Monday, November 5, 2012

Scrabble and Intellectual Property

My post on the differences between Scrabble and Words with Friends continues to garner huge numbers of hits, as well as a lot of comments. A number of comments have expressed anger or bewilderment over Words' transparent rip-off of Scrabble. While some related legal issues can be murky -- and the ethical issues are murkier still -- there is one thing that is not in doubt: Zyngo, the makers of Words with Friends, are in no danger of being successfully sued by Hasbro. The reasons why are alluded to in the comments of the other post, but there seems to be enough interest/emotion regarding this that I figure it warrants its own post.

Different types of intellectual property

First things first, a little bit of intellectual property 101. There are three ways of protecting intellectual property in the United States, and indeed in most of the world. I am not a lawyer by any means, so I will not pretend to give a comprehensive explanation of what each of these are. But in short: A patent is something you use to protect an invention or an idea; a copyright is something you use to protect a specific work, like a book or a song or what-have-you; and a trademark is something you use to protect a name.

All three of these can apply to certain aspects of Scrabble, and Zyngo could have -- but clearly did not -- infringe on any of them. I will take each type of protection one at a time.

Scrabulous Trademarks

The easy one first: Trademarks. As mentioned before, trademarks are used to protect a name. It sounds simple in principle, but it can actually get very complicated. For an example, look up the long-running dispute between Apple Computers and the Apple Records, the label founded by The Beatles.

Again, I am not a lawyer, and there are better resources to learn about the vagaries of trademark law. But for our purposes, it's really simple: Zyngo didn't use any words that sound anything like "Scrabble" or "Hasbro" or anything else that could have gotten them into trademark hot water. Not an issue.

It bears mentioning that an early Scrabble clone on Facebook went by the name "Scrabulous" -- and unsurprisingly, there was a lawsuit. Frankly, the name was a really dumb move and they probably didn't think it through that much. They changed their name to Lexulous and still exist to this day. Other changes were made as well to get Hasbro to drop the lawsuit, which we'll discuss when we get to copyright. But first, another easy one...

Patents, Deadlines, and Expiration Dates

So it turns out you actually can patent a game. This could get really sticky, as patent law is tremendously murky, and I say this as someone who has multiple patents to his name (Google me!).

Luckily, patents expire after a relatively short amount of time (typically 20 years in the United States), so even if there were a patent on Scrabble, it would have expired long ago. Furthermore, it seems that the only Scrabble-related patent dealt with tile design rather than gameplay, which would be a non-issue for an online game even if it hadn't expired before I was even born.

And don't entertain any notions that Hasbro could file a patent today. While the law in the US recently changed (to be even more restrictive), it's never been the case that you could file a patent any later than one year to the day after your invention became public. The deadline for protecting Scrabble passed sometime around when Hitler invaded Poland.

Napster's Bane

Which leaves only one form of intellectual property protection: Copyright. You know, the reason 95% of your music collection is technically illegal.

Copyright is used to protect an "original work", like a story or a song or a picture whatever. I'm actually a little shaky on what defines an "original work", but typically if you can write it down or record it, that would count.

So what in Scrabble counts as an "original work"? The board for sure -- and this is why Words with Friends uses a different board layout. The instructions would also count, but you can always just paraphrase them (similar to the way you can copyright a cookbook, but you can't really protect an individual recipe). An argument could be made that the tile frequency and scoring might count, since that is something you could write out in a tabular form (just as I have done in my other post).

It is notable that Lexulous nee Scrabulous changed exactly these things when they got Hasbro to drop the lawsuit, and it's notable that Zyngo has altered all of these from the original Scrabble as well.

Final thoughts, and a word about ethics

Have no doubt: I'm sure Hasbro would like to have their official Scrabble app be the only game in town. If there were a reasonable chance of them winning a lawsuit, they would take it.

Again remembering that I am not a lawyer, I think that if for some reason Zyngo decided they wanted to keep the tile frequencies and scoring the same, that could get really dicey. I don't think it's a slam dunk, but it would be murky enough that I'm pretty sure Hasbro would sue, just to try their luck. Of course, it's totally not worth it (for any of the parties involved, really) so Zyngo is playing it safe and making sure they change enough that any attempt at a lawsuit would get laughed out of court.

So -- we know Words with Friends is legal. Is it ethical? Well, I'm not going to make a strong pronouncement here, but I will say this: Hasbro could easily have the #1 word game app on Facebook due to the distinct advantage imparted by their trademark, if they also had the best app. Furthermore, I can't imagine that Words with Friends significantly cuts into sales of physical Scrabble games (even if this travesty were actually popular, note that Hasbro got the rights to sell it -- hah!). If anything, a popular and playable Scrabble clone probably stimulates sales, as people get hooked online and then want to play it in person.

Lastly, it's worth noting that Scrabble was a similarly close tweak of an earlier game by the name of Lexiko. So don't cry for Hasbro, please.

5 comments:

  1. Nice post. Am I missing something on why you keep calling Zynga Zyngo? Haha.

    Also, not knowing all of the facts, I think Lexiko came out in 1931, then it was called Criss-Cross Words before being rebranded as Scrabble in 1948. It didn't start getting mass-produced until 1952 when Selchow & Righter bought the rights. Then Coleco had the rights in 1986, which finally fell into the hands of Hasbro in 1989. J.W. Spear & Sons, a subsidiary of Mattel, owns the rights outside of North America.

    Milton Bradley and Parker Brothers both rejected Lexico in the '30s. Both are now owned by Hasbro.

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  2. It seems to me that WWF is easier (a nicer way of saying dumbed-down) than Scrabble.

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  3. It's worth noting that the physical Words With Friends game board (available from many retailers) is made by Hasbro. Somehow, I doubt they mind riding on the coattails of the popularity of Words With Friends.

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  4. great write up..i love reading it and i love your interesting article..when i was a kid i used to watched mom and her sisters playing scrabble..its very educational and challenging.

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