0.
What is worse, Piracy or Plagiarism? The new media usually suffers from both, where downloading games causes grave harm for game developers, causing not only loss of sales, but also crashing servers. Plagiarism, on the other hand, boosts creativity and creates, based on the same new ideas, innovation and marvel. In this short lecture, which will be brought today at Emily Lutzker‘s New Media Colloquium (if you read this and want to come, msg me) .

1.
So first we have to define copyright in order to discuss it. The 1709 Statute of Anne was the begining of modern copyright law. The statute of Anne, wishing to encourage creativity, granted original authors a period of 21 years in which they will have a monopoly on printing their books. Afterwards, they will still own their work, but the collective will have the right to reproduce it, create additional changes or sell it to other people; after 21 years, works would convey themselves into the Public Domain. Why was the Statute of Anne so important? Wasn’t there any plagiarism before 1709? Well, the invention of the printing press assisted in making infringing copies and artists addressed their concern with the legislator, which in return allowed them to exercise a monopoly. Approximately until the 1970s, there was no social problem with copyright, as the purchase of a book, movie or sound recording was strictly bound to the physical media it was sold on. When the home video recorders came, a slight problem occurred (f.e Sony v. Universal), however, users needed to both have the TV receiver and purchase a video-cassette in order to record. The double-cassette tape created similar problems; but still, a connection between the physical media and the intellectual media was consistent. And then came the PC, that enabled home copying of protected works in masses, and without connection to the ownership of physical media. This is where we begin our journey, of Plagiarism in a virtual state.

2.
Plagiarism has always existed, from West Side Story copying from Shakespeare’s Romeo and Juliet, to the adaptation of Thomas More‘s Utopia being partiality influential on George Orwell‘s Nineteen Eighty Four. Plagiarism existed in folk tales, where stories were adapted and amended and in children’s tales, such as the Brothers Grimm‘s tales were adapted by Disney, either as direct copies (Snow White) or as Fantasia, where Disney used popular music in their work. When we discuss Disney, most of it is purely public domain works, so the plagiarism is legal, but there were other accusations of not-so-legal copyright violations.

2.1
The problem of plagiarism is a moral problem, mostly, and not a legal problem: a person claiming credit over another person’s creation. Taking away the original credit detaches an author from his mental link to his work and allows the new Author to gain credit and prestige based on another person’s work. Plagiarism, more than any other characteristic, is fraudulent. However, as a society, we would like to see it when it adds new value; for example, cameo roles in movies such as Gene Hackman‘s apperance in Enemy of the State, while slightly plagiarises his role in The Conversation, was still an amazing gesture to the 1970s movies. When Damien Rice covers Prince‘s When Doves Cry and adds a flavour of Led Zeppelin‘s Babe I’m Gonna Leave You, it’s a desired activity, not something we wish to exclude from the world. So where do we draw the line? Is credit sufficient?

3.
[Partially taken from the Hebrew Post] In general, the law and the court’s ruling state that You cannot grant copyright on a game’s rules or it’s concept, just on the physical expression of such game (Frank Morrissey v. Procter & Gamble) The physical and visual aspects of the game (Clause 5 to The Israeli Copyright Act) is what is deemed adequate for defence. Both Israeli and US courts awarded protection from a substantial copying that was more than inspiration (Atari v. North American Philips, 672 F.2d 607). In a recent case, where an Indian company created a game similar to Scrabble, the Indian court ruled that while one can protect the trade-name of Scrabble, the rules of the game were uncopyrightable (Mattel, Inc. v. Agarwalla):

“In the realm of copyright law the doctrine of merger postulates that were the idea and expression are inextricably connected, it would not possible to distinguish between two. In other words, the expression should be such that it is the idea, and vice-versa, resulting in an inseparable “merger” of the two. Applying this doctrine courts have refused to protect (through copyright) the expression of an idea, which can be expressed only in a very limited manner, because doing so would confer monopoly on the ides itself. ”

The Israeli supreme court recently ruled on the matter (CA 9678/05 Betimu v. ARRABON -HK- limited) and paved the king’s road to copyright protection on an Idea. This matter began in the district court of Haifa, where the supreme court accepted most of the district court’s ruling (C 399/04 Limited. ARRABON HK v. Betinu). In this case, the defendants designed and imported a game similar to the plaintiff’s board game, which included a printed circuit board and game cards. The games were so similar, that one game’s cards worked with the other’s printed circuit board.

The (district) court asserted that the claim for copyright infringement is substantial similarity between the two works. “If there’s a substantial similarity, which is not reasonably coincidental, than the plaintiff’s copyright was breached”. In the court’s eyes, a cosmetic difference is insufficient, but there must be a material difference between the games. (In a  recent case, of C 2469/02 Hasbro v. Li-Dan, the court had similar findings, with only a slight difference which is irrelevant here).

3.1
Plagiarism in computer games is almost as old as computer games themselves. Space Quest III included an arcade game called Astro Chicken which was similar to Atari‘s Lunar Lander (and quite a lot of other examples). However, most of the computer games included such Games within Games as a homage or pastiche, and not as the main profit point of their game. When building on another person’s idea in order to generate profit, then the problem arrives.

3.2
A great legal example was the case of Williams v. Artic. Williams sold arcade games during the late 1970s, one of these games was called Defender. “In the DEFENDER game, there are symbols of a spaceship and aliens who do battle with symbols of human figures. The player operates the flight of and weapons on the spaceship, and has the mission of preventing invading aliens from kidnapping the humans from a ground plane“. Artic was also a distributor of arcade games, it “developed” Defense Command which was virtually similar to Defender, “The result is a circuit board “kit” which is sold by Artic to others and which, when connected to a cathode ray tube, produces audiovisual effects and a game almost identical to the Williams DEFENDER game including both the attract mode and the play mode. The play mode and actual play of Artic’s game, entitled “DEFENSE COMMAND”, is virtually identical to that of the Williams game, i.e., the characters displayed on the cathode ray tube including the player’s spaceship are identical in shape, size, color, manner of movement and interaction with other symbols“. Williams sought damages and an injunction from Artic, and the court asserted that Artic copied the game (in that case, it was an actual copying of material parts in the software’s ROM) and ruled in favour of Williams: “The result is a circuit board “kit” which is sold by Artic to others and which, when connected to a cathode ray tube, produces audiovisual effects and a game almost identical to the Williams DEFENDER game including both the attract mode and the play mode. The play mode and actual play of Artic’s game, entitled “DEFENSE COMMAND”, is virtually identical to that of the Williams game, i.e., the characters displayed on the cathode ray tube including the player’s spaceship are identical in shape, size, color, manner of movement and interaction with other symbols”

4.
But where does the line draw, what if there’s no exact copy, but only major inspiration. Here our case study comes to force: this is the story of Limbo of the Lost. Limbo of the Lost was a video game developed since the 1990s by three friends (at least according to their claims), which takes  place in the Bermuda Triangle; once out to the shops, many critics discovered disturbing similarities between the game and other games. Copying directly from games such as Elder Scrolls: Oblivion and several other games. While a statement claiming that the developers of  Oblivion are  intending to sue the developers of Limbo was made. There was no actual lawsuit. The game went back to the wastebasket of the Internet and was doomed forever.

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The question of plagiarism and its morality is both a fair use question and a profit centre question. If we want to pay a tribute to a certain work, game or person in one of our works (for example, pay tribute to Pulp Fiction’s Marsellus Wallace as a character in our computer game) we have to ask ourselves is he the main issue here. If we just copy, without adding new features and new value, then it’s surely wrong.