Every few weeks, I get called by the media for an interview regarding a current news story. On this particular day, I got a call from Catherine Holahan, a reporter with BusinessWeek. Back in 2007, Jayant and Rajat Agarwalla created Scrabulous, the online Scrabble knockoff that became a smash on Facebook. Hasbro, which owns the North American rights to Scrabble, filed suit for intellectual property infringement. The brothers removed the game from Facebook after the social network received a takedown notice from Hasbro’s lawyers alleging that Scrabulous violated its copyright and, therefore, Facebook’s terms of service. The brothers then reinvented their game as Wordscraper. But a board game is not only protected under trademark laws for its game brand name, it is also protected under copyright law with respect to the expression of the game.
Would changing the name from Scrabulous to Wordscraper be enough to satisfy Hasbro? The change of the name could help them on the trademark side. The new name would have to be one that it is not confusingly similar to “Scrabble.” The question would be, under copyright law, is the expression of the new game so substantially similar that it would still constitute copyright infringement? I explained to the reporter that ideas are as free as the wind. Courts don’t enforce the protection of an idea, they will, however, enforce the way the idea is carried out or expressed. For example, the creators of Superman can’t protect the idea of a super strong person who saves people from criminals. They can, however, enforce their rights if someone creates a hero who wears a blue suit with a red cape and flies around saving people when not working at a major metropolitan newspaper. Generally, courts are looking at whether a plaintiff can prove substantial similarity and access to the copyrighted expression. Read the full article, Scrabulous Now Wordscraper, Hasbro Still Suing, by Catherine Holahan, BusinessWeek.