a Hasbro-manufactured product, but because the arrangement is important to them.
The users making it resemble Scrabble more closely merely reinforces the value and commercial success of Scrabble itself.
No, it undercuts it. The users doing this aren't confusing Scrabble and Wordscraper, and aren't trying to cause others to be confused (as might occur if a build-your-own-purse store allowed people to make their own counterfeits). There is no source confusion here at all; only a desire for absolutely identical gameplay, and thus, the enjoyment of using identical strategies during that play, etc. It indicates that play-related aspects of the games are not source identifiers.
Source identifiers aren't the question in gameboard copyrights
Well, if we're switching back to discussing copyrights from trademarks, then the issue is still related to functionality, but obviously the legal standards and protectable aspects of the board change. Arbitrariness, which you have put much stock in, might be relevant in the trademark side of things, but is irrelevant copyright-wise. Instead, the issue becomes that methods for doing things -- such as how to play a game, or even a very specific variation of a game -- are unprotectable in copyright, and that where a copyright on some related thing -- such as a written description of those rules, or a game board which complies with, and thus also expresses some of, those rules, e.g. grid size, square arrangement -- might imperil the ability of anyone to freely use those uncopyrighted rules, those copyrights fall by the wayside. The idea/expression dichotomy, the merger doctrine, and the scenes a faire doctrine, will all be trotted out, and aside from the color thing discussed earlier, Scrabulous has a great case. Going all the way back to Baker, Hasbro's game set describes the a specific variation of the game of scrabble through written and graphic expressive means (this also happened in Baker, with accounting methods and blank forms), but whatever protection they have on those expressions, it does not prevent someone else from making their own game set following precisely the same rules as described. The problem for Hasbro is that it's basically impossible to make a perfectly compatible board without sharing the same grid size and arrangement. This means that while they may have made creative choices as to the uncopyrightable rules (there will be a 15x15 grid, there will be a triple word square at (0,0), etc.) they employed in their specific implementation of the game, the game board itself does only what those rules demand, and nothing else. That's not a creative expression, and copyright demands creative expression.
even within the context of trademark protection, the further ripping off of the market pioneer provides no evidence that people find Scrabble to be generic--merely desirable.
Who the hell cares about pioneers? There's no patents. And as for desirability, it's not the Scrabble trade dress that these users are after; if they were, Wordscraper, which does not resemble Scrabble in any other way (other than arrangement, when users have laboriously rearranged the board themselves) would not help them. This is not a factory where a buyer can make their own counterfeit good with which to impress their easily-fooled friends. Rea
Yes, but considering that no one buys Scrabble because of the arrangement of its board, this doesn't get you anywhere.
And as I've said, I think this is not the case. Originally there was nothing particularly special about that arrangement as compared with any other which was equally fun to play (all triple word scores would seem a bit boring), I'm sure, but thanks in no small part to Hasbro's efforts, that arrangement has become the one that people want. Not because Hasbro makes it, mind you, but because it has become the standard arrangement.
Indeed, if you're familiar with Vuitton, you see the inquiry (made by the court, by the way, not the jury) contemplates that "arbitrary fixation" you dismiss.
Oh, I'd say I agree with the Vuitton court:
If the particular feature is an important ingredient in the commercial success of the product, the interest in free competition permits its imitation in the absence of a patent or copyright. On the other hand, where the feature or, more aptly, design, is a mere arbitrary embellishment, a form of dress for the goods primarily adopted for purposes of identification and individuality and, hence, unrelated to basic consumer demands in connection with the product, imitation may be forbidden where the requisite showing of secondary meaning is made.... Functional features of a product are features "which constitute the actual benefit that the consumer wishes to purchase, as distinguished from an assurance that a particular entity made, sponsored, or endorsed a product."
The arrangement Hasbro uses wasn't adopted to, and doesn't currently, identify the board as being Hasbro's. It merely causes the board to be a standard scrabble board. Setting aside arguments as to them, the SCRABBLE mark on the margins of the board, and perhaps the coloration of the board, are the indicia of origin.
Functional v. nonfunctional is a factual determination, but if you had continued reading even one sentence, you'd see that the inquiry is a question of law.
I've read the whole case a couple of times, actually. The question of law, as it so often is, is what standard will be used by the fact finder in making his factual determination. That doesn't really relate to what you had objected to, viz. my saying that it was a factual issue whether or not the arrangement is a part of the rules.
If it's not mandated, it's not a rule.
So 'jokers wild' isn't a rule, because it isn't universal? Nonsense. If the game players agree to it, it's a rule. Rules may be very popular (The 'Free Parking' rule in Monopoly), or very obscure (Look at some of the rules for Mornington Crescent) but they're all rules, and barring a patent, free for anyone to use. Hasbro obviously can't "mandate" a rule. If I and my co-players agree that Qs can be played as QUs, what is Hasbro going to do, shoot us? All they can do is endorse a particular set of rules. Others, finding those rules agreeable, may endorse them as well; otherwise, not.
As for the version of scrabble Hasbro publishes, the uniformity of the board, its ever-present inclusion in their scrabble sets, and the rules they endorse, referencing "the board," all indicate that their rules assume a board of that arrangement, and no other.
Moreover, note the new game launched to defuse the situation: the gameboard reproduction is now gone. They've read the case law, understood it better than you have, and see prospects too dim to pursue the matter.
Well, I haven't heard that they've actually settled. Instead, what I see is an attempt to avoid a temporary injunction. All the things that Hasbro can complain about are missing, and so life can continue. A judge is not going to tell them that they cannot even be non-infringing. Given that I would have advised Scrabulous to tread more lightly in the first place, and would have advised them to do something like this now that the case has begun, I'd say my understanding is pretty good.
No. That's not what effective competition means, even if you could point to any evidence of such a preference. I know of no one who plays Scrabble because of the arrangement of the board and who would refuse to play a variant with a different arrangement, and I know of no court that would receive such an assertion without a fit of laughter. Effective competition does not mean equal popularity.
I'm thinking mainly of the cases following Vuitton that the functional features of a product are the features that are the thing the customer wishes to purchase, rather than mere source indicators. It doesn't matter whether there is an alternative, or whether customers have fixated on that feature arbitrarily. The leagues standardizing on the Hasbro version of the game indicates that they want to play that version, and not some other version, for whatever reason. That doesn't mean that they want to play only copies of that version which are also manufactured by Hasbro, however.
I've seen nothing to suggest that Scrabble's popularity is based on its board arrangement.
The popularity was initially based on the overall gameplay itself, I'm sure. I doubt that anyone ever said that they played the game to satisfy a need for triple word scores in the corners or something. However, with the passage of time, what wound up being popular was not any sort of scrabble, with any sort of arrangement, but that specific version, and only that version. When people want to play scrabble, they want to play the variant of scrabble popularized by Hasbro, and no other. Again, league preferences are evidence of this.
It's not a factual issue. The jury doesn't decide what is or is not functional.
Yes, you're right of course. The court in Sega v. Accolade agrees with you: The question whether a product feature is functional is a question of fact. Oh, wait.
The inventor and manufacturer prescribe no such rule. Period. Mere description is not a rule.
Just because a rule isn't written down formally, but is expressed by other means (such as standard placement on the game board) doesn't make it less of a rule. And frankly, I'd be hard pressed to explain an omnipresent, unchanging, gameplay feature of a decades-old game if it wasn't a rule. It's hardly mere decoration.
Sure it is. Okay, look: A feature is functional if it there is a need to in order for effective competition, yes? And we're in agreement that Scrabulous certainly could make some form of scrabble game with a different arrangement and which otherwise was the same basic game. But were Scrabulous to do that, they could not effectively compete with Hasbro, because the overwhelming majority of the players of that game have a preferred arrangement, namely Hasbro's. Hasbro's standardization of that layout, and the various league endorsements of that layout, serve to confirm this. Competition is hindered if no one else can make the one board arrangement that people apparently want to play. It doesn't matter that it's arbitrary; the 100 yard length of a football field is equally arbitrary, but few if any people in the US play Canadian football.
This besides the point that the arrangement _is_ a part of the rules. But that is yet another factual issue where I think we'll have to agree to disagree and wait for it to be determined by a jury.
Descriptions that are prescribed for uniformity in a league are not rules.
Not just the league; also the inventor and manufacturer. If the arrangement wasn't important for play, why has it never changed?
Many games have more than one. Poker and solitaire immediately spring to mind.
And there is zero authority indicating that the special squares are functional.
In the Pac-Man case, the dots were functional as a means of keeping score and indicating progress toward completion of the level.
the hybridized analysis about functionality in a copyright context
There's nothing odd about concern for functional elements in copyright. The idea/expression dichotomy, the merger doctrine, the scenes a faire doctrine, and the utility doctrine are all deeply concerned with not allowing a copyright holder to monopolize functionality. The rationale is the same as for trademarks; while a single object may embody patentable, copyrightable, and trademarkable aspects, these three forms of protection do not actually overlap.
a definition of functionality that leaves no room for anything to fall outside of it
Did you miss the part where I said that the color scheme was creative and not functional? Copying it might be de minimis (though I wouldn't bet on it), but it certainly isn't necessary to play the game in a fashion that is functionally identical with Hasbro's version. Frankly, the Scrabble board is really sparse. Candyland has a lot of copyrightable materials on their board. Monopoly has a few (though, not the arrangement, that's unoriginal). Battleship has basically nothing, IIRC. Some of the less classic games, like Mousetrap (setting aside utility doctrine issues for the moment) seem extremely copyrightable. Scrabble, as implemented, just doesn't seem like it has a whole lot going for it on the copyright front.
