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Scrabble vs. Scrabulous: A lesson in copyright law

July 30, 2008 |  7:03 pm

ScrabbleTuesday's demise of the Scrabulous application on Facebook led some of our readers to question the legal claim Hasbro has on Scrabble, the official game. The toy company last week filed a copyright and trademark infringement lawsuit against the developers of Scrabulous, an online word game that played very much like Scrabble.

Invented in 1938 by a New York architect named Alfred Mosher Butts, Scrabble counts millions of players worldwide. Hasbro estimates that more than 100 million copies of the board game have been sold in 29 languages and 100 countries. Hasbro, through its subsidiary Milton Bradley, bought the North American rights to the game in 1987.

To answer our readers' questions on Hasbro's copyright and trademark case, we turned to Ian Ballon, an intellectual property and Internet attorney with Greenberg Traurig. What follows is an abridged interview with Ballon, who also wrote the four-volume treatise, "E-Commerce & Internet Law."

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Q: Many people think that because Scrabble is 70 years old, it should be in the public domain. Why isn't it?
A: A copyright claim lasts for the life of the author, plus 70 years.

Q: Butts passed away in 1993, which would extend the copyright in this case to the year 2063.

A: Yes, but it’s really important to remember that the plaintiff is also asserting a trademark claim, and that lasts as long as you exploit it. Marks like Coca-Cola, Mercedes -- those can continue indefinitely as long as it remains in use. The law prevents third parties from making both literal use of a trademark as well as uses that are confusingly similar. The term “Scrabulous” is obviously intended to evoke the name Scrabble. Plainly, the people who created the game were trying to evoke the Scrabble mark.

Q: What’s the policy argument for having copyrights in the first place?
A: Th term of protection is what allows authors, composers and other creators to successfully exploit their works. If material immediately came into the public domain, then there would be no financial incentive to write a song, film a movie or undertake similar creative ventures. The reality is that all of the great authors, composers and artists wouldn’t be able to make a living. The public benefits by encouraging the arts. In return, artists and creators are compensated. If you took that away, you would have a much smaller body of creative works.

Q: So why create an expiration date?
A: It’s a balance that the framers of the Constitution had to make. They wanted to create financial incentives for artists and creators. But they also wanted to foster free speech. The quid pro quo is that after the period expires, a work comes into the public domain.

Q: Why 70 years?
A: That was fixed by an international treaty so that U.S. authors, performers and creators have the same right as people in other countries. The term of protection used to be shorter.

Q: What if the creators of Scrabulous were to change the name to “XYZ Game” and tweak the board and point system for their application. Would that make it legally permissible?
A: People are always free to create their own original games. But if they copy the creative expression of a third party, or they try to mimic the logos or trademarks for a famous brand, they will typically be enjoined. Intellectual property law protects against copying and unfair competition. But people are always allowed to engage in fair competition which would require them to create their own original game. The law requires a minimal level of “original and creative expression” to be entitled to copyright protection.

-- Alex Pham

Image courtesy of Electronic Arts

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