Facebook really took off because of the “apps” offered online–especially games like “Scrabulous,” a spitting image of the word game Scrabble. Hasbro and Mattel have now warned both Facebook and the app’s creators (Rajat and Jayant Agarwalla) that they’re infringing the Scrabble owners’ IP rights. The Agarwallas are now making about 25K per month from the app, and presumably Mattel deserves a cut. But what rights exactly are being infringed?
Games can be patented (see, e.g., the famous Rubik’s cube case), but the underlying process of playing Scrabble has likely long since passed into the public domain. Even the founders of the the “Save Scrabulous” group on Facebook concede that “copyright infringement is obvious,” but is it? As one of my students wrote to me, isn’t the board a bit like the blank forms that courts have been unwilling to extent copyright protection to? And isn’t the arrangement of colored squares on the board wholly functional, an indicator of various scores for certain plays? Perhaps the particular colors of the board itself could be deemed a form of product design trade dress, but I think you could see a translation of the principles of Lotus v. Borland into functionality defenses against trade dress infringement claims.
But that still leaves the elephant in the room–the substantial similarity between Scrabulous and the mark Scrabble. But in keeping with the theme of this post (of pushing defenses here to the breaking point)–could Scrabble be generic? I know that’s doubtful, but I also have a sense that there is no other way that people refer to the “game that involves seven lettered tiles played for points on a board that includes double and triple letter and word scores.” On the other hand, if you asked the “man on the street” if Scrabble is the name of a word game or the name of trademark for a company’s (version of a) word game, it seems like the latter interpretation is at least as likely as the former for someone with an elementary knowledge of the law.
So let’s assume that Mattel would win in court; what are the proper damages? Some bloggers have suggested that as a matter of equity, Mattel owes as much to the Scrabulous app as the app owes Mattel–it’s great advertising. One also has the sense that, had the Agarwallas disclosed the idea of a Scrabble-based Facebook app to Mattel, their corporate legal department may have either turned it down outright or politely declined and then turned to their own programmers to avoid partnering with them. So while I respect the rights of Mattel to “demand a cut” here, I also think that the dilemmas facing innovators like the Agarwallas are real and should lead to some sympathy from the courts.
There’s also the alleged “blackletter law,” cited in Nimmer ch. 2, that games are not copyrightable, although game artwork such as a board can be copyrighted as a graphic or pictorial work. So that needs to be factored in here too. Also, rules are like recipes, in that they are not inherently copyrightable, but may be if additional expression is added. I don’t know exactly how Scrabulous works, but it looks like the infringement claim would have to be in copying protectible elements of the board — and given how highly stylized the Scrabulous board is, we don’t have verbatim copying here. Still, there’s the alphabet quilt case; in theory just the colors and the arrangement may be enough to capture the “total concept and feel.”
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