You can make no argument that competition would be burdened by protecting Hasbro's arbitrary arrangement.
It's impossible to make a board that can be used under the unprotectable rules Hasbro endorses, or the various leagues endorse, without using that arrangement. Giving Hasbro protection in that arrangement would effectively give it a monopoly over the precise set of rules it uses. I smell merger. That the rules are arbitrary doesn't matter.
Scrabble itself can be played with a different arrangement.
The availability of alternative designs is insufficient to prove nonfunctionality. And anyway, while other variants of Scrabble can be played with a different arrangement, not all variants can be. You cannot play 'standard' chess with a different starting arrangement of pieces, you cannot play 'standard' baseball with a trapezoidal infield, and you cannot play 'standard' scrabble without the special squares arranged as Hasbro has. So what if 'nonstandard' versions of these games exist?
If I paint lines for hockey in orange and green for Irish pride, I can play hockey fully. I may not be able to offer my venue for a particular league, but this is immaterial to playing the game itself.
You can play hockey, alright, just not the NHL version of hockey, which is rather fussy. But if you decide to paint your lines red and blue (go Haiti!) the NHL cannot stop you merely because they arbitrarily chose it, because they require it.
integrating extraneous regulations imposed by leagues with the rules of the game itself.
But again, 'the' rules are all the rules. There are no platonic rules. You cannot point at a subset of all the possible rules for a game and say that those are 'the' rules, as you have been doing. Some rules may be more popular than others, some rules may be endorsed by different players, but they're all equally valid rules in the end.
The only suit I'm aware of is a trademark one, which is outside the scope of the gameboard entirely. (Scarabeo is Scrabble in Italian).
From the little I've seen, it appeared to at least look at the game mechanics, as well as the name. And Scrabble is a separate game; Mattel, I believe, makes the Italian version of Scrabble, while Editrice Giochi publishes Scarabeo.
League rules, however, are not rules of the game
We do not live in some platonic world where there is a master set of perfect rules for any game. All rules are equally valid, with varying authorities endorsing them or not, as they see fit. If you want to play a game with someone, you will have to come to some agreement on what set of rules to use. But any set of mutually agreed-upon rules are fine. Some people may form a league and promulgate rules that way. Some people may publish copies of a game and include the rules that they endorse (see e.g. Parker Brothers' treatment of the Free Parking square in Monopoly) but none of these are THE rules from which all else are deviations. The most common and popular and widely-endorsed and first variation of a game is still just a variation, like all the others.
The Midway Pac-Man et al. case comes to mind.
Hm. I recall a Pac-Man case (there've been a few) in the 7th Cir. where there was copyright infringement on the appearance of the sprites, but that the board wasn't infringing barring virtually identical copying. Which we might see here in the case of the colors, being protectable, creative choices, but not for the grid (as you've agreed), or the functional special squares, IMO.
Trivial Pursuit also won a challenge.
I can see that. Haven't seen the case, though.
I believe Monopoly (also a Hasbro property) has also sued successfully.
When? They lost badly in the Anti-Monopoly case, with the revelation that they didn't even originate the game (just some of the art; not even the selection and arrangement of property names, IIRC), and their trademark was in grave jeopardy until Congress intervened. There was the recent Ghettopoly case, but didn't the defendant there lose by means of pissing off the judge into ordering a default judgment, rather than on the merits?
You seem to be forgetting the Fruehauf linchpin, or else are not as familiar with this area of law as you claim to be: "The crucial consideration is whether protection against imitation of the design feature will hinder effective competition."
Well, we've gotten away from the copyrightability of the board, but sure, provided that we're talking about non-functional elements. If the arrangement of special squares isn't required by any rules, then that, along with the colors, would certainly seem to support actions for copyright and trade dress. No argument from me there. But that doesn't answer whether or not the arrangement is functional or not! (The colors, as I've said before, seem protectable; Scrabulous was foolish to copy those) Hell, the plaintiff in that case even agreed that functional elements could be copied freely. It's just that the design turned out to be not all that functional.
I really don't see what point you were trying to make. I think we're in agreement as to the law, it's the facts that we're bickering over.
Because Scrabble can be played with a different arrangement of "special squares" without changing any of the rules of the game, there can be no credible argument that a different configuration will hinder competition at all.
_A_ version of scrabble can certainly be played with a different arrangement of special squares. In fact, there's surely a nigh-infinite number of possible versions of the game, with all kinds of boards, each more different than the last. But no version of the game itself is protectable by means of copyright or trademark. The Hasbro-endorsed version of the game is just as open to competition as any other, and that means the square arrangement is fair game.
You are trying to transform copyrights and trademarks into patents, and I predict failure.
Can you identify an unauthorized, commercially distributed board other than the one in the instant dispute?
There's a number of online versions, often with similar names like Yabble or Wabble. I remember one from the late 90's -- I'll be damned if I can remember the name -- where many games would run simultaneously, and players would only get to play one turn before being sent off to another instance of the game. Altus might remember it, but I think he's offline this weekend.
In the real world, Scarabeo is the closest thing I could find in the ~2 minutes of googling I'm willing to bother with. There's a slight difference: 17x17 instead of 15x15, but the layout of special squares is the same, mutatis mutandis, and 8 tiles in a hand instead of 7. Apparently they got sued back in the 50's for obvious reasons, but won their case.
There is no "rule" that says special squares must be at specific locations, except that there must be a center square. There is no "rule" that says you cannot play on a board of different dimensions.
So it's just a big coincidence that the vast majority of scrabble boards are 15x15 with that specific layout? Dubious. Baseball puts the bases at specific spots. Basketball, croquet, hockey, tennis, all likewise have specific requirements. And besides, what you just stated is inconsistent. First, because if there's no requirement for special squares to be in specific locations, why would there be a requirement that the starting square be in the center? Second, if there has to be a center square, then you can't have an even number of squares in either dimension, which conflicts with your claim that the board can be of any size without effecting the rules. Which again, is something that some games would take issue with, e.g. American and Canadian football.
Part of the rules of a game involve the starting conditions of the game: setting up a playing area that is agreeable to the players and complies with the rules they are going to play under.
Again, the rule is that the word be valid in the agreed-upon dictionary. The choice of dictionary is not a rule. External rules applied for league conformity are not rules of the game, they're rules of the league.
As I've said, I've no idea how the dictionary thing will play out. However, as for league rules, they're still rules. Rules are uncopyrightable wherever they happen to be found, and regardless of originality or creativity.
It contains an operational rule and a description of their gameplay surface. The description is not a rule of the game, but merely an indication of what a play can expect in that implementation.
The surface is just a graphic description (as well as a convenient thing to play on) of the rule that places triple word squares at (0,0), (0,7), (0,15), etc. That it's a diagram instead of written out doesn't matter. The cheapest of cheap sets could just include a pamphlet of written instructions, with the expectation that players would draw their own board on a piece of paper, randomly choose the tiles in their hands, and then write their plays down on the paper. It would be even more primitive than Arthur Dent's set, but it would suffice. Anyway, it's like chess, which has rules for where certain things go on when you set up the board (not special squares, but the pieces). You couldn't play an ordinary game of chess with your king backed into a corner, and surrounded by a triangular arrangement of pawns and rooks. A variant, yes, but not the standard game.
No game board arising from a unique origination as a commercial property has ever, to my knowledge, been found to be not copyrightable.
Oh, it's a copyrightable board, just not in its working portions, which is all we're concerned with here. The margins (and I suspect the color choices) are where the copyrightable elements are to be found. Come to think of it, I wonder if cases involving blank forms might be instructive to look at. Anyhow, the scrabble board seems quite sparse for a board g
They don't have to fully compensate you for the loss. They pay you whatever they want and too bad if it isn't fair to the person having their property taken away.
No, that's not at all true. They are obligated to pay you just compensation (see e.g. the Fifth Amendment), and in the event of a dispute between the state and the property owner, the amount is determined by a court. Usually each side brings in experts who have assessed the value of the property, and a jury decides what the value is based on that testimony. Feel free to look into it; you'll find that I know what I'm talking about. There's a lot of furor about the idea that the government can condemn property -- and you usually can't stop them from doing that -- but people seem to be ignoring the just compensation requirement, which really is in there.
And civil forfeiture doesn't work like that either. If you get found with lots of cash on you, they can just take it away from you. You then have to go to court and prove that you didn't earn it criminally.
Yes, that's more or less like being arrested. The money is impounded until it's gone through the legal system, much like someone can be arrested before being convicted.
Scrabble not being one of [the games with rules as to the layout of the playing surface], it does not matter.
The evidence seems to indicate otherwise. All the scrabble boards I've ever seen are uniform in layout. If the rules didn't require a uniform board, why would that be? You could have a variant board that didn't, of course, but then you would have changed the rules somewhat, just like if you played chess on a 9x9 board. Your assertions don't change the observable fact that scrabble, as played under the most common set of rules, require a standard board.
If the game's rules can be implemented on a board of a different configuration, the board is not a rule.
