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LGJ: 3D Dot Game Infringement

Mark Methenitis
Mark Methenitis|@LawoftheGame|October 10, 2009 1:00 AM
Each week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:
If you're like me, then you've likely been following Joystiq's coverage of 3D Dot Game Heroes and thinking "I really, really hope this gets translated and released in the US." After all, if you're a gamer like me then you love the idea of a 3D homage to the 2D games you grew up with. Of course, it's less likely that you're a lawyer like me, and so it's also less likely that you read through the comments and had an immediate reaction to the countless cries of copyright infringement in the game. Those repetitive, vocal cries have brought me to this column, which aims to answer the big question: is 3D Dot Game Heroes copyright infringement?

Let me start off by saying the analysis here is just my opinion, and a court could always find otherwise. Where this discussion really needs to start is what elements seem to be infringing. Now would be a good time to view the trailer or some screenshots, if you haven't yet. The main complaints I've heard, and can see from the trailer, are the environments (both overworld and dungeon) bear a striking resemblance to the Zelda universe (The Legend of Zelda and Link to the Past, specifically), while the hero characters bear a striking resemblance to those from the Final Fantasy and Dragon Warrior past. Some of the monsters also bear quite a resemblance to Zelda baddies. And, of course, the music is certainly inspired by classic Zelda music. So, case closed, right? Well, no, that's not how copyright infringement works.
Copyright infringement has two pretty simple elements. The first is that someone has a valid copyright. That's not even in question with regard to Zelda or the other works noted. The second element is that the accused infringer copied the work. Of course, by copied, we mean the definition of copied specific to infringement cases, which doesn't mean simply "something that looks like something else." More importantly, it has to be kept in mind that copying here only applies to the expression (the characters, storyline, etc. as they appear in the work) and not the idea they might represent. Finally, as we've discussed before, gameplay mechanics can only be protected by patent, and there are no patents to Zelda's gameplay.

So, then, what is copying in this context? Copying is a showing of a substantial similarity between the two works such that an ordinary person would think that the infringer has unlawfully taken material of substance and value from the work. Of course, that's not terribly clear, nor is any of the discussion that surrounds copyright infringement. In fact, about the only clear cases are that copying anything completely is certainly infringement, and only copying idea elements, like general plot concepts, is absolutely not infringement. The rest is a gray area that leaves many people uncomfortable.

Nimmer, one of the most famous copyright experts, divides substantial similarity into two distinct forms: "fragmented literal similarity" and "comprehensive non-literal similarity." This is not necessarily easy to explain, but in brief, fragmented literal similarity is taking small pieces of a copyrighted work, like a verse in a song, whereas comprehensive non-literal similarity is taking the "fundamental structure or pattern" of a work as a whole, like if you re-skinned the original Super Mario Bros. and re-wrote the code to mimic the original game exactly.

3D Dot Game Heroes could be either, depending on how you want to approach the game. However, to the extent there is copying or borrowing from other source material, it's not substantial enough to be infringement. Of course, once we know the story and see how the game as a whole plays out, my opinion may change, but for now, none of the most iconic parts of the Zelda series have been copied exactly. The tests, depending on which you want to use in the infringement sense, all basically rest on your subjective take on the work's similarity. But even if you want to take the most extreme stance on the substantial similarity, it's very probable the would still survive under a fair use defense.

We've discussed fair use in the past, and here I think the two most important elements would purpose and character of 3D Dot Game Heroes and effect on the original work's value, though I still think the amount and substantiality is not nearly great enough to be considered infringement. The purpose and character of 3D Dot Game Heores is not to take the place of Zelda or other 8-bit games. It's a transformative use of elements from the 8-bit era, not a derivative like a sequel or a fan fiction. Moreover, the release of 3D Dot Game Heroes has no impact on the value of Zelda in its original form, nor would it be likely to impact sales of a future 3D dot style Zelda remake, which I know myself and millions of other Zelda fans would purchase regardless of 3D Dot Game Heroes.

Of course, the Dragon Warrior and Final Fantasy similarities are even fewer in number than the Zelda ones, so those claims would be even weaker than the Zelda ones we've discussed. In short, 3D Dot Game Heroes does an outstanding job of paying tribute to many of our 8-bit and 16-bit favorites without crossing the line to infringement. Don't take this to mean that anything that is a "tribute" is fair use; the law is far from making that distinction. But the elements here seem to not cross the line, at least to the extent we know about the game. It's certainly my hope that we get to experience this game in the US in English, and then everyone will be able to draw more complete conclusions about the nature of the game compared to those games to which it clearly pays homage.

Mark Methenitis is the Editor in Chief of the Law of the Game blog, which discusses legal issues in video games. Mr. Methenitis is also a licensed attorney in the state of Texas with The Vernon Law Group, PLLC and a member of the Texas Bar Assoc., American Bar Assoc., and the International Game Developers Assoc., where he is a board member of the Dallas chapter. Opinions expressed in this column are his own. Reach him at: lawofthegame [AAT] gmail [DAWT] com.

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