27
Sep/12

I Don't Think The Protagonist of "Gone With The Wind" Can Be An Alaskan Gold Miner


For one thing, the burning of Atlanta would seem out of place.

This Western District of Washington case has a common fact pattern: plaintiff’s and defendant’s computer games are similar in the sense that the ‘gameplay’ (the rules of the game), is very similar, but the ‘skin’ (the setting and characters and interface) are different. Gameplay is not protectable. However, as the Court notes:

A video game, much like a screenplay expressed in a film, also has elements of plot, theme, dialogue, mood, setting, pace, and character. Spry Fox took the idea underlying Triple Town and expressed it with its own characters, its own setting, and more. These objective elements of expression are within the scope of Spry Fox’s copyright.

Some of Spry Fox’s expressive choices are not protectable because they are scènes à faire in many video games (and often in games in general). For example, the use of points and “coins” to reward a player’s progress through a game is standard.

So far, so good. Then we get to this sentence:

“. . . the object hierarchy coupled with the depiction of the field of play comprise a setting and theme that is similar to Triple Town’s. A snowfield is not so different from a meadow, bears and yetis are both wild creatures, and the construction of a “plain” is not plausibly similar to the construction of a “patch””

I concur with Prof Goldman that this sentence is, uh, unclear. Also, the Court notes that (1) the name YETI TOWN is similar to TRIPLE TOWN; and that (2) that alleged similarity is relevant to a copyright analysis, is also, uh, interesting.

And now, from our perhaps not so instructive ‘put another way’ department. The Court notes:

There are apparent differences between games (for example, yetis are not bears and “bots” are not campfires), but a court must focus on what is similar, not what is different, when comparing two works. Put another way, a writer who appropriates the plot of Gone with the Wind cannot avoid copyright infringement by naming its male protagonist “Brett Cutler” and making him an Alaskan gold miner instead of a southern gentleman.

Yes, if in someone else’s novel a Southern gentleman and a scallawag fight over a Southern belle, against the backdrop of the Civil War, then small differences such as name changes would not avoid infringement. However, if a gentlemanly Alaskan miner fought a rakish miner over an Alaskan belle against the backdrop of, uh, some big event in Alaska, then I’m not so sure. The characters and plot of GWTW are intertwined with the time of the Civil War to the point that I suspect that the setting change would force the plot and characterization to a level of abstraction that would probably avoid infringement. Unless the author insisted on having the Eskimo maid say ‘I don’t know nothing ’bout birthin’ no babies.’ My point is merely that the example doesn’t really illustrate the Judge’s point.

yeti town copyright decision