So you're saying that whenever a rule is not universal, it's not a rule? That's not true. It just means that there are alternate sets of rules. Since they're all rules, they're all uncopyrightable, regardless of popularity. Think of the designated hitter rule: it's a rule in the AL, and not a rule in the NL. Does that mean that it's not a rule, because you can play baseball without it? Of course not!
Arrangement of squares is not functional on any reading of the term I've ever encountered.
You need it to play the game according to the most common set of rules. A different arrangement would make for a different variant of scrabble.
There is no other Scrabble.
There are a couple of different scrabbles, actually, depending on the choice of dictionary (since that lists the valid moves, like playing chess with or without the rule that allows castling).
The rules of Quake do not depend on the level maps. The rules of golf do not depend on a particular course.
I agree, and I've said as much earlier. Not all games have rules that specify their playing areas. Golf doesn't. Football does. Chess does. Scrabble apparently does too.
Well, no. When a government takes property under its eminent domain power, it has to compensate the owner for the loss. So if they took a piece of land from you that was valued at $1 million, they'd have to pay you $1 million. And if you thought it was worth more, and disagreed with their valuation, you could take them to court to try to get more. (This routinely happens)
None of that applies in civil asset forfeiture. The government does have to bring a civil action, but it's much easier for them than a criminal trial would be, and if they succeed, they don't have to pay the owner compensation.
I think you'll find that Madison, along with a number of other people, wrote the US Constitution. Jefferson didn't directly participate (though he corresponded with Madison; they were friends) as he was our ambassador to France at the time.
that case is best understood in the context of software which is at the intersection of expressive content and functional mechanisms. In my view it is a phenomenal stretch to extrapolate it to the case of a game board at all
Why? Games, like the functional parts of software, are uncopyrightable because both are the same sort of uncopyrightable subject matter. Playing a game -- this sort of game, at least -- is basically plugging some inputs into an algorithm, and everyone has a good time until the loser walks away in a huff. And Altai has shown up in other contexts. I remember seeing it in an architectural case some years ago, for example. The general point it makes of showing how to separate copyrightable and uncopyrightable elements is universally applicable.
The game board is part of the functional apparatus. For some games, the rules of the game will totally dictate the nature of the playing surface. Chess wants an 8x8 grid. Alternate rules may exist for a different grid, or shape, or whatnot, but that doesn't make the first set of rules something other than rules. If there were no rule at all, the board could be any random thing, and it wouldn't matter. I must confess, I can't think of any board games that have absolutely no rules vis-a-vis the board. Tic-tac-toe on an infinitely large surface with an irregular or entirely absent set of lines, maybe? That would be weird to play.
Anyway, first, Scrabulous only copied part of the board: the area comprising the grid, and its contents. The elements around the grid on Hasbro's board probably do include some copyrightable elements, but since they weren't copied, they're not relevant here. The 15x15 grid is required to play Hasbro's version of the game, and so is dictated by a rule. It's not copyrightable. Again, that other rules could exist doesn't negate the rule-ness of Hasbro's rule, nor its uncopyrightability. Even creative, original rules are not copyrightable subject matter.
The placement of the special squares also seems to be rule-based. Imagine baseball or billiards with the bases or holes rearranged. You could play it, but it would not conform to the standard rules.
It is the colors of the squares that seem to me to the only possible copyrightable elements in play. It could be argued that they have to be those colors, just like the MLB rules for baseball require a white ball, or apparently the NHL rules for hockey require certain colors for the lines in the rink. But even I find that dubious. Probably the colors don't matter, so long as the players can distinguish those squares from the others. That leaves Scrabulous having to argue merger (because there's only so many colors available; probably not a winning argument), or de minimis copying (because even though they copied the colors, the colors standing alone (the rest of the part of the board in question being uncopyrightable) are too little to support an infringement action). That's not a fun argument to make, but it is a viable one, and it has at least some chance of success, however slim.
As I mentioned elsewhere, most of us have been ignoring the really big instance of copying though. Ignore the game board, what about the dictionary? That's the biggie. There was certainly some creativity used in compiling it. OTOH, could the rule argument be used against that? After all, the dictionary defines -- no pun intended -- all the possible valid moves, and is functionally necessary. I would not relish having to be on either side in that argument. I have no idea who would win.
This seems to have drifted from the point: dice are not marketed by trademark. I doubt if anyone could identify for you a single manufacturer of dice without research.
Well, when I was younger, I used to play D&D. There are actually some very distinctive dice out there, and people who pay attention to such matters, order directly from the manufacturer, etc. But most dice are utterly generic; most people don't care. Though I'm sure you understand about the difference between the general public and the relevant consumers.
If I make my own custom board with a different arrangement of "special" squares, the rules of the game can still be obeyed fully.
We seem to be in disagreement as to what the rules consist of. Certainly some games have rules that specify the arrangement of elements on the playing surface. Baseball requires that there be three bases, home plate, and a pitcher's mound, and that they be arranged in a very specific way. You could play a variant of baseball, with slightly different rules, in which you ran clockwise around the bases, or where the bases were arranged in a parallelogram or something. But that would just mean that there were two sets of rules regarding arrangement, not that neither set of rules addressed it.
No rules, or variants of rules (which are still rules) can be copyrighted, ever. If Hasbro's version of scrabble requires a certain arrangement of the board, then why would that not be a rule? That the board is the expression of the rule, rather than it being printed in black and white on the piece of paper that comes in the box, is inconsequential. Wherever, or however, the rule is expressed, it's still uncopyrightable subject matter.
anyone is free to use a Scrabble board--but you're not talking about use, or even personal reproduction. You're talking about commercial reproduction and distribution, not making it available for all.
The public is nevertheless better served by having multiple sources for public domain materials than only one. The sources can compete against each other, with beneficial effects for the public. Even here, it appears that Scrabulous exists to fill a niche that Hasbro was ignoring, but at least some of the market wanted filled. And the commercial issue is a red herring. Public domain works can be, and routinely are, commercially exploited. It's nice when a publisher of a public domain work is charitable (e.g. the Gutenberg Project) but it isn't required (e.g. Penguin paperbacks of everything from Chaucer to Shaw).
You're arguing out of context. There is never a need for material under copyright. While a patent may prevent an important product from reaching its greatest potential if no one can come up with an alternate method, works under copyright are always distinctive and arbitrary. There is never a need for a painting to be available to all; this should appear eminently obvious, since most work is never reproduced and never seen by society as a whole. A compelling desire, and a fair price for statutory protection, absolutely. A need, absolutely not.
First, "distinctive and arbitrary" are irrelevant terms for copyright, which is concerned with originality, creativity, and fixation, of works of authorship, and little else. A work can be utterly derivative and bland and constrained by rules -- very bad poetry, say -- but still be copyrightable. I think you've got trademarks on the brain.
Second, piffle. There's never a need for an invention either; there's always some alternative, and the need is never that great. I'd love to have a cold fusion reactor and a teleporter, but life goes on without them. Society has a desire for ever more novel, nonobvious, useful inventions, so we have patents to get more made. But we equally desire those inventions be in the public domain so that there are no artificial restrictions on the use of those inventions by anyone, in any way. Ditto for copyrights: we have them to incentivize creation, but having works at hand, we want those works for fre
On the contrary, generic games benefit from many suppliers, but only to the extent that there is variation
I disagree. Sure, I can get fancy dice (dice can be a game all by themselves) with an unusual number of sides, or fancy designs, or made out of odd materials. But I'd be willing to bet that the vast majority of dice manufactured and sold are extremely plain and interchangeable. The market benefits from having all manner of dice and manufacturers competing, lowering prices, serving niches, etc.
Bayer produces a functional product and deals in patents. Don't conflate the analysis.
First, games are functional products, which can only be protected by patents. Only non-functional parts of games, like the art on the box, are copyrightable. Names can be trademarked, provided that they're source identifiers for a particular copy of the game, but the name of the game itself is not distinctive.
Second, the most basic, fundamental rationale for the public domain is the same for copyrights and patents. Works and inventions are most valuable to the public when they are free for all to use.
There is frankly never a need to have free access to copyrighted material.
You can't seriously believe that. There is always a need to have free access to copyrighted materials, which is why we have the copyrights expire! Only with public domain works can we fully promote the progress of science by letting anyone who wishes use the work as they please, copy it, make derivatives based on it, perform or display it, and distribute copies to others. If those things were not so valuable, granting a monopoly over them wouldn't be worth all that much. The government can offer a carrot to authors with a reproduction right, since everyone would like to copy the work themselves. A 'getting hit over the head with a copy' right wouldn't be much of a carrot; there's no demand.
They would be against the tournament rules
Which are just another set of rules. No rules, no matter how popular or unpopular, no matter how creative or uninspired, how distinctive or generic, are ever, ever, ever copyrightable. All rules are merely methods for playing the game, and methods are uncopyrightable subject matter.
Lawful, but clearly opportunistic and blatant, reproduction naturally colors the view
That's decidedly unjust. I suppose you would be willing to condemn the most despicable man alive, regardless of his actual innocence?
Meanwhile, I had a few spare minutes at work today, so I read the complaint that Hasbro filed. Pretty standard stuff (though their description of the game strikes me as bolstering my the-board-is-functional argument). But there was something there that I had completely forgotten about. No big surprise, I've only played scrabble a few times (I prefer Trivial Pursuit). But I haven't seen it mentioned much elsewhere either. Apparently, Scrabulous also copied the official dictionary!
