The White House recently removed an online game called “Build the Wall” after The Tetris Company publicly objected to the game and raised copyright concerns. The game, which had been part of a collection of policy-themed arcade games on the White House website, reportedly required players to stack falling blocks to construct a wall against a “zombie border siege.” Tetris said it had not participated in creating the game and emphasized that it takes copyright infringement seriously. The White House did not publicly say that Tetris’s objection caused the removal.

The episode raises a copyright question that is both old and surprisingly difficult. Nobody owns the abstract idea of arranging falling geometric pieces to complete horizontal rows. Section 102(b) of the Copyright Act makes clear that copyright does not extend to an idea, procedure, process, system, or method of operation. But copyright can protect the particular expression through which those ideas are implemented. And Tetris has litigated that distinction before.

Tetris has been here before

In Tetris Holding, LLC v. Xio Interactive, Inc., 863 F. Supp. 2d 394 (D.N.J. 2012), Tetris sued the developer of an iPhone game called Mino. Xio did not seriously dispute that it had modeled Mino on Tetris. Instead, it made a more interesting argument. It maintained that it had deliberately copied only those aspects of Tetris that were rules, functions, or otherwise necessary to gameplay and therefore outside the scope of copyright protection.

That put the idea-expression distinction squarely before the court. Judge Freda Wolfson agreed with Xio on the basic principle. Copyright could not give Tetris ownership of the abstract game in which geometric pieces fall from the top of a playing field, are rotated by the player, accumulate at the bottom, and disappear when a horizontal line is completed.

But the court rejected Xio’s effort to turn that principle into a broader immunity for copying things associated with gameplay. The fact that an expressive element relates to a game rule does not necessarily make it unprotectable. Otherwise, very little of the audiovisual expression of a video game could ever receive copyright protection.

The court therefore looked at the particular choices Tetris had made in expressing its game. Those included the dimensions of the playing field, the appearance and colors of the pieces, the way they moved and rotated, the display showing the next piece, the shadow showing where a piece would land, the appearance of so-called garbage lines, and other visual features. Viewed together, the court concluded, Mino had copied far more than the abstract idea of a falling-block puzzle game.

The court pointed to Nintendo’s Dr. Mario as a useful counterexample. It shared important aspects of the underlying game concept but expressed them differently. That helped demonstrate that a developer could use the idea without reproducing Tetris’s particular choices. Tetris won summary judgment on its copyright claim.

The useful lesson from Tetris Holding is almost paradoxical: copyright can protect a video game without copyrighting the game itself.

Courts encountered the problem early

Courts were confronting versions of this problem almost as soon as video games became an important commercial medium. In Stern Electronics, Inc. v. Kaufman, 669 F.2d 852 (2d Cir. 1982), the Second Circuit considered a threshold question that seems almost quaint today. Could an interactive video game qualify as a fixed audiovisual work when what appears on the screen changes depending on what the player does? The court held that it could. The recurring audiovisual elements of the game were sufficiently fixed even though the player influenced the sequence in which they appeared.

That same year, the Seventh Circuit dealt more directly with the line between game idea and game expression in Atari, Inc. v. North American Philips Consumer Electronics Corp., 672 F.2d 607 (7th Cir. 1982). The case involved PAC-MAN and a competing game called K.C. Munchkin. The basic maze-chase concept was not something copyright could monopolize. But the court found protectable expression in such things as the appearance, movement, and behavior of the characters and concluded that K.C. Munchkin had copied enough of that expression to support a finding of infringement.

The limits of that protection became clearer in Data East USA, Inc. v. Epyx, Inc., 862 F.2d 204 (9th Cir. 1988). There, the Ninth Circuit considered competing karate video games. The games shared fighters in karate clothing, common fighting moves, referees, scoring, and other characteristics. But many of those similarities flowed naturally from depicting a karate match. Copyright could not be used to prevent competitors from employing the standard or practically unavoidable features of the underlying idea.

Taken together, those cases establish the basic framework that still matters today. A developer may use an existing game idea. A developer may also use features that naturally follow from that idea. The harder question is whether the developer has also taken the original expressive choices through which another creator implemented the idea.

Why the Tetris decision drew attention

The 2012 Tetris ruling attracted attention because Xio had tried consciously to walk that line.

Writing in Ars Technica shortly after the decision, Kyle Orland described the case as an unusually concrete attempt to define when a game clone crosses from permissible inspiration into infringement. The interesting problem was the level of abstraction at which one describes the game. Define Tetris broadly as a game involving falling, rotatable blocks that disappear when arranged in lines, and that general concept remains available to everyone. Move down to the more specific choices through which Tetris implements that concept, and copyrightable expression begins to emerge.

Eleonora Rosati made a similar observation on The 1709 Blog in a contemporaneous discussion of the decision. She focused on the relationship among the idea-expression distinction, merger, and scènes à faire. The problem with defining every element connected to gameplay as functional is that nearly everything appearing on a game screen has some relationship to how the game is played. The real task is separating the abstract idea and those elements inseparable from it from the particular expressive choices made by the game’s creator.

