In order to qualify for federal copyright protection, a minimum spark of creativity or originality is required. However, just meeting this standard does not always give the greatest protection under U.S. copyright law. The courts have developed the concepts of “thin” and “thick” copyright, which game developers should be aware of.
The originality requirement:
By simply listing names in alphabetical order, there is no originality or creativity present.In Feist Publications, Inc., v. Rural Telephone Service Co., the U.S. Supreme Court held that there must be a minimal degree of creativity or originality in a work in order to be protected by copyright. The case at hand involved a “White Pages” telephone directory. The creator of the directory was claiming copyright protection as a compilation, but the Court rebuffed them. By simply listing names in alphabetical order, there is no originality or creativity present.
Had there been some selective process involved in compiling the names or some minimal creativity expressed in the order of the names, there would most likely be protection under copyright. However, as it was, no protection was granted.
“Thin” copyright protection:
Meeting this minimal threshold of originality comes with drawbacks, though. If something is just creative enough to get protection, that doesn’t mean that it has the same degree of protection against copying that a wholly-original or highly-creative screenplay would get.
There are numerous cases explaining it, but I’ll give you the quick rundown. When something is not seen as very creative (for example, an advertising photo of a vodka bottle or a screenplay that consists wholly of cliched plot elements and stock characters) by courts, this “thin” protection will only afford the copyright holder protection against literal copying. The infringing work will have to be “virtually identical” in order to constitute copyright infringement.
Do what you can to stand out from the crowd and success will be more achievable. The creative process will be much more fulfilling, as well.In order to get the full spectrum of protection for your copyrighted work, it is best to make efforts to make the work original and creative. Just meeting the bare minimum does very little for your product and your business, both from a copyright perspective and from a marketability standpoint.
Do what you can to stand out from the crowd and success will be more achievable. The creative process, in my experience, will be much more fulfilling, as well.
If you want to check out more cases on “thin” copyright protection, why not read these?
- White pages case – Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991)
- Jellyfish glass sculpture case – Satava v. Lowry, 323 F.3d 805 (9th Cir. 2003)
- Vodka bottle photograph case – Ets-Hokin v. Skyy Spirits Inc., 225 F.3d 1068 (9th Cir. 2000)
For an overview of other legal issues faced by game developers, I have a free eBook available by signing up for my mailing list below or at the top of the page. Also, if you enjoy reading the blog, why not share with others in the game development industry on social media? Just click those social sharing buttons above!