I don't even want to guess how that will resolve itself. On the one hand, the dictionary as a compilation has at least some creativity in the selection of words, though probably not the arrangement. On the other hand, the dictionary is just a list of all the possible valid moves in the game, and could arguably be thought of as another, albeit weirdly-expressed, rule. Imagine that instead of the rules of chess being presented in their usual fashion, e.g. bishops move diagonally, you instead were just given a book of all the valid, possible individual moves, e.g. a bishop at QB1 is allowed to move to Q2, K3, etc. A standard dictionary is so essential to playing this game, that it might be unprotectable as a result.
I certainly wouldn't want to have to make either argument on that issue. But I hope that Scrabulous makes a fight out of it. This could be a really juicy case.
That's a bad example - the game is actually called "Scrabble", so the fact that they think that's what it's called is irrelevant.
I think that what you're missing here is that, in order to be protectable, trademarks cannot be goods identifiers, but instead must be source identifiers. For example, COKE-brand soda is soda that comes from the Coca-Cola company; the stuff in the bottle, however, is soda, not "coke." If people use 'coke' as a synonym for soda from other manufacturers, then the mark is no longer serves to distinguish COKE-brand soda from other, unrelated sodas. Trademarks are only protectable if they are distinctive of a common origin for all so-marked goods.
Xerox has been fighting a (probably losing) battle against genericide for decades now. Whenever members of the public refer to non XEROX-brand photocopiers as xerox machines, it chips away a little at the XEROX trademark. They actually run ads that chide people for misusing their mark, and instruct people as to how to use it in a way that preserves Xerox's rights. My favorite is the one that goes 'You can't xerox a xerox on the xerox,' which complained about xerox as a verb, the noun xerox referring to xerographic reproductions, and the noun xerox referring to photocopiers. Wikipedia has a nice list of generic and at-risk marks, if you're interested.
Since it is the public perception of the mark, and whether the relevant segment of the public that believes the mark is distinctive of a particular source or not, which is controlling, it's anything but irrelevant.
So if people think that the game that Hasbro makes is "scrabble," and that the same game, from any other source, would also be "scrabble" (just as chess is chess, regardless of which company you get a chess set from), then the mark is no longer a functioning, protected trademark. Hasbro knows this, which is why what it says on the box is SCRABBLE Crossword Game. SCRABBLE is the brand, so you know whose crossword game you've got. "Crossword game" is what the game is actually called, however.
THERMOS sold vacuum flasks, but when "thermos" and "vacuum flask" became synonyms, THERMOS died as a trademark. SCRABBLE strikes me as being at risk. It will take a properly designed and conducted survey to serve as evidence, however. All we can do here is guess.
A better test would be a different crossword game, like maybe UpWords
I'm not familiar with that one. Is the gameplay -- which is not protected by copyrights or trademarks -- identical to scrabble? We're not talking about vaguely similar games, like football and rugby. We're talking about the exact same game, from different manufacturers. Is SCRABBLE indicative of the game coming from a particular factory, like how TROPICANA and MINUTE MAID are two different trademarks for orange juice, or how LEVI'S and JORDACHE are for jeans, or is that the name of the game, from whatever source?
obviously people are going to refer to a game by its name
No one ever said it was easy to get and keep a trademark. Remember the kerfuffle a few years back, when Google got upset that a dictionary was listing 'google' as a verb?
The particular thing, the board, is an image. Images are protected. There has been some creative choice in the layout of the image and this will make the image an original work of somebody. It will therefore be protected by copyright. It doesn't matter that it may also be part of some set of rules.
Well, sort of. While a work may be copyrightable as a whole, it is not uncommon to see works which are only copyrightable in part. For example, a novel that mentioned that Columbus sailed to the Americas in 1492, and which had a reproduction of a historical painting of Columbus, would be copyrightable except for those parts. Facts, and other public domain materials aren't copyrightable. Anyone could appropriate those parts and do as they pleased with them. Their appearance in the otherwise copyrightable novel doesn't cause them to be brought under the novel's copyright. A work that only consists of uncopyrightable elements (e.g. the white pages part of the phone book) is going to have a hard time of being copyrightable at all. Another sort of uncopyrightable element are the ideas that underlie a work. The expression of those ideas may be copyrightable, but not the ideas themselves. An example of this would be the plot of Hamlet (ignore that it's a public domain work anyway). If that plot shows up in a movie (Strange Brew), or a musical (the stage version of The Lion King), or some other retelling, the plot remains unprotectable. Anyone can use the plot, and it can be copied from any source, not just the one from which it originates. It's only the way the work expresses the plot (e.g. specific lines of dialog) that could be protectable. And since it is more important for the idea to be unprotected, than for the expression to be protected, in cases where there are few ways to express an idea, or where the functional concerns of the idea demand that the expression be a particular way, then those expressions are less likely to be copyrightable. And note that methods of doing things are uncopyrightable; you could write a book teaching readers how to do double-entry bookkeeping, and get a copyright for your particular explanation, but you couldn't copyright the actual method of bookkeeping you describe. Which means that anyone can read your book, learn your system, and write their own book explaining it, and not infringe on your copyright.
Here, it seems that the game rules dictate a particular size and configuration of the board, just as the rules of many other games often have requirements for their playing surfaces (e.g. the rules of chess require an 8x8 board; baseball requires the bases and home plate to be in counterclockwise order (imagine having to run past second to get to first, then backtracking to second, then past first to get to third!), a certain distance apart, in a certain shape, etc.). So if those things originate from the rules, and lack creativity due to their functionality in playing the game, then those aspects of the board are not copyrightable. Decorative elements of the board that are not mandated by the rules (the color scheme, perhaps) could be copyrightable, provided that they met the requirements for originality, creativity, etc.
That a work is original is certainly necessary for you to claim a copyright on it, but originality isn't enough by itself. Non-copyrightable subject matter -- such as game rules, whether expressed in a booklet, or in the form of a playing surface -- aren't copyrightable, however original they may happen to be.
While it doesn't have to do with games, per se, Computer Associates v. Altai is a good case for looking at what parts of works (in this case software) are copyrightable, when functional concerns have informed the writing of those works. You may enjoy reading it.
Slashdot Mirror
The thing is though, that whatever restrictions an author might want to impose on his work, he can only enforce those restrictions with the consent of everyone else. If an author says that no one is allowed to sell used copies of his book, everyone can safely ignore him because the law grants him no power to prevent anyone from doing that. And the law gains its authority from the consent of the governed. We decide for ourselves what laws we are willing to empower the government we create to enact, and what laws are worth enacting or repealing. These laws determine the framework within which the author can translate his choices into actual control. And why would we cause laws to be enacted which are harmful to us, when we can have different laws which benefit us?
Without those laws, all an author can do is decide whether or not to create a work, whether or not to keep it a secret, and if he keeps it a secret, whether or not to destroy it. Once the secret is out (which almost always happens), he's lost control.
Personally, I think that copyright is a good idea, and if implemented properly can be very beneficial for the public. The problem is that the current laws are written to follow the whims of authors, and generally ignore the greater public benefit. If the public can benefit more from limiting some of the choices authors can make with regard to their published work at least (e.g. they can't prevent used copies from being sold, they can't prevent unflattering parodies, they can't prevent bad reviews which quote the work to make the point), then why shouldn't we do that? I don't see any advantage for me from giving authors the power to control such things. And if that's the case, perhaps we should look into other facets of copyright to see if there's anything else that needs fixing.
Why would someone hire you to ghost write a book if they can't get any profit from the actual sale of that book?
Just because there's no copyright on a work doesn't mean that there can be no profit on selling copies of it. Every bookstore I've ever been in stocks copies of public domain works, e.g. Shakespeare plays, Sherlock Holmes stories, which suggests that they and the publishers of those works must make enough to justify doing it. Apparently some people are willing to pay for the tangible copy even if they could get the work fixed within for free elsewhere. Of course, competition between publishers will tend to drive the price down to just above marginal cost, but that's fine as far as the customers are concerned.
Additionally, there are some other advantages a publisher can get in the marketplace which are unrelated to copyright. For example, there is a first mover advantage, where the first publisher to market can capture more business than he otherwise would until his competitors catch up. Shakespeare more or less did this, as his company would perform his plays first, but couldn't really stop other people from copying them (sometimes by means of audience members committing the lines to memory and dictating them later). Authors can take commissions, as well. There tends to be an inverse relation between price and the size of the audience. E.g. a wedding photographer can charge a lot because really no one cares about the photos he takes other than the families involved. But if ten thousand fans of a particular author each pledge a few dollars to get that author to write a book (there are some escrow schemes to make sure of the deliverables on both sides, roughly mirroring the means that authors and publishers already use to avoid either side being cheated) then that may be enough to get him to do it. Some people might not care about the copyright status of their work, because that's not how they plan to make their money (e.g. the work is just a draw for some other thing), or they're not interested in making money at all (much of YouTube).
And of course, the entire system always runs on authors and investors who are unduly optimistic. Remember, most authors are not stars, or even successful, and most works are of no or very little economic value. Copyright can't make works valuable, it just lets the copyright holder monopolize whatever value there is to be had anyway. Thus, a copyright on Gigli or Ishtar, or Heaven's Gate just isn't worth much.
