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

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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:

-- Alex Pham