That makes Tetris Holding particularly useful in thinking about the new White House controversy. The relevant question would not simply be whether “Build the Wall” involved falling blocks. It would be how much of the particular expressive implementation associated with Tetris the new game reproduced.

Copyright and political association

There is another dimension to the controversy as well. Creators have a long history of objecting when their works are pulled into political messages they do not support.

One famous example dates to Ronald Reagan’s 1984 presidential campaign. During a September 19 rally in Hammonton, New Jersey, Reagan invoked Bruce Springsteen, referring to the “message of hope” in songs by a musician admired by many young Americans. Springsteen objected to the political association. The episode became an early and enduring example of the tension that can arise when a politician tries to draw upon the cultural meaning of an artist’s work without the artist’s blessing.

A similar dispute arose in 2008 when Heart objected to the use of “Barracuda” in connection with Republican vice-presidential nominee Sarah Palin. Ann and Nancy Wilson asked the campaign to stop using the song and emphatically rejected the suggestion that its use reflected their political views. But the episode also illustrates why an artist’s objection and a copyright violation are not necessarily the same thing. Contemporary reporting noted that the convention venue had a blanket public-performance license from ASCAP that apparently covered the song.

Copyright protects specified exclusive rights. It does not ordinarily give a creator a general veto over having a work associated with a political viewpoint the creator dislikes.

When copyright enforcement affects political speech

The 2008 presidential campaign presented a different version of the problem.

The McCain-Palin campaign found that some of its YouTube videos were being removed in response to DMCA takedown notices sent by news organizations whose broadcast footage appeared in the campaign’s videos. The campaign maintained that the uses involved short clips employed for political commentary and were protected by fair use. On October 13, 2008, its general counsel wrote to YouTube asking the company to conduct a more careful legal review before removing videos posted by political campaigns.

YouTube declined to give political campaigns special treatment. In an October 14 response, the company acknowledged that abusive or erroneous DMCA notices could restrict noninfringing speech during the statutory waiting period, but pointed out that political expression by ordinary users was important too. The deeper problem was misuse of the takedown process itself.

I discussed the controversy as it was unfolding on an October 2008 episode of This Week in Law with host Denise Howell and Fred von Lohmann, then a senior intellectual property attorney at the Electronic Frontier Foundation. (Here is a blog post from Fred at the time.) Denise opened the substantive discussion with the McCain campaign’s letter, and von Lohmann explained that EFF agreed there was a serious problem when copyright takedowns removed political videos using short news excerpts. His concern was with the campaign’s proposed solution: why should candidates receive special protection unavailable to millions of ordinary YouTube users engaged in political speech?

I asked whether the campaign’s proposal nevertheless represented a useful step in the right direction given how close Election Day was. Von Lohmann agreed that the approaching election made the delays especially consequential, while emphasizing that the same urgency applied to political speech by users outside the campaigns.

The discussion is an interesting snapshot of a problem that has hardly disappeared: copyright enforcement mechanisms can themselves affect political expression before anyone ever reaches a court to decide whether the disputed use was lawful.

A few years later, during the next presidential campaign cycle, I wrote on internetcases about another variation when NBC objected to Mitt Romney’s use of Tom Brokaw news footage in a 2012 campaign advertisement. I thought the use was probably fair use, and noted the irony that the very takedown process intended to protect copyright owners could become particularly consequential during an election, when a ten-day delay might render a successful counter-notification practically meaningless.

A different kind of political copyright dispute

The White House/Tetris controversy presents still another variation.

Springsteen illustrates the problem of unwanted political association. Heart illustrates how strongly an artist may object even when existing music licenses complicate the copyright analysis. The McCain/YouTube controversy illustrates the danger that copyright enforcement itself may suppress political speech that could ultimately qualify as fair use.

The Tetris situation is different from all three.

This apparently was not simply a case of a politician playing an existing copyrighted work at an event. Nor was it a case in which a campaign incorporated a few seconds of somebody else’s work to comment on current events. Instead, a new political game was created that was sufficiently reminiscent of Tetris for The Tetris Company to raise a copyright objection.

That brings the analysis back to the same question Judge Wolfson confronted in 2012. One can borrow the idea of a falling-block puzzle game. The harder question is whether the new work also borrows the expressive choices that make the resulting game recognizably Tetris.

The political message may explain why the copyright owner particularly objects to the use. But that objection does not answer the copyright question. Copyright still requires separating the unprotectable idea from the protectable expression.

The line remains the same

There has been no judicial determination that the White House game infringed Tetris’s copyright. The game disappeared after Tetris objected, and that may be where the matter ends. But the episode is a useful reminder of a copyright problem that courts have been working through for more than forty years.

Anyone remains free to make a puzzle game involving falling pieces, rotating shapes, completed rows, and increasing difficulty. Copyright does not give Tetris ownership of those ideas. Nor does it prevent later developers from using expressive features that necessarily follow from those ideas. But Tetris Holding, LLC v. Xio Interactive, Inc. demonstrates why “the rules are free” does not mean “everything that makes the game recognizable is free.”

The difficult line, then as now, is the line between the idea of the game and the expression that makes it Tetris.