Without copyright, established and popular authors tend to be better off than unknowns, but that's really how it is with copyright as well. And copyright isn't a magic method of getting popular. No one's figured out a perfect method for always making hits that will draw in a huge audience over the short and long term.
There is a likelihood that without the artificial incentive of copyright (or with less of an artificial incentive from reduced copyright) that fewer works will be created and published. That is a loss to the public. But the public gains from being less restricted as to those works. The important thing is to maximize the net public benefit, whether that requires more copyright or less. The effect upon authors and publishers, save for how that interacts with the public benefit, is of no consequence.
No, I disagree. I'm aware of what happened with Night of the Living Dead, and Charade, and several other works. But the notice requirement is important, and does need to be revived.
The idea of copyright is a societal agreement with creators, as a fair method to pay them for contributing to society. Over time, our environment has changed, and the old copyright paradigm is an ill fit for today, and so great is the ill-fitting-ness that a large section of society chooses to ignore it to some extent. Until such a day that we as a society create a new copyright paradigm, that most of us will agree to honor, then we will have lots of legal battles.
Well, I'd say that's nearly right. To be more precise, copyright is a means by which society gives creators a subsidy in order to cause them to create and publish works which they would not have done otherwise. This is done in order to provide a benefit to society. Of course, society also benefits greatly from those works not being restricted, so it is important for copyright to be as minimal in scope and short-lived in duration as possible As it is known from history that there will be a certain amount of creation and publication without copyright, and since the granting of copyright incurs a cost to the public, it is necessary that the public benefit of copyright outweigh the public costs, and that the resulting net public benefit is greater than what we'd have if we had no copyright at all. An ideal copyright system would be one which provided the greatest possible net public benefit.
Frankly, I think this is a great idea, and I think that many people would agree. I don't think that the trouble we're seeing lately is due to dissatisfaction with the underlying idea of copyright. Rather, I think that people are finding that the current copyright bargain is bad for the public. We appear to be granting too many rights for too long a time, and receiving too little public benefit in return. Significantly reducing the term length and scope of copyright would probably do wonders for the public, without seriously reducing the number of works created.
And certainly, it's hard to imagine another rationale for copyright that actually makes sense and doesn't irreconcilably conflict with more important things, such as free speech.
For the reproduction infringement, it is the person who initiated the operation. The provider is generally on the hook for distribution, rather than reproduction. Both are equally infringing.
So no, if someone took over your computer, then you wouldn't be responsible for it (absent some sort of duty to stop that). But since a plaintiff would have no way to know that in advance, you're still likely to have to go to court to prove that it wasn't your doing, should a lawsuit commence. I would not recommend faking this. Like the open WAP defense, a merely reasonable doubt is not enough to get you off the hook. You'd be liable so long as it was found more likely than not (e.g. a 51% chance) that you did it.
Once again, nobody plays the game because of the board layout.
I'm not saying that the arrangement is a draw for players, I'm saying that people who want to play any variation of that game at all, almost always want to play that specific variation that has the arrangement in question. If for no other reason than that's what everyone else plays. If Hasbro had printed up randomly arranged boards over the years, I'm sure that no one would care what the arrangement was. But having popularized one specific arrangement, for the scrabble-playing public, no other will suffice. A competitor who publishes a different arrangement will be at a serious disadvantage, not because people prefer the quality of a Hasbro-manufactured product, but because the arrangement is important to them.
The users making it resemble Scrabble more closely merely reinforces the value and commercial success of Scrabble itself.
No, it undercuts it. The users doing this aren't confusing Scrabble and Wordscraper, and aren't trying to cause others to be confused (as might occur if a build-your-own-purse store allowed people to make their own counterfeits). There is no source confusion here at all; only a desire for absolutely identical gameplay, and thus, the enjoyment of using identical strategies during that play, etc. It indicates that play-related aspects of the games are not source identifiers.
Source identifiers aren't the question in gameboard copyrights
Well, if we're switching back to discussing copyrights from trademarks, then the issue is still related to functionality, but obviously the legal standards and protectable aspects of the board change. Arbitrariness, which you have put much stock in, might be relevant in the trademark side of things, but is irrelevant copyright-wise. Instead, the issue becomes that methods for doing things -- such as how to play a game, or even a very specific variation of a game -- are unprotectable in copyright, and that where a copyright on some related thing -- such as a written description of those rules, or a game board which complies with, and thus also expresses some of, those rules, e.g. grid size, square arrangement -- might imperil the ability of anyone to freely use those uncopyrighted rules, those copyrights fall by the wayside. The idea/expression dichotomy, the merger doctrine, and the scenes a faire doctrine, will all be trotted out, and aside from the color thing discussed earlier, Scrabulous has a great case. Going all the way back to Baker, Hasbro's game set describes the a specific variation of the game of scrabble through written and graphic expressive means (this also happened in Baker, with accounting methods and blank forms), but whatever protection they have on those expressions, it does not prevent someone else from making their own game set following precisely the same rules as described. The problem for Hasbro is that it's basically impossible to make a perfectly compatible board without sharing the same grid size and arrangement. This means that while they may have made creative choices as to the uncopyrightable rules (there will be a 15x15 grid, there will be a triple word square at (0,0), etc.) they employed in their specific implementation of the game, the game board itself does only what those rules demand, and nothing else. That's not a creative expression, and copyright demands creative expression.
even within the context of trademark protection, the further ripping off of the market pioneer provides no evidence that people find Scrabble to be generic--merely desirable.
Who the hell cares about pioneers? There's no patents. And as for desirability, it's not the Scrabble trade dress that these users are after; if they were, Wordscraper, which does not resemble Scrabble in any other way (other than arrangement, when users have laboriously rearranged the board themselves) would not help them. This is not a factory where a buyer can make their own counterfeit good with which to impress their easily-fooled friends. Rea
Yes, but considering that no one buys Scrabble because of the arrangement of its board, this doesn't get you anywhere.
And as I've said, I think this is not the case. Originally there was nothing particularly special about that arrangement as compared with any other which was equally fun to play (all triple word scores would seem a bit boring), I'm sure, but thanks in no small part to Hasbro's efforts, that arrangement has become the one that people want. Not because Hasbro makes it, mind you, but because it has become the standard arrangement.
Indeed, if you're familiar with Vuitton, you see the inquiry (made by the court, by the way, not the jury) contemplates that "arbitrary fixation" you dismiss.
Oh, I'd say I agree with the Vuitton court:
The arrangement Hasbro uses wasn't adopted to, and doesn't currently, identify the board as being Hasbro's. It merely causes the board to be a standard scrabble board. Setting aside arguments as to them, the SCRABBLE mark on the margins of the board, and perhaps the coloration of the board, are the indicia of origin.
Functional v. nonfunctional is a factual determination, but if you had continued reading even one sentence, you'd see that the inquiry is a question of law.
I've read the whole case a couple of times, actually. The question of law, as it so often is, is what standard will be used by the fact finder in making his factual determination. That doesn't really relate to what you had objected to, viz. my saying that it was a factual issue whether or not the arrangement is a part of the rules.
If it's not mandated, it's not a rule.
So 'jokers wild' isn't a rule, because it isn't universal? Nonsense. If the game players agree to it, it's a rule. Rules may be very popular (The 'Free Parking' rule in Monopoly), or very obscure (Look at some of the rules for Mornington Crescent) but they're all rules, and barring a patent, free for anyone to use. Hasbro obviously can't "mandate" a rule. If I and my co-players agree that Qs can be played as QUs, what is Hasbro going to do, shoot us? All they can do is endorse a particular set of rules. Others, finding those rules agreeable, may endorse them as well; otherwise, not.
As for the version of scrabble Hasbro publishes, the uniformity of the board, its ever-present inclusion in their scrabble sets, and the rules they endorse, referencing "the board," all indicate that their rules assume a board of that arrangement, and no other.
Moreover, note the new game launched to defuse the situation: the gameboard reproduction is now gone. They've read the case law, understood it better than you have, and see prospects too dim to pursue the matter.
Well, I haven't heard that they've actually settled. Instead, what I see is an attempt to avoid a temporary injunction. All the things that Hasbro can complain about are missing, and so life can continue. A judge is not going to tell them that they cannot even be non-infringing. Given that I would have advised Scrabulous to tread more lightly in the first place, and would have advised them to do something like this now that the case has begun, I'd say my understanding is pretty good.
No. That's not what effective competition means, even if you could point to any evidence of such a preference. I know of no one who plays Scrabble because of the arrangement of the board and who would refuse to play a variant with a different arrangement, and I know of no court that would receive such an assertion without a fit of laughter. Effective competition does not mean equal popularity.
I'm thinking mainly of the cases following Vuitton that the functional features of a product are the features that are the thing the customer wishes to purchase, rather than mere source indicators. It doesn't matter whether there is an alternative, or whether customers have fixated on that feature arbitrarily. The leagues standardizing on the Hasbro version of the game indicates that they want to play that version, and not some other version, for whatever reason. That doesn't mean that they want to play only copies of that version which are also manufactured by Hasbro, however.
I've seen nothing to suggest that Scrabble's popularity is based on its board arrangement.
