Copyright law does not protect an idea; only its expression is protected. Nola Spice , 783 F.3d at 551. A party claiming infringement may place " ‘no reliance upon any similarity in expression resulting from’ unprotectable elements." Apple Comput. , 35 F.3d at 1446 (quoting Aliotti v. R. Dakin & Co. , 831 F.2d 898, 901 (9th Cir.1987) ). Copyright does not protect game rules because they fall within the section 102(b) exceptions for an "idea, procedure, process, system, method of operation." See, e.g. , Incredible Techs., Inc. v. Virtual Techs., Inc. , 400 F.3d 1007, 1012 (7th Cir.2005) ("[T]he Copyright Act provides that copyright protection does not extend to any "method of operation...regardless of the form in which it is described, explained, illustrated, or embodied in such work." (quoting § 102(b) )); Whist Club v. Foster , 42 F.2d 782, 782 (S.D.N.Y.1929) ("In the conventional laws or rules of a game, as distinguished from the forms or modes of expression in which they may be state[d], there can be no literary property susceptible of copyright."); MELVILLE B. & DAVID NIMMER, NIMMER ON COPYRIGHT § 2.18[H][3] (2010) ("[N]o copyright may be obtained in the system or manner of playing a Davinci Editrice S.R.L. v. ZiKo Games, LLC, 183 F.Supp.3d 820, 118 U.S.P.Q.2d 1501 (S.D. Tex., 2016) game or engaging in any other sporting or like activity.").
"[G]ame mechanics and the rules are not entitled to protection, but courts have found expressive elements copyrightable, including game labels, design of game boards, playing cards and graphical works." Tetris Holding, LLC v. Xio Interactive, Inc. , 863 F.Supp.2d 394, 404 (D.N.J. 2012) (citations omitted); see also Durham Indus., Inc. v. Tomy Corp. , 630 F.2d 905, 913 (2d Cir.1980) ("[C]opyright protection extends only to the artistic aspects, but not the mechanical or utilitarian features, of a protected work."). Unlike a book or movie plot, the rules and procedures, including the winning conditions, that make up a cardgame system of play do not themselves produce the artistic or literary content that is the hallmark of protectable expression. See Boyden, 18 GEO. MASON L. REV. at 466. Instead, the game rules, procedures, and winning conditions create the environment for expression. Id. ; see also Nat'l Basketball Ass'n , 105 F.3d at 846 ("Unlike movies, plays, television programs, or operas, athletic events are competitive and have no underlying script.").
This general rule is consistent with the decision in Baker v. Selden , 101 U.S. 99, 25 L.Ed. 841 (1879), in which the Supreme Court ruled that a particular bookkeeping system was not copyrightable. The language and illustrations that the plaintiff had used to explain his system were copyrightable, but they did not protect the system itself from use by other parties. The Copyright Office has applied the rule that copyright does not protect a system's operation method to games. The December 2011 fact sheet for Copyright Registration of Games states:
Copyright does not protect the idea for a game, its name or title, or the method or methods for playing it. Nor does copyright protect any idea, system, method, device, or 9 trademark material involved in developing, merchandising, or playing a game. Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles. Copyright protects only the particular manner of an author's expression in literary, artistic, or musical form. - U.S. COPYRIGHT OFFICE , FL-108, COPYRIGHT REGISTRATION OF GAMES (2011).
In Chamberlin v. Uris Sales Corporation , 56 F.Supp. 987 (S.D.N.Y.1944), the court held that the plaintiff could not rely on copyright protection for the rules of the [183 F.Supp.3d 831] game "Acy-Ducy," a four-player variation of backgammon. The court found that the plaintiff's game lacked the originality necessary for copyright protection, noting that "it is very doubtful if rules of a game can, in any event, be copyrightable subject matter." Id. at 988 (citations omitted). In Freedman v. Grolier Enters., Inc. , 1973 WL 19914 (S.D.N.Y. June 30, 1973), the court held that "[t]he placing of single numeral point count values beneath the suit symbols on honor cards in bridge decks [was] not copyrightable." Id. at *2. "[W]hen an idea is so restrictive that it necessarily requires a particular form of expression, that is, when the idea and its expression are functionally inseparable, to permit the copyrighting of the expression would be to grant the copyright owner a monopoly of the idea." Id. at *3.
Courts that have found infringement of a game generally focus on the visual appearance used in the game or on expressive aspects of the game's characters. Atari, Inc. v. N. Am. Philips Consumer Elecs. Corp. , 672 F.2d 607, 610 (7th Cir.1982), for example, Davinci Editrice S.R.L. v. ZiKo Games, LLC, 183 F.Supp.3d 820, 118 U.S.P.Q.2d 1501 (S.D. Tex., 2016) involved a copyright claim for the popular PAC-MAN game. PAC-MAN centered on a "gobbler" character eating dots as it progressed through a maze while avoiding "ghost monsters." The allegedly infringing game was essentially the same. The court held that the PAC-MAN game play—a character eating its way through dots in a maze while being chased—was not protectable. Id. at 617. But the court did find the characters' appearances and names protectable, because they were uniquely designed, fanciful, and "without reference to the real world." Id. at 617–18.
