Courts have faced a variety of imaginative arguments advocating that video games not receive copyright protection but unanimously have rejected them. A more difficult copyright issue for courts has been deciding whether one video game illegally has copied another. Of the cases involving illegal video game copying that courts presently have decided, only Atari, Inc. v. North American Philips Consumer Electric Corp." has found copyright infringement by a video game that was not virtually identical to the original game.
Part II of this Recent Development discusses the requirement in copyright infringement actions that, in proving copying, a defendant's allegedly infringing work must be substantially similar to a plaintiff's copyrighted work. Part II first discusses the common law idea--expression principle's and the scenes a faire doctrine's limitation on finding substantial similarity between two works. Part H then discusses judicial tests for ascertaining whether two works are
substantially similar, namely the audience test and judicial modifications of the audience test. Part III discusses recent video game copyright infringement cases. Part III first surveys video game "knock-off" cases, in which defendants produce and market video games that are virtually identical to previously copyrighted video games. Part III then discusses copyright cases concerning video games that are not virtually identical, thereby requiring fact finders to determine whether two games are substantially similar. Part IV criticizes the substantial similarity analysis that courts use in video game copyright infringement cases. Part IV asserts that these courts treat video games like standard board games and focus primarily on visual video graphic similarities between video games to determine whether they are substantially similar. Part IV argues that fact finders should play the video games that an infringement suit involves, and consider both visual videographic similarities and similarities in the manner in which the two games play in determining whether they are substantially similar. Finally, Part IV discusses the benefits of applying its proposed substantial similarity analysis to future video game copyright infringement cases in light of developing trends in the video game industry.
Steven G. McKnight,
Substantial Similarity Between Video Games: An Old Copyright Problem in a New Medium,
36 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol36/iss5/3