Copyright Lawyer Says It’s OK

In just a few months, millions of word puzzlers turned the online game Wordle into a hit that’s all over everyone’s social media feeds and landed the creator a seven-figure sale in The New York Times. .

It’s enough to make you wonder why no one has thought of a game like this before. But it turns out someone did.

Ever since software developer Josh Wardle’s online game began taking the internet by storm in January, word game enthusiasts have pointed out that Wordle’s gameplay and colorful box grid are actually reminiscent of an old game show called “Lingo”.

Like Wordle, the TV show also saw players try to guess five-letter words on a gridded game board where the squares take on certain colors depending on the accuracy of players’ guesses. There are differences, however, including Wordle using differently colored boxes – green and yellow instead of red and yellow – and “Lingo” giving players the first letter of each word to start with.

“Lingo” first aired for less than a year in the mid-1980s, then aired nearly 400 episodes on the Game Show Network over two periods between 2002 and 2011. Now amidst Wordle’s popularity , CBS even recently announced that it’s bringing “Lingo” back, with a rebooted version of the show that will be hosted by RuPaul (although the network reportedly said the reboot was in development before Wordle launched). .

So what does this mean for everyone’s favorite new obsession with word games?

Nothing to worry about

Media like The Daily Mail and the New York Post, as well as social network usershave discussed the similarities between Wordle and “Lingo” in recent weeks, some even wondering out loud whether the popular new game infringes on game show copyrights, or whether Wardle and the New York Times could have legal trouble ahead.

Bruce Boyden is a professor at Marquette University School of Law, specializing in copyright and internet law. He doesn’t think Wardle or the New York Times should be overly concerned about a possible copyright infringement lawsuit.

“They probably have nothing to worry about there,” Boyden says.

The main reason for this, he explains, is that games – from online games like Wordle to board games and even video games – are notoriously difficult to patent or copyright due to how they are perceived in terms of intellectual property. [IP] law.

Boyden says you should first look at “three main areas of intellectual property”: patents, copyrights and trademarks.

Patents may cover “the device used to play [a game] like…the software in this case,” Boyden says. Obviously, Wordle is not a game show, and the software code developed by Wardle to create his game could have no possible similarity to a TV show. done, he said.

Trademarks cover product names and logos. Wordle doesn’t really have a logo and the name is completely different from “Lingo”, so that’s no problem either.

Boyden asserts that copyright can only protect how a game, or any creative work, is transmitted or presented to the world. “But that doesn’t protect the idea, or the general kind of format or theme behind what you’re expressing,” he adds.

The games are “not copyrighted”

In 2011, Boyden wrote that “games exist on the fringe of intellectual property law” in ways that make them, essentially, “uncopyrighted” in a scholarly paper published in the George Mason Law Review. entitled “Games and other non-copyrighted systems.”

A game’s design can be copyrighted, like colorful Monopoly properties and iconic game tokens, like the thimble and top hat, Boyden says. But Hasbro, the publisher of Monopoly, can’t protect the larger idea of ​​a board game where players roll a dice and move across a board with “10 squares on one side, and when you land on properties, you have to pay a certain amount of money”.

As another example, Boyden points to Hasbro’s Scrabble, which has a long history with online knockoffs. One, called Scrabulous, agreed to a name change following a 2008 lawsuit by Hasbro that accused the online game of infringing Scrabble’s trademark. However, Hasbro has been unable to tackle most counterfeits, such as Zynga’s popular Words with Friends, with copyright claims, even though they have very similar playstyles. in Scrabble, says Boyden.

Even though the games’ play style mimics that of Scrabble, Boyden says, Hasbro “doesn’t have a valid copyright that they can use to protect against the idea of ​​having a word-type board game. crosswords, in which you place letters for points.”

Likewise, the existence of “Lingo” has not prevented Wardle from legally creating a similar game that involves guessing five-letter words, even though both games use a letter grid. Boyden adds that the grid design of both games is also likely too simple, and not particularly unique, to be copyrighted.

Typically, when a healthy dose of creativity goes into creating something – whether it’s writing a song or a book, or designing a building or computer software – this form of creative expression is protected by copyright law, says Boyden. But copyright law does not protect instructions. In the case of games, it means the rules or how a game is played.

Similar exclusions apply to creative works like fashion designs — you can’t protect a type of dress, but a designer can trademark their brand name, for example — and, in particular, cooking recipes, Boyden says. .

It doesn’t matter “if a lot of creativity goes into designing that particular cake,” Boyden says. “You may be able to copyright the particular way you write [a recipe] – if you add a lot of trivia or color to the recipe – but the simple instructions “one cup flour, two eggs, beat well for one minute”, that’s not copyrighted. And the rules of the game are in the same boat.”

Clone Wars

Of course, the same logic that says Wardle and The New York Times are probably at little risk of being sued over Wordle also applies to the recent proliferation of Wordle-like apps and online games that have sprung up to pull building on Wardle’s success.

Dozen of New online games and mobile apps have popped up in recent weeks that seek to appeal to word game fans who can only scratch their Wordle itch once a day. There’s Quordle, where you have to guess four different words at the same time, as well as Absurdle, a game where the mystery word actually changes during play based on your guesses.

Wardle and the New York Times probably can’t do much about these clones and forgeries, provided none of them actually use the Wordle name in their own nicknames. Potential trademark infringement is the most likely area of ​​intellectual property protection Wordle could seek against fraudulent games, Boyden says, and The New York Times has already filed a trademark application for Wordle’s name with the US Patent and Trademark Office on February 1. .

Wordle is already getting help protecting its name from Big Tech. Since Wordle itself doesn’t have a mobile app – the game is played on your web browser – several imitators have released apps called Wordle which Apple later removed from its App Store to prevent users from using it. be tricked into thinking they were downloading an official Wordle app. . One such clone maker, who tried to monetize the game with a counterfeit app, even publicly apologized after Apple took down his app.

“Trademark protection for the ‘Wordle’ name for this game is going to be probably the most valuable asset here in terms of [Josh] Wardle’s IP,” Boyden explains. This is probably the main reason why The New York Times would even buy the game directly from its creator rather than just join the ranks of copycats, he adds.

“If they just wanted the game, [The New York Times] could have created his own five-letter pun and put it together.”

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