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Don’t Trust the Media to Get Copyright Right: Scrabulous Coverage Scores Few Points

January 22, 2008 , ,

There's a lot that's interesting in the recent controversy over Hasbro and Mattel, joint owners of the Scrabble trademark, asking Facebook to remove the third-party application, Scrabulous. On the academic side of things, it's fascinating to think about to what extent various aspects of board games are protectable by different areas of intellectual property law.

It's pretty clear that the name “Scrabulous” infringes on the trademark “Scrabble.” Trademark law is designed to prevent consumer confusion as to the origin of products, and one of the ways it does that is to prevent companies from giving their products names that are “confusingly similar” to someone else's trademark. Although it's as prone to abuse as all the other areas of intellectual property law, in this instance, the owners of Scrabble are not being unfair by pointing out that Scrabulous infringes on their trademark. Indeed, if they didn't take steps to protect their trademark, they risk losing it– that's how the law works. (The makers of Scrabulous would not infringe the Scrabble trademark merely by correctly pointing out that their game is pretty much the same as Scrabble. Trademark law does not prevent a company from describing its product accurately.)

The more controversial issue is whether the game Scrabulous, and not merely the word “Scrabulous,” infringes on some kind of copyright. This hinges on what elements of the game are “creative,” and which parts are “functional.” For the most part, copyright law protects expressions(creative), but not ideas(functional). Although the exact design of a board (the colors and artwork, for instance) might be copyrightable, the rules of a game, in the platonic sense, are protectable either by patent or not at all. In the case of Scrabble, an interesting question might be whether the layout of scoring tiles is merely arbitrary, or a functional part of the game itself. Anyone who has ever played a triple triple can tell you how much the exact placement of the scoring tiles can affect gameplay.

However interesting this might be to a law student like myself, it seems to be the case that the entire “copyright” angle has been invented by the media. Here's some quotes:

“The makers of word game Scrabble have asked Facebook to remove its popular online version 'Scrabulous,' which they say infringes their copyright.”
(From Reuters, via the New York Times)

“[Mattel and Hasbro] claim that the wildly popular application infringes on the copyright of their own word-based board game — you know, the one called Scrabble.” (From Wired)

“Hasbro fires off legal letters over Scrabulous: Scrabble owner spells out copyright law to Facebook”(headline) (From The Register)

“Lawyers for toy makers Hasbro and Mattel say Scrabulous infringes their copyright on the board-based word game.” (From The BBC)

Maybe Reuters or the BBC actually spoke to someone from one of the toy companies, and maybe that someone used the word “copyright.” But as near as I can tell, the only official statement on the matter (there's nothing on either company's website) from one of the companies is this:

“Letters have been sent to Facebook in the United States regarding the Scrabulous application. Mattel values its intellectual property and actively protects its brands and trademarks. As Mattel owns the rights to the Scrabble trademark outside the United States and Canada, we are currently reviewing our position regarding other countries.” (Adapted from the Reuters article)

So, the only actual material we have from the people allegedly claiming copyright infringement doesn't mention copyright once. Only trademark is mentioned, and as discussed above, their trademark claim is entirely fair. If a lawsuit is eventually filed about this, a copyright claim might eventually inch its way in there– complaints in lawsuits tend to allege that the opposing party has committed every wrong imaginable. But at this stage in the game, there's no reason to claim that Scrabulous has been accused of copyright infringement.

I'm tempted to chalk some of this up to sloppy second-hand reporting– the Wired and Register articles are probably just based off of the BBC or Reuters articles, and maybe they felt like spicing things up. Changing some words around, like switching “copyright” for “trademark”. They mean the same thing, right? But Reuters and the BBC talk about “copyright,” too. Now, reporters shouldn't be expected to know the law as well as a lawyer or law student should. Anyone who reads a news article about some area she is an expert in will feel like the article mischaracterized X, failed to distinguish between Y and Z, or left out some important detail. But given the important implications that copyright law has on society, culture, technology, and innovation, the differences between the different kinds of intellectual property aren't just little legalistic nits for dweeby lawyers to pick. Like Cory Doctorow writes, “One of the side-effects of the entertainment industry's war on copying is that it's created a kind of folk-mythology about copyright being a kind of magic word you can invoke to put a fence around anything that you want to police.” If you don't understand copyright, you might think that a sign that reads “Please, No Cameras. This is a copyright-protected area” makes some sort of sense.

This pervasive ignorance of what “copyright” means and what it applies to can only have negative consequences for those interested in copyright reform. If you don't understand copyright, you have no way to deal with Rick Cotton's recent claim that making backup or archival copies of legally-purchased works isn't a legal or moral right of consumers, but merely a “demand” that media companies may (or may not) choose to satisfy.

If you don't understand copyright, you don't understand that the largest constituency of copyright owners isn't Hollywood or the RIAA, but ordinary citizens. There are six major motion picture studios, but millions of bloggers. While some of the video clips on Youtube might infringe on someone's copyright, the vast majority of clips are user-created. Every one of those blogs and video clips is protected by copyright. Shouldn't the law cater to them, rather than copyright clearing-houses like Sony BMG?

We in the copyright reform movement like to think that the public is on our side– or that they would be, if only they understood what we're always going on about. To get people on our side, a big part of our mission needs to be educating the public and creators on what copyright is and what it protects. As the reporting of the Scrabulous incident shows, we can't count on the media to do the job for us.


About John Bergmayer

John Bergmayer is Legal Director at Public Knowledge, specializing in telecommunications, media, internet, and intellectual property issues. He advocates for the public interest before courts and policymakers, and works to make sure that all stakeholders -- including ordinary citizens, artists, and technological innovators -- have a say in shaping emerging digital policies.