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Frybarger v. Int'l Business Mach. Corp.
812 F.2d 525 (9th Cir. 1987)

Before the introduction of sprawling virtual environments, ragdoll physics, and parallel GPUs, the video game industry lived in an 8-bit world. As is still the case, the creative content of games was and is limited by the machines of the day. If multiple developers wanted to bring an alien-invasion game to the market in the early 80’s, there was a high likelihood that they would all resemble something close to a Space Invaders “clone” due to the restrictive 8-bit, 2D video game capabilities. Examples of Space Invader “clones” include games like Galaga, Galaxian, and Gaplus.

One of the legal doctrines that allowed game to coexist is the scenes a faire principle of copyright law. This doctrine states that the expression of an idea that is “as a practical matter indispensible, or at least standard, in the treatment of a given [idea],”[1] is not protectable under copyright law. When applied to Space Invaders and its so called “clones”, the “clones” can make a case for not infringing on Space Invader copyright because the idea of an alien-invasion game includes scenes of a protagonist firing weapons towards incoming alien antagonists. Thus, it’s easy to see how strikingly similar games were able to go to market without copyright liability issues. Scenes a faire protects the indispensible aspects of creative expression because indispensible aspects of a topic do not bring anything new to the topic, and therefore do not warrant protection under copyright laws.

An explicit example of the scenes a faire principle was seen in the case of Frybarger v. IBM, in which a former employee, Anthony Frybarger, of the Gebelli game development company sued the company for infringing the copyright of his creative work, the game Tricky Trapper. IBM contracted with Gebelli to develop video games for the IBM PC Jr. computer. Mr. Frybarger had the idea for a game called Tricky Trapper in 1982, and constructed a working copy, which he demonstrated to his company that same year. Gebelli later released a similar game, Mouser, which Frybarger believed was copied from his original plans for Tricky Trapper. Once Frybarger registered the copyright to his Tricky Trapper game, he brought a lawsuit against IBM and Gebelli for copyright infringement.

According to the Ninth Circuit Court of Appeals, “[t]o establish a claim for copyright infringement, plaintiff must show that 1) she owns the copyright in the allegedly copied work; 2) defendant had access to the work; and 3) plaintiff's and defendant's works are substantially similar.” IBM conceded that Frybarger owned the copyright to Tricky Trapper and that Frybarger had shown IBM the plans to Tricky Trapper before Mouser was released. However, IBM was confidant that the court would not find Mouser and Tricky Trapper to be substantially similar. After the court was presented with the two works, the court concluded that the two games had “numerous” similarities, but that each similar feature “constitutes a basic idea of the videogames,” and the expression of these basic ideas are precluded from copyright protection under the scenes a faire principle. The similarities found by the court include there being a single protagonist that has legs and a face, and that the single protagonist moves vertically and horizontally between rows of pivot points. Also, the two games have more than one antagonist, and each antagonist moves toward the general location of the protagonist. These similarities seem basic and simple, but in an 8-bit environment, these similarities are necessary to making an a mousetrap game in a two-dimensional maze. The Circuit Court sided with IBM and dismissed Frybarger’s copyright infringement claims on summary judgment.

With the advent of modern graphics, developers nowadays have to be more careful to respect copyrights. The amount of new features added to games in the past two decades and the potential to create unique three-dimensional universes makes it very hard to copy the premise of another game and claim the similarities are scenes a faire. Nevertheless, the scenes a faire principle has been brought up in modern court cases and still applies today. As a result, it is good practice for developers to understand that scenes a faire may limit the scope of copyright protection that video game content may receive.


[1] Atari, Inc. v. North American Philips Consumer Elecs. Corp., 672 F.2d 607, 616 (7th Cir. 1982) (quoting Alexander v. Haley, 460 F.Supp. 40, 45 (S.D.N.Y. 1978))

Thanks to Mike Harkness for his assistance with this post.
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