The popularity was initially based on the overall gameplay itself, I'm sure. I doubt that anyone ever said that they played the game to satisfy a need for triple word scores in the corners or something. However, with the passage of time, what wound up being popular was not any sort of scrabble, with any sort of arrangement, but that specific version, and only that version. When people want to play scrabble, they want to play the variant of scrabble popularized by Hasbro, and no other. Again, league preferences are evidence of this.
It's not a factual issue. The jury doesn't decide what is or is not functional.
Yes, you're right of course. The court in Sega v. Accolade agrees with you: The question whether a product feature is functional is a question of fact. Oh, wait.
The inventor and manufacturer prescribe no such rule. Period. Mere description is not a rule.
Just because a rule isn't written down formally, but is expressed by other means (such as standard placement on the game board) doesn't make it less of a rule. And frankly, I'd be hard pressed to explain an omnipresent, unchanging, gameplay feature of a decades-old game if it wasn't a rule. It's hardly mere decoration.
the layout of squares is not functional here
Sure it is. Okay, look: A feature is functional if it there is a need to in order for effective competition, yes? And we're in agreement that Scrabulous certainly could make some form of scrabble game with a different arrangement and which otherwise was the same basic game. But were Scrabulous to do that, they could not effectively compete with Hasbro, because the overwhelming majority of the players of that game have a preferred arrangement, namely Hasbro's. Hasbro's standardization of that layout, and the various league endorsements of that layout, serve to confirm this. Competition is hindered if no one else can make the one board arrangement that people apparently want to play. It doesn't matter that it's arbitrary; the 100 yard length of a football field is equally arbitrary, but few if any people in the US play Canadian football.
This besides the point that the arrangement _is_ a part of the rules. But that is yet another factual issue where I think we'll have to agree to disagree and wait for it to be determined by a jury.
Descriptions that are prescribed for uniformity in a league are not rules.
Not just the league; also the inventor and manufacturer. If the arrangement wasn't important for play, why has it never changed?
Any game has a set of rules
Many games have more than one. Poker and solitaire immediately spring to mind.
And there is zero authority indicating that the special squares are functional.
In the Pac-Man case, the dots were functional as a means of keeping score and indicating progress toward completion of the level.
the hybridized analysis about functionality in a copyright context
There's nothing odd about concern for functional elements in copyright. The idea/expression dichotomy, the merger doctrine, the scenes a faire doctrine, and the utility doctrine are all deeply concerned with not allowing a copyright holder to monopolize functionality. The rationale is the same as for trademarks; while a single object may embody patentable, copyrightable, and trademarkable aspects, these three forms of protection do not actually overlap.
a definition of functionality that leaves no room for anything to fall outside of it
Did you miss the part where I said that the color scheme was creative and not functional? Copying it might be de minimis (though I wouldn't bet on it), but it certainly isn't necessary to play the game in a fashion that is functionally identical with Hasbro's version. Frankly, the Scrabble board is really sparse. Candyland has a lot of copyrightable materials on their board. Monopoly has a few (though, not the arrangement, that's unoriginal). Battleship has basically nothing, IIRC. Some of the less classic games, like Mousetrap (setting aside utility doctrine issues for the moment) seem extremely copyrightable. Scrabble, as implemented, just doesn't seem like it has a whole lot going for it on the copyright front.
You can make no argument that competition would be burdened by protecting Hasbro's arbitrary arrangement.
It's impossible to make a board that can be used under the unprotectable rules Hasbro endorses, or the various leagues endorse, without using that arrangement. Giving Hasbro protection in that arrangement would effectively give it a monopoly over the precise set of rules it uses. I smell merger. That the rules are arbitrary doesn't matter.
Scrabble itself can be played with a different arrangement.
The availability of alternative designs is insufficient to prove nonfunctionality. And anyway, while other variants of Scrabble can be played with a different arrangement, not all variants can be. You cannot play 'standard' chess with a different starting arrangement of pieces, you cannot play 'standard' baseball with a trapezoidal infield, and you cannot play 'standard' scrabble without the special squares arranged as Hasbro has. So what if 'nonstandard' versions of these games exist?
If I paint lines for hockey in orange and green for Irish pride, I can play hockey fully. I may not be able to offer my venue for a particular league, but this is immaterial to playing the game itself.
You can play hockey, alright, just not the NHL version of hockey, which is rather fussy. But if you decide to paint your lines red and blue (go Haiti!) the NHL cannot stop you merely because they arbitrarily chose it, because they require it.
integrating extraneous regulations imposed by leagues with the rules of the game itself.
But again, 'the' rules are all the rules. There are no platonic rules. You cannot point at a subset of all the possible rules for a game and say that those are 'the' rules, as you have been doing. Some rules may be more popular than others, some rules may be endorsed by different players, but they're all equally valid rules in the end.
Well, that regular work must not have paid very well; it had to use a bus to get around.
The only suit I'm aware of is a trademark one, which is outside the scope of the gameboard entirely. (Scarabeo is Scrabble in Italian).
From the little I've seen, it appeared to at least look at the game mechanics, as well as the name. And Scrabble is a separate game; Mattel, I believe, makes the Italian version of Scrabble, while Editrice Giochi publishes Scarabeo.
League rules, however, are not rules of the game
We do not live in some platonic world where there is a master set of perfect rules for any game. All rules are equally valid, with varying authorities endorsing them or not, as they see fit. If you want to play a game with someone, you will have to come to some agreement on what set of rules to use. But any set of mutually agreed-upon rules are fine. Some people may form a league and promulgate rules that way. Some people may publish copies of a game and include the rules that they endorse (see e.g. Parker Brothers' treatment of the Free Parking square in Monopoly) but none of these are THE rules from which all else are deviations. The most common and popular and widely-endorsed and first variation of a game is still just a variation, like all the others.
The Midway Pac-Man et al. case comes to mind.
Hm. I recall a Pac-Man case (there've been a few) in the 7th Cir. where there was copyright infringement on the appearance of the sprites, but that the board wasn't infringing barring virtually identical copying. Which we might see here in the case of the colors, being protectable, creative choices, but not for the grid (as you've agreed), or the functional special squares, IMO.
Trivial Pursuit also won a challenge.
I can see that. Haven't seen the case, though.
I believe Monopoly (also a Hasbro property) has also sued successfully.
When? They lost badly in the Anti-Monopoly case, with the revelation that they didn't even originate the game (just some of the art; not even the selection and arrangement of property names, IIRC), and their trademark was in grave jeopardy until Congress intervened. There was the recent Ghettopoly case, but didn't the defendant there lose by means of pissing off the judge into ordering a default judgment, rather than on the merits?
You seem to be forgetting the Fruehauf linchpin, or else are not as familiar with this area of law as you claim to be: "The crucial consideration is whether protection against imitation of the design feature will hinder effective competition."
Well, we've gotten away from the copyrightability of the board, but sure, provided that we're talking about non-functional elements. If the arrangement of special squares isn't required by any rules, then that, along with the colors, would certainly seem to support actions for copyright and trade dress. No argument from me there. But that doesn't answer whether or not the arrangement is functional or not! (The colors, as I've said before, seem protectable; Scrabulous was foolish to copy those) Hell, the plaintiff in that case even agreed that functional elements could be copied freely. It's just that the design turned out to be not all that functional.
I really don't see what point you were trying to make. I think we're in agreement as to the law, it's the facts that we're bickering over.
Because Scrabble can be played with a different arrangement of "special squares" without changing any of the rules of the game, there can be no credible argument that a different configuration will hinder competition at all.
_A_ version of scrabble can certainly be played with a different arrangement of special squares. In fact, there's surely a nigh-infinite number of possible versions of the game, with all kinds of boards, each more different than the last. But no version of the game itself is protectable by means of copyright or trademark. The Hasbro-endorsed version of the game is just as open to competition as any other, and that means the square arrangement is fair game.
You are trying to transform copyrights and trademarks into patents, and I predict failure.
Worked for Fantasia and Fantasia 2000, didn't it? Oh, wait.
After all, Tron is the only movie so far with a bit in a speaking role.
It was just a bit part.
Just replace lightcycles with DDR, and it could be called Tron 2: Electric Boogaloo.
Can you identify an unauthorized, commercially distributed board other than the one in the instant dispute?
There's a number of online versions, often with similar names like Yabble or Wabble. I remember one from the late 90's -- I'll be damned if I can remember the name -- where many games would run simultaneously, and players would only get to play one turn before being sent off to another instance of the game. Altus might remember it, but I think he's offline this weekend.
In the real world, Scarabeo is the closest thing I could find in the ~2 minutes of googling I'm willing to bother with. There's a slight difference: 17x17 instead of 15x15, but the layout of special squares is the same, mutatis mutandis, and 8 tiles in a hand instead of 7. Apparently they got sued back in the 50's for obvious reasons, but won their case.
There is no "rule" that says special squares must be at specific locations, except that there must be a center square. There is no "rule" that says you cannot play on a board of different dimensions.
So it's just a big coincidence that the vast majority of scrabble boards are 15x15 with that specific layout? Dubious. Baseball puts the bases at specific spots. Basketball, croquet, hockey, tennis, all likewise have specific requirements. And besides, what you just stated is inconsistent. First, because if there's no requirement for special squares to be in specific locations, why would there be a requirement that the starting square be in the center? Second, if there has to be a center square, then you can't have an even number of squares in either dimension, which conflicts with your claim that the board can be of any size without effecting the rules. Which again, is something that some games would take issue with, e.g. American and Canadian football.
