From Scrabulous to Wordscraper: Does the new game pass legal muster?

Oops. An earlier version of this post incorrectly associated the John Marshall Law School in Chicago with the University of Chicago. The two are not affiliated.

Scrabulous got them in trouble, but will Wordscraper fly?

After Hasbro filed a copyright and trademark infringement lawsuit against the developers of Scrabulous, the Indian brothers who came up with the popular Facebook application introduced a new word game -- Wordscraper.

Unlike Scrabble, to which Hasbro owns the copyrights and trademarks, Wordscraper has round tiles instead of square ones. Its tiles don't display the points associated with each letter as in Scrabble. And the point system is arranged differently on the board, which also introduces a quadruple word score that's not available in authorized Scrabble. Wordscraper, however, does let players customize the board, allowing anyone to rearrange the configuration to exactly match Scrabble.

Hasbro hasn't given any indication that it will drop its current lawsuit for past damages from Scrabulous.The question is whether the toy maker will pursue legal action over Wordscraper. Are the changes to the new game enough to scrape past the legal restrictions set out by Hasbro's copyrights on Scrabble? Maybe not.

"I’m not convinced that it is different enough," said Henry M. Sneath, an intellectual property attorney and a board member of DRI -- The Voice of the Defense Bar, an organization of 22,000 defense lawyers. "Copyright infringement in particular does a very detailed factual analysis of whether or not content is substantially similar to the original. That’s the test: substantial similarity."

One question judges will be looking at is whether the developers of Wordscraper, brothers Rajat and Jayant Agarwalla, relied on Scrabble ...

... to create their game. "The fact that they had an almost exact copy of Scrabble, and only under the threat of litigation did they come up with this new work, might put them in a hole at the start."

Still, the Agarwallas have options for digging themselves out. They can, for example, argue that their game is a completely different take on a word game on a square board, Sneath said. "Copyrights don’t protect ideas, only expressions," he said.

Doris Long, a professor of intellectual property law at the John Marshall Law School in Chicago, says the new game has a good chance of passing legal muster. "I do think the cosmetic changes on the new Wordscraper board and the removal of any links to Scrabble rules or dictionaries helps dodge the copyright bullet," Long said.

Does the ability to let players create boards that duplicate the set-up of Scrabble create a legal hazard? Not necessarily.

"Copyright for games is relatively narrow," Long said. "Hasbro certainly doesn't own the rights to a crossword puzzle game. But by giving the power to the end users to control the design of the board, including presumably the ability to change the board design back to the Scrabulous design, Hasbro could still pursue a contributory infringement claim if it wanted to under the 'active inducement' test. ... But to win, Hasbro would have to show that the designers actively encouraged gamers to change the board back to the old Scrabulous. So far they don't seem to be stepping over this line."

In a statement, Hasbro said: 

Hasbro has an obligation to protect its intellectual property and will act appropriately when necessary. We recently filed a lawsuit against the developers of the infringing Scrabulous application, and we are pleased that the unlawful application has been removed from Facebook. We evaluate every situation on a case-by-case basis and have no comment regarding the Scrabulous developers’ new application at this time.
 

-- Alex Pham

Image: Wordscraper

Comments

[Peter]

Frankly, Scrabble isn't that much of a great game because of its reliance on silly short stupid words one must memorize to be a decent player. Below is another competitor which will appear on Facebook in the near future.

http://www.wildwords.us

With a little luck, maybe the Scrabble versus the Indian Brothers will become moot.

[Barnaby Dawson]

A game like scrabble survives not because of any special design feature (tons of games are invented every year that are just as well honed) but because of the critical mass of users that they gain. In the modern era with collaborative design and social networking we have the potential for new games to emerge from websites like facebook. What these two indian chaps have done for us with wordscraper is to give us the first taste of that future.

Intellectual property law is there to encourage creativity which could not otherwise have been supported economically. Intellectual property law should be no stronger than it needs to be for this purpose because IP law puts a price tag on certain forms of speech and expression. IP law does not need to be strong enough to protect a game like scrabble and it should not be that strong.

We are seeing the birth of collaborative game design and the death pangs of the old copyright laws. They are no longer fit for purpose.

First, copyright protection is only supposed to last 28 years max, according to the founding fathers. The whole point is to be a TEMPORARY monopoly to encourage creativity. With all the unconstitutional copyright term extensions that have happened since then, copyright law is still active even though the creator of Scrabble has been dead for years.

Second, Scrabulous was not a copyright infringement of Scrabble. It had the same rules, and the same layout of colored squares, but that's it. You can't copyright the "mechanical or utilitarian aspects" of a game, only the visual and literary design. Paraphrase the rules and it's not a copyright infringement.

[Confused]

One article by the New York Times stated that Wordscraper was available on Facebook in January. I went on Facebook, and though I couldn't find the creation date, I did notice that there was an update to the application back in April. EVERY other article on this, though, says it wasn't "unveiled" until after the whole suit with Scrabulous happened last week. Anyone know the deal on this?? I ask because of this:

One question judges will be looking at is whether the developers of Wordscraper, brothers Rajat and Jayant Agarwalla, relied on Scrabble ...

... to create their game. "The fact that they had an almost exact copy of Scrabble, and only under the threat of litigation did they come up with this new work, might put them in a hole at the start."

If Wordscraper was around before (back in January when the NY Times says it was available), can the statement above really be true? I'm researching this for work at a firm and conflicting information is not helping me at all!

[Alex Pham]

Hi, Confused.
I checked the application on Facebook, and it seems that Wordscraper was launched several months ago. If you click on "Check Updates" link on the application description page, you will find that the developers updated the app in April by adding Blitz mode.
Alex