Bethesda v. Behaviour: Questioning the Idea/Expression Dichotomy

De temps en temps nous partageons des travaux « IP News » exceptionnels, écrits pour la classe de Propriété intellectuelle (BUS 502). Vous trouverez celui de Denis Douville ci-dessous.  

Bethesda v. Behaviour:

Question the Idea/Expression Dichotomy 

In the recently filed and currently ongoing 2018 United States case of Bethesda v. Behaviour Interactive, US corporation Bethesda claims copyright infringement of its popular game “Fallout Shelter” against the small Montreal based computer programming contractor, Behaviour. Bethesda’s claim in this case demonstrates the potential falsity of the idea-expression dichotomy when it is applied to mobile phone video games, due to such games’ different levels of abstraction, idea-expression unities, and overlapping components.

According to the idea-expression dichotomy, copyright protects “expressions but not ideas” in order to balance “the free flow of information against the property interests of authors.”[1]Expressions of ideas “fixed in a tangible medium of expression” are protected, but the ideas themselves are not.[2]The US Copyright Act of 1976 codifies the concept under s. 102: “in no case does copyright protection … extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form.”[3]Canada’s Copyright Act does not codify the concept, but does reference and require “fixation” in many s. 2 definitions of “works,” as well as its articulation of “infringement” and “computer program.”[4]Jurisprudence fills the gap. In Moreau c. St-Vincent, Thorson J claimed “un principe fondamental du droit d’auteur veut que l’auteur n’ait pas un droit sur une idée, mais seulement sur son expression.”[5]In CCH Canadienne Ltée c. Barreau du Haut-Canada, McLachlin J noted “le droit d’auteur … protège l’expression des idées dans ces œuvres, et non les idées comme telles.”[6]

In Bethesda, the plaintiff Bethesda claims copyright infringement of its mobile phone game against Behaviour. Bethesda contracted Behaviour to develop the Fallout Shelter videogame and assign all its copyright to Bethesda.[7]Warner Brothers then hired Behaviour to produce the Westworld videogame. Bethesda claims that Westworld infringes its copyright in the Fallout Shelter videogame and alleges the following. First, Westworld copied Fallout Shelter’s “computer or source code,” noting that Westworld contains identical computer glitches as Fallout Shelter.[8]Second, Westworld copied the look and feel of Fallout Shelter, including the “art style, animations […] user interface,” and user perspective.[9]Third, Westworld copied the gameplay mechanics, the “game design … features and other gameplay elements … [or] concepts,” such as double finger-tapping on a room to “zoom” in.[10]

However, Bethesda‘s claims concerning infringement of the look and feel illustrate that a single expression can have different, scaling levels or degrees of fixation for its underlying ideas rather than a strict “fixed” or “not-fixed” categorical dichotomy.  Richard Jones emphasizes that“a work has many different levels of intellectual content, from the outline of the work as a whole down to individual statements or other creations.”[11]It can be difficult to distinguish between general outlines that are more like ideas (such as artistic techniques) and individual statements or creations that are more like expressions (such as the applications of those techniques). Bethesdacontains a discussion of the game’s vanishing point. Bethesdaalleges that “Westworld … uses the same depth, perspective, and vanishing point [as Fallout Shelter] when displaying its rooms … the vanishing point remains centered on the screen, causing the perspective of the rooms to change dynamically and creating a unique look and feel to the room perspectives.”[12]An illustration of the user interface, vanishing point of the above-ground horizon, and the rooms is provided below for Westworld (left) and Fallout Shelter (right):

On one hand, “the cinematic vanishing point” is a common film technique that was borrowed by video games and “provides a vision that is consistent across the ever-widening diversification of cinematic delivery platforms.”[13]   On the other hand,Fallout Shelter and Westworld apply the technique very similarly. The degree of fixation concerning the vanishing point is ambiguous in this case.

