Tetris Holding, LLC v. Xio Interactive, Inc.

OPINION

Presently before the Court are cross-motions for summary judgment. Plaintiffs Tetris Holding, LLC and the Tetris Company, LLC (collectively “Tetris Holding” or “Plaintiffs”) claim that Defendant Xio Interactive, Inc. (“Xio” or “Defendant”) has infringed the copyright and trade-dress of Plaintiffs’ video game Tetris. Xio does not raise any issue of fact in response, but makes a purely legal argument that because it meticulously copied only non-protected elements, in particular the rules and functionality of the game, and not its expressive elements, that judgment should be entered in its favor. The motions stem from Tetris Holding’s First Amended Complaint that alleges (1) Xio infringed Tetris Holding’s copyright under 17 U.S.C. §§ 101 et seq. (Count One); (2) Xio’s actions constituted unfair competition, false endorsement, and false designation of origin under 15 U.S.C. § 1125(a)(1)(A), including infringing Tetris Holding’s trade dress (Count Two); (3) Trade Dress Infringement and Unfair Competition under the New Jersey Fair Trade Act (Count Three); (4) Xio’s actions constituted common law unfair competition (Count Four); and (5) Xio was unjustly enriched by its actions at Tetris Holding’s expense (Count Five).1 Although the parties frame their motions as seeking summary judgment as to all claims, only Counts One and Two, the federal causes of action, are addressed in full by their briefs. It may very well be that the remaining counts flow from the issues disposed of today, but the Court will not sua sponte grant summary judgment on these causes of action without the parties addressing the remaining counts. Therefore, I will treat the motions as seeking summary judgment only as to Counts One and Two.

For the reasons that follow, Plaintiffs’ motion is granted and Defendant’s motion is denied.

I. BACKGROUND

The Court only recounts the facts necessary to resolve the parties’ motions. The following facts are undisputed by the parties. The game of Tetris gained fame in the United States during the late 1980s and early 1990s as an electronic video game initially played on Nintendo’s portable platform, the Gameboy, and on its console systems. Since that time, Tetris Holding has developed many versions for modern platforms.

Tetris is a facially simple puzzle game in which the player is tasked with creating complete horizontal lines along the bottom of the playing field by fitting several types of geometric block pieces (called tetrominos) together. The game becomes more complex and more difficult as you progress and are left with fewer options to arrange the pieces and less area of the playing field is available. Originally developed in Russia during the mid-1980s by Russian computer programmer Alexy Pajitnov, Tetris was exported to the United States and has since been adapted for the myriad electronic video game platforms available to consumers, including Apple Ine.’s iPhone. Pajitnov formed Tetris Holding, LLC, along with game designer, Henk Rogers. Tetris Holding, LLC owns the copyrights to the visual expression of the numerous *397Tetris iterations and licenses those rights to Tetris Company, LLC, which then sublicenses its rights. Companies have licensed Tetris Holding’s intellectual property rights for a number of reasons. For example, Tetris Holding licensed the visual look of Tetris: (1) to Hallmark so it could design a Teins-themed greeting card, (2) to states, such as New Jersey and Idaho, to create Yeins-themed lottery cards; and (3) to various television shows to use and reference Tetris in episodes. In the years since its development, Tetris has won numerous awards and accolades, and has been ranked high on several lists as one of the greatest video games of all time. It has sold over 200 million units worldwide. And Tetris continues to enjoy success through smart phones and social networking, with billions of games of Tetris being downloaded and played online.

Tetris Holding’s success has also bred many unauthorized attempts at imitation. In response, Tetris has vigorously made a concerted effort to protect,its intellectual property by pursuing such infringers through the legal process and removing hundreds of imitation games from the market. Tetris Holding alleges that Xio is one such company that has infringed its intellectual property, namely its copyrights and its trade dress, trading off the creative aspects of its work without authority.

Xio was formed by Desiree Golden, a recent college graduate, who decided to create a multiplayer puzzle game for the iPhone called “Mino ” and admittedly used Tetris as inspiration.2 Indeed, Xio was more than inspired by Tetris as Xio readily admits that its game was copied from Tetris and was intended to be its version of Tetris. Plaintiffs point to Ms. Golden’s statements that she was “trying to get a company started to make a MúltiPlayer game similar to Tetris for the iPhone;” that some iPhone games “made by private developers have made 250K each in 2 months!;” and that Xio’s game would “absolutely succeed” because “The concept is popular — everyone knows about it.” PI. Stmt. Of Undisputed Fact, ¶ 105. Plaintiffs also point to admissions by Xio’s principals that Xio downloaded Tetris’s iPhone application for the purpose of developing its own version and used it in the development of Mino. Id. ¶ 121-125. Xio does not dispute any of these facts. Yet, Xio says, it copied Tetris in such a way so as to not copy any protected elements after diligently researching intellectual property law, and that it also tried to obtain a license from Tetris Holding, but was refused.

Xio released Mino version 1.0 in May 2009, Mino version 1.1 in July 2009, and Mino Lite shortly thereafter.3 Tetris Holding became aware of Mino and Mino Lite and in August 2009, sent take-down notices pursuant to the Digital Millennium Copyright Act to Apple, Inc., which removed Mino and Mino Lite from its online apps marketplace. Xio’s counsel sent two counter-notifications soon after and Apple, Inc. informed Tetris Holding that the games would be reinstated unless Tetris Holding filed a lawsuit. This litigation was then commenced in December 2009.