Part of the rules of a game involve the starting conditions of the game: setting up a playing area that is agreeable to the players and complies with the rules they are going to play under.
Again, the rule is that the word be valid in the agreed-upon dictionary. The choice of dictionary is not a rule. External rules applied for league conformity are not rules of the game, they're rules of the league.
As I've said, I've no idea how the dictionary thing will play out. However, as for league rules, they're still rules. Rules are uncopyrightable wherever they happen to be found, and regardless of originality or creativity.
It contains an operational rule and a description of their gameplay surface. The description is not a rule of the game, but merely an indication of what a play can expect in that implementation.
The surface is just a graphic description (as well as a convenient thing to play on) of the rule that places triple word squares at (0,0), (0,7), (0,15), etc. That it's a diagram instead of written out doesn't matter. The cheapest of cheap sets could just include a pamphlet of written instructions, with the expectation that players would draw their own board on a piece of paper, randomly choose the tiles in their hands, and then write their plays down on the paper. It would be even more primitive than Arthur Dent's set, but it would suffice. Anyway, it's like chess, which has rules for where certain things go on when you set up the board (not special squares, but the pieces). You couldn't play an ordinary game of chess with your king backed into a corner, and surrounded by a triangular arrangement of pawns and rooks. A variant, yes, but not the standard game.
No game board arising from a unique origination as a commercial property has ever, to my knowledge, been found to be not copyrightable.
Oh, it's a copyrightable board, just not in its working portions, which is all we're concerned with here. The margins (and I suspect the color choices) are where the copyrightable elements are to be found. Come to think of it, I wonder if cases involving blank forms might be instructive to look at. Anyhow, the scrabble board seems quite sparse for a board g
They don't have to fully compensate you for the loss. They pay you whatever they want and too bad if it isn't fair to the person having their property taken away.
No, that's not at all true. They are obligated to pay you just compensation (see e.g. the Fifth Amendment), and in the event of a dispute between the state and the property owner, the amount is determined by a court. Usually each side brings in experts who have assessed the value of the property, and a jury decides what the value is based on that testimony. Feel free to look into it; you'll find that I know what I'm talking about. There's a lot of furor about the idea that the government can condemn property -- and you usually can't stop them from doing that -- but people seem to be ignoring the just compensation requirement, which really is in there.
And civil forfeiture doesn't work like that either. If you get found with lots of cash on you, they can just take it away from you. You then have to go to court and prove that you didn't earn it criminally.
Yes, that's more or less like being arrested. The money is impounded until it's gone through the legal system, much like someone can be arrested before being convicted.
Scrabble not being one of [the games with rules as to the layout of the playing surface], it does not matter.
The evidence seems to indicate otherwise. All the scrabble boards I've ever seen are uniform in layout. If the rules didn't require a uniform board, why would that be? You could have a variant board that didn't, of course, but then you would have changed the rules somewhat, just like if you played chess on a 9x9 board. Your assertions don't change the observable fact that scrabble, as played under the most common set of rules, require a standard board.
If the game's rules can be implemented on a board of a different configuration, the board is not a rule.
So you're saying that whenever a rule is not universal, it's not a rule? That's not true. It just means that there are alternate sets of rules. Since they're all rules, they're all uncopyrightable, regardless of popularity. Think of the designated hitter rule: it's a rule in the AL, and not a rule in the NL. Does that mean that it's not a rule, because you can play baseball without it? Of course not!
Arrangement of squares is not functional on any reading of the term I've ever encountered.
You need it to play the game according to the most common set of rules. A different arrangement would make for a different variant of scrabble.
There is no other Scrabble.
There are a couple of different scrabbles, actually, depending on the choice of dictionary (since that lists the valid moves, like playing chess with or without the rule that allows castling).
The rules of Quake do not depend on the level maps. The rules of golf do not depend on a particular course.
I agree, and I've said as much earlier. Not all games have rules that specify their playing areas. Golf doesn't. Football does. Chess does. Scrabble apparently does too.
Well, no. When a government takes property under its eminent domain power, it has to compensate the owner for the loss. So if they took a piece of land from you that was valued at $1 million, they'd have to pay you $1 million. And if you thought it was worth more, and disagreed with their valuation, you could take them to court to try to get more. (This routinely happens)
None of that applies in civil asset forfeiture. The government does have to bring a civil action, but it's much easier for them than a criminal trial would be, and if they succeed, they don't have to pay the owner compensation.
I think you'll find that Madison, along with a number of other people, wrote the US Constitution. Jefferson didn't directly participate (though he corresponded with Madison; they were friends) as he was our ambassador to France at the time.
that case is best understood in the context of software which is at the intersection of expressive content and functional mechanisms. In my view it is a phenomenal stretch to extrapolate it to the case of a game board at all
Why? Games, like the functional parts of software, are uncopyrightable because both are the same sort of uncopyrightable subject matter. Playing a game -- this sort of game, at least -- is basically plugging some inputs into an algorithm, and everyone has a good time until the loser walks away in a huff. And Altai has shown up in other contexts. I remember seeing it in an architectural case some years ago, for example. The general point it makes of showing how to separate copyrightable and uncopyrightable elements is universally applicable.
The game board is part of the functional apparatus. For some games, the rules of the game will totally dictate the nature of the playing surface. Chess wants an 8x8 grid. Alternate rules may exist for a different grid, or shape, or whatnot, but that doesn't make the first set of rules something other than rules. If there were no rule at all, the board could be any random thing, and it wouldn't matter. I must confess, I can't think of any board games that have absolutely no rules vis-a-vis the board. Tic-tac-toe on an infinitely large surface with an irregular or entirely absent set of lines, maybe? That would be weird to play.
Anyway, first, Scrabulous only copied part of the board: the area comprising the grid, and its contents. The elements around the grid on Hasbro's board probably do include some copyrightable elements, but since they weren't copied, they're not relevant here. The 15x15 grid is required to play Hasbro's version of the game, and so is dictated by a rule. It's not copyrightable. Again, that other rules could exist doesn't negate the rule-ness of Hasbro's rule, nor its uncopyrightability. Even creative, original rules are not copyrightable subject matter.
The placement of the special squares also seems to be rule-based. Imagine baseball or billiards with the bases or holes rearranged. You could play it, but it would not conform to the standard rules.
It is the colors of the squares that seem to me to the only possible copyrightable elements in play. It could be argued that they have to be those colors, just like the MLB rules for baseball require a white ball, or apparently the NHL rules for hockey require certain colors for the lines in the rink. But even I find that dubious. Probably the colors don't matter, so long as the players can distinguish those squares from the others. That leaves Scrabulous having to argue merger (because there's only so many colors available; probably not a winning argument), or de minimis copying (because even though they copied the colors, the colors standing alone (the rest of the part of the board in question being uncopyrightable) are too little to support an infringement action). That's not a fun argument to make, but it is a viable one, and it has at least some chance of success, however slim.
As I mentioned elsewhere, most of us have been ignoring the really big instance of copying though. Ignore the game board, what about the dictionary? That's the biggie. There was certainly some creativity used in compiling it. OTOH, could the rule argument be used against that? After all, the dictionary defines -- no pun intended -- all the possible valid moves, and is functionally necessary. I would not relish having to be on either side in that argument. I have no idea who would win.
This seems to have drifted from the point: dice are not marketed by trademark. I doubt if anyone could identify for you a single manufacturer of dice without research.
Well, when I was younger, I used to play D&D. There are actually some very distinctive dice out there, and people who pay attention to such matters, order directly from the manufacturer, etc. But most dice are utterly generic; most people don't care. Though I'm sure you understand about the difference between the general public and the relevant consumers.
If I make my own custom board with a different arrangement of "special" squares, the rules of the game can still be obeyed fully.
We seem to be in disagreement as to what the rules consist of. Certainly some games have rules that specify the arrangement of elements on the playing surface. Baseball requires that there be three bases, home plate, and a pitcher's mound, and that they be arranged in a very specific way. You could play a variant of baseball, with slightly different rules, in which you ran clockwise around the bases, or where the bases were arranged in a parallelogram or something. But that would just mean that there were two sets of rules regarding arrangement, not that neither set of rules addressed it.
No rules, or variants of rules (which are still rules) can be copyrighted, ever. If Hasbro's version of scrabble requires a certain arrangement of the board, then why would that not be a rule? That the board is the expression of the rule, rather than it being printed in black and white on the piece of paper that comes in the box, is inconsequential. Wherever, or however, the rule is expressed, it's still uncopyrightable subject matter.
anyone is free to use a Scrabble board--but you're not talking about use, or even personal reproduction. You're talking about commercial reproduction and distribution, not making it available for all.
The public is nevertheless better served by having multiple sources for public domain materials than only one. The sources can compete against each other, with beneficial effects for the public. Even here, it appears that Scrabulous exists to fill a niche that Hasbro was ignoring, but at least some of the market wanted filled. And the commercial issue is a red herring. Public domain works can be, and routinely are, commercially exploited. It's nice when a publisher of a public domain work is charitable (e.g. the Gutenberg Project) but it isn't required (e.g. Penguin paperbacks of everything from Chaucer to Shaw).