Furthermore, Bethesda‘s claim concerning the game mechanic of tapping the phone to “zoom in” demonstrates that, for mobile phone games, game mechanics can easily become idea-expression unities. Idea-expression unities or mergers occur when “the idea and the expression of the idea are indistinguishable.”[14]In those cases, “copyright will only provide protection against identical copying,”[15]or a “minimum,” weak form of protection.[16] For example, in Cinar Corporation v. Robinson, the Court found that the “personalities” and “overall architecture” or structure of a television show concerning well known stories of Robinson Crusoe were semiotic expressions of an idea;[17]for example, the personality of a lazy character was expressed with half-shut eyes and droopy posture. However, one could argue that such personalities and story structures are inseparable from certain storytelling tropes and personality archetypes: lazy personalities can arguably only be visually expressed with eyes and posture.   Bethesdaclaims that “Fallout Shelter uses unique mechanics and transitions when zooming into and out of a particular room.  Fallout Shelter allows the user to double tap on a room to initiate a zoom into that room.”[18]Yet, as Christopher Lunsford notes, “for videogames, courts have applied the merger doctrine …  to technical limitations of the medium.”[19]For a smartphone video game, touching and tapping the screen are often the only possible way to input commands. Therefore, the expression of double-tapping to zoom merges with the technical limitations of a smartphone as a medium to input commands.

Additionally, Bethesda‘s claims concerning the source code of the game demonstrate the difficulty of separating overlapping fixed expressions from potentially non-fixed ideas and idea-expression unities in a smartphone videogame.Bethesda argues that both the look and feel of the vanishing point, and the gameplay of the double-tap zoom feature, emanate from and are tied to the game’s computer code.[20]Computer code is considered a fixed expression, because it is “treated as a literary work” that has been “’fixed’ into circuit boards” rather than paper.[21]This general rule is justified by applying the logic of idea-expression unities in reverse: “just as there is more than one way to add two numbers to get for example, the number 10 (5+5, 2+8, 6+4, 9+1, etc.), there are countless ways to write a computer program to accomplish any given task.”[22]The cinematic vanishing points and double-tap zoom gameplay are arguably less fixed than code, yet Bethesda‘s rhetorical strategy leads to overlap between the fixed code, the potentially less fixed cinematic vanishing point as a technique, and the double-tap gameplay feature as an idea-expression unity.

The case of Bethesda demonstrates that multiple levels of abstraction, idea-expression unity, and overlapping elements of a videogame render the idea-expression dichotomy difficult to apply in practice. Ambiguously fixed expressions, idea-expression unities, and overlapping levels of fixation occur in far more works than merely smartphone games, and American courts should seize Bethesda v. Behaviour as an opportunity to clarify the potential falsity and explore the more intricate nuances of the idea-expression dichotomy.

[1]Richard Jones, “The Myth of the Idea/Expression Dichotomy in Copyright Law” (1990) Pace Law Review 10:3, at page 562-562.

[2]W. Joss Nichols, “Painting through Pixels: The Case for Copyright in Videogame Play” (2007) Colum. J.L. & Arts, 101, at page120.

[3]Copyright Act of 1976, 17 U.S.C. (USA) s. 102.

[4]Copyright Act, RSC 1985 (CA), s. 2 and s. 15.

[5]Moreau c. St. Vincent, [1950] 3 DLR 713, 12 CPR 32, at page 203.

[6]CCH Canadienne Ltée c. Barreau du Haut-Canada, [2004] 1 RCS 339, 2004 CSC 13 (CanLII), at para 8.

[7]“Complaint for Breach of Contract, Inducement to Breach of Contract, Copyright Infringement, Misappropriation of Trade Secrets, and Unfair Competition,” Bethesda Softworks LLC v. Behaviour Interactive, Inc. and Warner Bros. Entertainment, USDC South, Filed 06/21/2018, at para 22 [Bethesda].

[8]Bethesda, at paras 6, 8.

[9]Bethesda, at paras 6, 22, 28, 35.

[10]Bethesda, at paras 7, 22, 29, 38.

[11]Jones, at page 566.

[12]Bethesda, at paras 35-36.

[13]Mike Jones, “Vanishing Point: Spatial Composition and the Virtual Camera”  (2007) Animation2:3, at page 241.

[14]Theodore J Grabowski Jr., “Copyright Protection for Video Game Programs and Audiovisual Displays; and – Substantial Similarity and the Scope of Audiovisual Copyrights for Video Games” (1983) Loy. L.A. Ent. L.J. 139:3, at pages 152-153.

[15]Grabowski Jr., at pages 152-153.

[16]Christopher Lunford, “Drawing a Line between Idea and Expression in Videogame Copyright: The Evolution of Substantial Similarity for Videogame Clones” (2013) Intell. Prop. L. Bull 87:18, at page 104.

[17][2013] 3 SCR 1168, at para 43 and 48-50.

[18]Bethesda, at para 38.

[19]Lunsford,  at page 104.

[20]Bethesda, at paras 48-49.

[21]Nichols, at page 113.

[22]Grabowski Jr., at page 142.

This content has been updated on November 29, 2018 at 10:51.