“Scrabulous” a game similar to the board game Scrabble was launched online, and made available to Facebook users as an add-on game, by its creators the Agarwalla’s in 2006. By all accounts Scrabulous was almost identical to Scrabble in appearance (same colour of board), rules and name. In 2008, Hasbro, who own the intellectual property rights to Scrabble in North America, filed a lawsuit against the Agarwalla’s alleging copyright infringement. Scrabulous was subsequently taken off Facebook following a legal request by Hasbro. However the popular game resurfaced a few days later with a new design and rules, and renamed as “Wordscraper”. [1]
Based on s. 106 (owners rights) [2] and s. 501 (infringement) [3] of the US Copyright Act 2007, there is no doubt that Hasbro would have been successful in its lawsuit against the owners of Scrabulous, because of its obvious similarity to Scrabble. However what is not clear is whether a potential lawsuit against Wordscraper will be successful, because the new game differs from the original in a number of ways.
The popular notion amongst legal commentators on this issue seems to be that “copyright protects the expression of an idea and not the idea itself”. In the Canadian case of Moreau v. St. Vincent the court stated that a “copyright is confined to the literary work in which” it has been expressed, and does not give an author “a monopoly in the use of ideas”. [4] The creators of Wordscraper could argue that although the new game is a board game similar to Scrabble, its distinction in colour, rules, and customizing options contain enough differences to escape claims of copyright infringement. However case law both in Canada [5] and the United States has indicated that a copy of a material need not be a simple copy of the original to constitute infringement, and that, although one can get inspiration from a previous work, the result has to be the product of personal efforts in order not to be considered plagiarism. In Buc International Corp v International Yacht Council Limited 2007, [6] the United States Court of Appeals found that copyright infringement can be found where there are “substantial similarities” between the copy and the original works and does not have to be ” a virtual identical” product in order to constitute infringement.
The question then seems to hinge on whether Wordscraper contains a substantial part of Scrabble. I believe it does. The doctrine of substantial part explains that where “a vital and essential part” of a work is reproduced, so much so that the original can be recognized in the copy, then this amounts to infringement of copyright. [7] In this case there can be no doubt despite the new design and differences in rules that Wordscraper is a copy of Scrabble, because the original can be recognized in the copy. In addition the fact that the customizing option allows the users to replicate the original Scrabble in design further contradicts the idea that this game is not a copy of scrabble.
[1] “Scrabulous Returns to Facebook as Wordscraper” Caroline McCarthy ( July 31, 2008) http://www.cnet.co.uk/misc/print
[2] Copyright Law of the United States (2007) http://www.copyright.gov/title17/ s. 106
[3] Copyright Law of the United States (2007) http://www.copyright.gov/title17/ s. 501
[4] Moreau v. St. Vincent. [1950] Ex. R. 198 ( Can. Ex. Ct.) , at p.230
[5] Boutin v. Bilodeau (1994), 54 C.P.R. (3d) 160 (S.C.C.)
[6] Buc International Corp v International Yacht Council Limited (2007) United States Court of Appeal 02-60772-CV-WPD
[7] Hawkes and Son (London), Limited v Paramount Film Service Limited [1933 .H.3112] Ch 533