Playing Through

Robert Carson Godbey

The court agreed that the games were so similar that, at first blush, one might easily conclude that VT's video golf game had infringed IT's earlier game. But the court went on to observe that, because copyright only protects the expression of an idea, not the idea itself, that copyright did not protect the idea of video golf, and so did not protect IT's game itself. Furthermore, the court concluded that the trackball system and instructions used to play the game could not be protected, because they were functional. Functional features may be protected by patent, but not by copyright.

The video imagery of the games was left. Courts have long held that certain incidents, characters and setting are indispensable, or at least traditional, in the treatment of a given topic, particularly in fiction or drama, and for that reason are not entitled to copyright protection. The court applied that doctrine here, noting that, in presenting a realistic golf game, you must show certain scenes. "Sand traps and water hazards are a fact of life for golfers, real and virtual," the court noted. Given that such things are necessary to make the game realistic, the court held it was unlikely that IT could succeed on its claim of infringement of its video imagery.

In short, the court held copyright does not protect the idea of a video golf game, or the functional controls or video imagery required to create such a game. It protects only the creative expression in the game, which was not infringed here.