Are Game Mechanics Copyrighted? EU, Germany and US

A game mechanic as an idea or rule is generally not protected by copyright in the EU, Germany or the US, because copyright covers expression and not ideas or methods. The code, art, sound and text of a game are protected, copying a game's specific look can infringe, and in Germany a sufficiently original game flow set down in written rules may also be protected.

This page covers copyright only. A mechanic can still be caught by a patent, and nothing here is a statement about any specific mechanic.

What in a game does copyright protect?

A video game is not one thing in law. In Nintendo v PC Box (C-355/12, paragraph 23) the Court of Justice of the EU described video games as complex matter: a computer program plus graphic and sound elements with their own creative value. The program falls under the Software Directive. Graphics and sound that are part of the game's originality are protected, together with the whole work, under Directive 2001/29/EC.

The rule on ideas below comes from software law. It does not take protection away from art, music, story or characters.

What does EU law say about ideas and functionality?

Article 1(2) of the Software Directive 2009/24/EC protects "the expression in any form of a computer program" and states that "ideas and principles which underlie any element of a computer program, including those which underlie its interfaces, are not protected by copyright under this Directive." Recital 11 adds that logic, algorithms and programming languages are unprotected to the extent that they comprise ideas and principles.

The leading case is SAS Institute v World Programming (C-406/10, Grand Chamber, 2 May 2012). It interpreted the earlier Directive 91/250/EEC, of which Directive 2009/24/EC is the codified version. World Programming had reproduced the behaviour of SAS software without access to its source code. The Court held that:

• neither the functionality of a program nor its programming language or data file format is a form of expression of that program (paragraphs 39 and 46);
• protecting functionality would make it possible to monopolise ideas, to the detriment of technological progress and industrial development (paragraph 40);
• a person with a licensed copy may observe, study and test how the program works to determine the ideas behind it, under what is now Article 5(3) (paragraphs 61 and 62).

The judgment has limits. Taking the part of the code that implements those elements can be partial reproduction (paragraph 43). A language or file format may still be a protected work under Directive 2001/29/EC if it is its author's own intellectual creation (paragraph 45). Reproducing elements of a protected user manual can infringe that manual (third point of the ruling).

Under Article 8 of the Directive, a contract term that conflicts with Article 5(3) is void.

SAS concerned business software. We found no Court of Justice ruling on game mechanics as such, so applying it to mechanics is a reasoned inference and not a holding.

What does German law say?

Germany implements the directive in §§ 69a to 69g UrhG. Under § 69a(2), all forms of expression of a program are protected, while the ideas and principles underlying an element of a program, including those underlying its interfaces, are not. § 69d(3) lets an authorised user observe, study and test a program to find those ideas and principles, through acts such as loading, running or storing it that the user is entitled to perform. Under § 69g(2) a contract cannot override this.

For games beyond the code, § 2(2) UrhG protects only personal intellectual creations, and German case law is more nuanced than the software rule:

• In the Zahlenlotto judgment of 17 October 1961 (I ZR 24/60), the Federal Court of Justice said that game inventions as such have no copyright protection. It also said that written game rules can be protected, and that the required individual character can lie in their thought content and not only in their wording. On the facts it refused protection.
• A paper for the German game authors' association reads that judgment as protecting the game flow laid down in rules when it reaches the required level of originality, and it says the court refused protection because the game differed only slightly from long-known games. That paper comes from an interested side.
• The Mannheim Regional Court (29 February 2008, 7 O 240/07) held that the idea of a dice game, meaning its material, number of players, goal, flow and scoring, is not protectable as such. Following the Federal Court of Justice, it said that protection of a rule's content is a question for each case. It can arise if the rule goes beyond plain instructions to the players, for example through a creative story. On the facts, the rules of those games were functional texts, so their thought content was not protected, and score sheets that followed logically from the rules were not works either.

These are board and number game cases. We found no published German decision that rules directly on the mechanics of a digital game.

What does US law say?

Under 17 U.S.C. § 102(b), copyright does not extend to "any idea, procedure, process, system, method of operation, concept, principle, or discovery", in whatever form it is described. The Copyright Office's Circular 33 applies this to ideas, methods and systems, and treats names, titles and short phrases as uncopyrightable as well.

The US court in Tetris Holding v. Xio Interactive stated that game mechanics and rules are not entitled to protection, while expressive elements of a game can be. Where that line runs is the hard part.

Where does copying the look cross the line?

Two US district court cases from 2012 show the line from opposite directions. Neither binds courts in Europe.

Tetris Holding v. Xio Interactive (D.N.J., 30 May 2012). Xio released a game called Mino and argued that everything it took was rules or function. The court granted summary judgment to the Tetris side on copyright and on trade dress.

• The court rejected the idea that any expression related to a rule is unprotected, because almost all expressive elements of a game relate to its rules in some way.
• It said Xio could have designed a puzzle game with differently shaped pieces, since the idea of fitting shapes into lines can be expressed in nearly limitless ways.
• It treated the design and movement of the pieces, the dimensions of the playing field, the display of garbage lines, the ghost piece, the next-piece display, the colour change on locking and the fill-in at game over as expression.
• It noted that those elements alone might not amount to infringement. What troubled the court was the wholesale copying of the look, and it found that a user could not tell the two games apart.
• The trade dress claim rested on how Mino was advertised and packaged, and the court found the colour and style of the pieces and the field dimensions non-functional.

Spry Fox v. LOLApps (W.D. Wash., No. 2:12-cv-00147-RAJ, order of September 2012). Spry Fox claimed that Yeti Town copied its game Triple Town. This was a ruling on a motion to dismiss, so the court decided only that the claim was plausible and not that infringement had happened. We read the order through Eric Goldman's report, not the original.

• According to that report, the court treated several gameplay and interface elements as standard or functional, including the grid, points and coins, and the marketplace structure.
• The court said Spry Fox's copyright gave it no monopoly over the underlying idea.
• The claim survived anyway. The court pointed to the object hierarchy and the depiction of the playing field as a similar setting and theme, and it compared the wild creatures and landscapes of the two games.
• It said a title is not itself copyrightable, while the choice of the name Yeti Town could still bear on similarity.

The case settled. MCV reported that the deal gave Spry Fox ownership of the Yeti Town IP, with other details confidential.

Read together, the cases suggest that re-skinning a game does not by itself keep you clear, and that an overall impression can matter more than any single element. They do not give a checklist.

What does this not answer?

Copyright is one layer. Patents, trademarks, unfair competition law and contracts can apply to the same game, and Article 8 of the Software Directive leaves those rules untouched. For the practical side, see Can you copy game mechanics? and, for your own work, how to protect a game idea.