by Eric Adler

Copyright law allows — perhaps even encourages — copying ideas. Ideas are always free to use and modify. What copyright law prohibits is copying the original creative expression of an idea. Since video games are collections of both ideas and expressions, we need to figure out whether the clone copied any “creative expression” from the original game. Some examples might help explain what we mean by separating idea from expression. Let’s start with a case about Atari’s Breakout, and whether it has any protectable “creative expression” at all.

Even Simple Video Games are Copyrightable: Breakout (1992)

Atari, maker of “Breakout” (left) was unhappy with Romstar’s “Arkanoid” game (right). But before Atari could sue for infringement, it needed to register the copyright to Breakout. The Copyright Office initially refused, dismissing Breakout as a mere collection of functional rules applied to basic shapes and colors, and lacking creativity. Atari, feeling insulted, appealed the matter to a young Ruth Bader-Ginsburg (59).

Ruth Bader-Ginsburg appreciated the creativity involved in designing video games. While simple shapes and colors are unprotectable, Atari’s selection and arrangement of simple shapes were copyrightable, especially when paired with creative sound effects. And while game mechanics based on pure physics are public domain, the Breakout game mechanics were governed by creative physics: “The ball’s path in Breakout varies depending on which of four sections of the paddle it hits. Its trajectory does not follow from the laws of physics.” Atari v. Oman (1992). Judge Ginsburg decided that the Copyright Office’s video game philistines didn’t have a “rational basis” to deny Breakout’s copyright registration based on a perceived lack of creativity.