You're arguing out of context. There is never a need for material under copyright. While a patent may prevent an important product from reaching its greatest potential if no one can come up with an alternate method, works under copyright are always distinctive and arbitrary. There is never a need for a painting to be available to all; this should appear eminently obvious, since most work is never reproduced and never seen by society as a whole. A compelling desire, and a fair price for statutory protection, absolutely. A need, absolutely not.
First, "distinctive and arbitrary" are irrelevant terms for copyright, which is concerned with originality, creativity, and fixation, of works of authorship, and little else. A work can be utterly derivative and bland and constrained by rules -- very bad poetry, say -- but still be copyrightable. I think you've got trademarks on the brain.
Second, piffle. There's never a need for an invention either; there's always some alternative, and the need is never that great. I'd love to have a cold fusion reactor and a teleporter, but life goes on without them. Society has a desire for ever more novel, nonobvious, useful inventions, so we have patents to get more made. But we equally desire those inventions be in the public domain so that there are no artificial restrictions on the use of those inventions by anyone, in any way. Ditto for copyrights: we have them to incentivize creation, but having works at hand, we want those works for fre
On the contrary, generic games benefit from many suppliers, but only to the extent that there is variation
I disagree. Sure, I can get fancy dice (dice can be a game all by themselves) with an unusual number of sides, or fancy designs, or made out of odd materials. But I'd be willing to bet that the vast majority of dice manufactured and sold are extremely plain and interchangeable. The market benefits from having all manner of dice and manufacturers competing, lowering prices, serving niches, etc.
Bayer produces a functional product and deals in patents. Don't conflate the analysis.
First, games are functional products, which can only be protected by patents. Only non-functional parts of games, like the art on the box, are copyrightable. Names can be trademarked, provided that they're source identifiers for a particular copy of the game, but the name of the game itself is not distinctive.
Second, the most basic, fundamental rationale for the public domain is the same for copyrights and patents. Works and inventions are most valuable to the public when they are free for all to use.
There is frankly never a need to have free access to copyrighted material.
You can't seriously believe that. There is always a need to have free access to copyrighted materials, which is why we have the copyrights expire! Only with public domain works can we fully promote the progress of science by letting anyone who wishes use the work as they please, copy it, make derivatives based on it, perform or display it, and distribute copies to others. If those things were not so valuable, granting a monopoly over them wouldn't be worth all that much. The government can offer a carrot to authors with a reproduction right, since everyone would like to copy the work themselves. A 'getting hit over the head with a copy' right wouldn't be much of a carrot; there's no demand.
They would be against the tournament rules
Which are just another set of rules. No rules, no matter how popular or unpopular, no matter how creative or uninspired, how distinctive or generic, are ever, ever, ever copyrightable. All rules are merely methods for playing the game, and methods are uncopyrightable subject matter.
Lawful, but clearly opportunistic and blatant, reproduction naturally colors the view
That's decidedly unjust. I suppose you would be willing to condemn the most despicable man alive, regardless of his actual innocence?
Meanwhile, I had a few spare minutes at work today, so I read the complaint that Hasbro filed. Pretty standard stuff (though their description of the game strikes me as bolstering my the-board-is-functional argument). But there was something there that I had completely forgotten about. No big surprise, I've only played scrabble a few times (I prefer Trivial Pursuit). But I haven't seen it mentioned much elsewhere either. Apparently, Scrabulous also copied the official dictionary!
I don't even want to guess how that will resolve itself. On the one hand, the dictionary as a compilation has at least some creativity in the selection of words, though probably not the arrangement. On the other hand, the dictionary is just a list of all the possible valid moves in the game, and could arguably be thought of as another, albeit weirdly-expressed, rule. Imagine that instead of the rules of chess being presented in their usual fashion, e.g. bishops move diagonally, you instead were just given a book of all the valid, possible individual moves, e.g. a bishop at QB1 is allowed to move to Q2, K3, etc. A standard dictionary is so essential to playing this game, that it might be unprotectable as a result.
I certainly wouldn't want to have to make either argument on that issue. But I hope that Scrabulous makes a fight out of it. This could be a really juicy case.
That's a bad example - the game is actually called "Scrabble", so the fact that they think that's what it's called is irrelevant.
I think that what you're missing here is that, in order to be protectable, trademarks cannot be goods identifiers, but instead must be source identifiers. For example, COKE-brand soda is soda that comes from the Coca-Cola company; the stuff in the bottle, however, is soda, not "coke." If people use 'coke' as a synonym for soda from other manufacturers, then the mark is no longer serves to distinguish COKE-brand soda from other, unrelated sodas. Trademarks are only protectable if they are distinctive of a common origin for all so-marked goods.
Xerox has been fighting a (probably losing) battle against genericide for decades now. Whenever members of the public refer to non XEROX-brand photocopiers as xerox machines, it chips away a little at the XEROX trademark. They actually run ads that chide people for misusing their mark, and instruct people as to how to use it in a way that preserves Xerox's rights. My favorite is the one that goes 'You can't xerox a xerox on the xerox,' which complained about xerox as a verb, the noun xerox referring to xerographic reproductions, and the noun xerox referring to photocopiers. Wikipedia has a nice list of generic and at-risk marks, if you're interested.
Since it is the public perception of the mark, and whether the relevant segment of the public that believes the mark is distinctive of a particular source or not, which is controlling, it's anything but irrelevant.
So if people think that the game that Hasbro makes is "scrabble," and that the same game, from any other source, would also be "scrabble" (just as chess is chess, regardless of which company you get a chess set from), then the mark is no longer a functioning, protected trademark. Hasbro knows this, which is why what it says on the box is SCRABBLE Crossword Game. SCRABBLE is the brand, so you know whose crossword game you've got. "Crossword game" is what the game is actually called, however.
THERMOS sold vacuum flasks, but when "thermos" and "vacuum flask" became synonyms, THERMOS died as a trademark. SCRABBLE strikes me as being at risk. It will take a properly designed and conducted survey to serve as evidence, however. All we can do here is guess.
A better test would be a different crossword game, like maybe UpWords
I'm not familiar with that one. Is the gameplay -- which is not protected by copyrights or trademarks -- identical to scrabble? We're not talking about vaguely similar games, like football and rugby. We're talking about the exact same game, from different manufacturers. Is SCRABBLE indicative of the game coming from a particular factory, like how TROPICANA and MINUTE MAID are two different trademarks for orange juice, or how LEVI'S and JORDACHE are for jeans, or is that the name of the game, from whatever source?
obviously people are going to refer to a game by its name
No one ever said it was easy to get and keep a trademark. Remember the kerfuffle a few years back, when Google got upset that a dictionary was listing 'google' as a verb?
The particular thing, the board, is an image. Images are protected. There has been some creative choice in the layout of the image and this will make the image an original work of somebody. It will therefore be protected by copyright. It doesn't matter that it may also be part of some set of rules.
Well, sort of. While a work may be copyrightable as a whole, it is not uncommon to see works which are only copyrightable in part. For example, a novel that mentioned that Columbus sailed to the Americas in 1492, and which had a reproduction of a historical painting of Columbus, would be copyrightable except for those parts. Facts, and other public domain materials aren't copyrightable. Anyone could appropriate those parts and do as they pleased with them. Their appearance in the otherwise copyrightable novel doesn't cause them to be brought under the novel's copyright. A work that only consists of uncopyrightable elements (e.g. the white pages part of the phone book) is going to have a hard time of being copyrightable at all. Another sort of uncopyrightable element are the ideas that underlie a work. The expression of those ideas may be copyrightable, but not the ideas themselves. An example of this would be the plot of Hamlet (ignore that it's a public domain work anyway). If that plot shows up in a movie (Strange Brew), or a musical (the stage version of The Lion King), or some other retelling, the plot remains unprotectable. Anyone can use the plot, and it can be copied from any source, not just the one from which it originates. It's only the way the work expresses the plot (e.g. specific lines of dialog) that could be protectable. And since it is more important for the idea to be unprotected, than for the expression to be protected, in cases where there are few ways to express an idea, or where the functional concerns of the idea demand that the expression be a particular way, then those expressions are less likely to be copyrightable. And note that methods of doing things are uncopyrightable; you could write a book teaching readers how to do double-entry bookkeeping, and get a copyright for your particular explanation, but you couldn't copyright the actual method of bookkeeping you describe. Which means that anyone can read your book, learn your system, and write their own book explaining it, and not infringe on your copyright.
Here, it seems that the game rules dictate a particular size and configuration of the board, just as the rules of many other games often have requirements for their playing surfaces (e.g. the rules of chess require an 8x8 board; baseball requires the bases and home plate to be in counterclockwise order (imagine having to run past second to get to first, then backtracking to second, then past first to get to third!), a certain distance apart, in a certain shape, etc.). So if those things originate from the rules, and lack creativity due to their functionality in playing the game, then those aspects of the board are not copyrightable. Decorative elements of the board that are not mandated by the rules (the color scheme, perhaps) could be copyrightable, provided that they met the requirements for originality, creativity, etc.
That a work is original is certainly necessary for you to claim a copyright on it, but originality isn't enough by itself. Non-copyrightable subject matter -- such as game rules, whether expressed in a booklet, or in the form of a playing surface -- aren't copyrightable, however original they may happen to be.
While it doesn't have to do with games, per se, Computer Associates v. Altai is a good case for looking at what parts of works (in this case software) are copyrightable, when functional concerns have informed the writing of those works. You may enjoy reading it.