Word is today that the Scrabulous guys are considering whether to pulling the plug on their Facebook app. This bodes well for my work productivity, but you have to wonder the brothers are motivated by (a) concern that they misappropriated the creative efforts of others or (b) fear drummed up by the scores of news stories branding them copyright infringers.

Some context. After I posted a quick link a few days ago on the "enforce it or lose it" aspect of Scrabble vs. Scrabulous, my good friend David Alpert kindly pointed out that I was confusing copyright with trademark. My bad. Trademark carries the burden of having to be defended to retain its strength. Copyright is a different beast. It can be strictly enforced by its possessor or it can be asserted more loosely. That's the idea behind Creative Commons, of course. It's the reason why licenses like "Share Alike" and "No Derivatives" work -- it's a copyright holder's prerogative to say what can be done with the work (within the bounds of the law, of course).

David also pointed me to a helpful post on the blog of the advocacy group Public Knowledge. In it, John Bergmayer argues that as far as trademark goes, Mattel/Hasbro has some solid ground to stand on. There's no denying that the name "Scrabulous" is an obvious play on "Scrabble." But John also says that, as far as we know from public statements, Mattel/Hasbro has limited its complaints against Scrabulous to that question of trademark. On the copyright front, while the creative elements of Scrabble could fall under its umbrella, the ideas that guide the game aren't copyrightable -- so says the law, in fact:

The idea for a game is not protected by copyright. The same is true of the name or title given to the game and of the method or methods for playing it.

Copyright protects only the particular manner of an author's expression in literary, artistic, or musical form. Copyright protection does not extend to any idea, system, method, device, or trademark material involved in the development, merchandising, or playing of a game. Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles.

Some material prepared in connection with a game may be subject to copyright if it contains a sufficient amount of literary or pictorial expression. For example, the text matter describing the rules of the game, or the pictorial matter appearing on the gameboard or container, may be registrable.

I wouldn't think that the visual elements of Scrabulous -- the colored double-points squares, for example -- would be considered creative enough to fall under that "pictoral expression" provision. It seems to me like what the law refers to there was probably intended to be things like the artwork of the "Rich Uncle Pennybags" character depicted on the Monopoly box. But the uncertainty on this point hasn't stopped any number of news stories from framing these guys as copyright infringers.

What if the Scrabulous brothers had called their app "Fun Word Tile Game" and hadn't linked to the Wikipedia entry on Scrabble as their help page? (Not the brightest of moves, no doubt.) Lawyers are gonna do what lawyers are gonna do. But would Mattle/Hasbro have much of a claim then? (Photo by terriem.)