Tetris Holding argues that Mino infringed the following copyrightable elements:

1. Seven Tetrimino playing pieces made up of four equally-sized square joined at their sides;

2. The visual delineation of individual blocks that comprise each Tetrimino piece and the display of their borders;

3. The bright, distinct colors used for each of the Tetrimino pieces;

*3984. A tall, rectangular playfield (or matrix), 10 blocks wide and 20 blocks tall;

5. The appearance of Tetriminos moving from the top of the playfield to its bottom;

6. The way the Tetrimino pieces appear to move and rotate in the play-field;

7. The small display near the playfield that shows the next playing piece to appear in the playfield;

8. The particular starting orientation of the Tetriminos, both at the top of the screen and as shown in the “next piece” display;

9. The display of a “shadow” piece beneath the Tetriminos as they fall;

10. The color change when the Tetriminos enter lock-down mode;

11. When a horizontal line fills across the playfield with blocks, the line disappears, and the remaining pieces appear to consolidate downward;

12. The appearance of individual blocks automatically filling in the playfield from the bottom to the top when the game is over;

13. The display of “garbage lines” with at least one missing block in random order; and

14. The screen layout in multiplayer versions with the player’s matrix appearing most prominently on the screen and the opponents’ matrixes appearing smaller than the player’s matrix and to the side of the player’s matrix.

PI. Motion, at 17.

II. LEGAL STANDARD

“Summary judgment is proper if there is no genuine issue of material fact and if, viewing the facts in the light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law.” Pearson v. Component Tech. Corp., 247 F.3d 471, 482 n. 1 (3d Cir.2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)); accord Fed.R.Civ.P. 56(c). For an issue to be genuine, there must be “a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party.” Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir.2006); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In determining whether a genuine issue of material fact exists, the court must view the facts and all reasonable inferences drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir.2002). For a fact to be material, it must have the ability to “affect the outcome of the suit under governing law.” Kaucher, 455 F.3d at 423. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment.

Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548. Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id.; Monroe v. Beard, 536 F.3d 198, 206-07 (3d Cir.2008). Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Anderson, 477 U.S. at 256-57, 106 S.Ct. 2505. The nonmoving party “must do more than simply show that there is some metaphysical doubt as to material facts.” Id. at 206, 106 S.Ct. 2505 *3990quoting Matsushita, 475 U.S. at 586, 106 S.Ct. 1348).

III. DISCUSSION

1. Copyright Infringement

“To establish a claim of copyright infringement, a plaintiff must establish: (1) ownership of a valid copyright; and (2) unauthorized copying of original elements of the plaintiffs work.” Dun & Bradstreet Software Services, Inc. v. Grace Consulting, 307 F.3d 197, 206 (3d Cir.2002); see Feist Pub’lns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991); Mortg. Mkt. Guide, LLC v. Freedman Report, LLC, No. 06-140, 2008 WL 2991570, *31, 2008 U.S. Dist. LEXIS 56871, *93 (D.N.J. July 28, 2008).

The parties agree that there are no genuine issues of fact in connection with their motions on either the copyright or federal trade dress claim. The question before the Court then is not whether summary judgment is appropriate, but rather, which party is entitled to summary judgment. There are no issues of material facts, in part, because Xio concedes much. Xio acknowledges that Tetris Holding owns the registered copyrights to the various iterations of Tetris and further admits that Xio copied Tetris, purposefully and deliberately, in designing Mino. Xio does not dispute that it downloaded Tetris Holding’s iPhone application and used it to develop its own iPhone Tetris-like application for profit. What Xio does not concede is that it copied any protected elements. Instead, it argues the elements it copied were not original expression, because they were part of the game itself — the rules, function, and expression essential to the game play— which is not protected. Before releasing its product, Xio researched copyright law, both through its own independent studying and based on advice of counsel,4 before designing its game. Based on this research, Xio believed it could freely copy any part of Tetris that was based on a “rule of the game” or that Xio viewed as being functional to the game. There is no question that Xio thought of its game as essentially a version of Tetris. Xio’s principals referred to their game as “Tetris” multiple times during its development and admitted that their intention was to market and profit from making a Tetris-type product for the iPhone, using as much of the look and feel of Tetris that it thought it could copy based on its view of copyright law. According to Defendant:

There is no question that Mino and Tetris look alike. But the only similarities between the games are elements not protected by copyright. This is no coincidence. Before developing its games, Xio analyzed the intellectual property laws to determine what parts of Tetris they could use and what parts they couldn’t. Xio discovered that no one had a patent to the rules and other functional elements of Tetris. Xio carefully, intentionally, and purposefully crafted its game to exclude all protected, expressive elements.

Def. Motion, at 2. Implied, but not stated, in this admission is that Xio’s careful, intentional, and purposeful attempt to exclude all protected elements was based on its opinion of what it believed was protected; the validity of that opinion, or lack thereof, underlies this litigation.

*400i. Idear-Expression Dichotomy

To resolve the claim of copyright infringement, I must first determine which elements of Plaintiffs’ Tetris game are protected and which are not. I begin with the relevant language from 17 U.S.C. § 102. Subsection (a) outlines what a copyright protects, and reads in part:

Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.

17 U.S.C. § 102(a). Courts in this Circuit and others have long held that elements of computer programs may be protected by copyright law. This includes both the code for the program as well as the graphical elements for programs such as video games. Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1249 (3d Cir.1983) (“Thus a computer program, whether in object code or source code, is a ‘literary work’ and is protected from unauthorized copying, whether from its object or source code version.”); Midway Mfg. Co. v. Bandai-America, Inc., 546 F.Supp. 125, 139 (D.N.J.1982) (“It is also unquestionable that video games in general are entitled to copyright protections as audiovisual works.”); Hart v. Elec. Arts, Inc., 808 F.Supp.2d 757, 778 (D.N.J.2011) (discussing copyrightability of video games in the context of First Amendment issues); see also Midway Mfg. Co. v. Artie Intern. Inc., 704 F.2d 1009, 1012 (7th Cir.1983) (“We thus conclude that video games are copyrightable as audiovisual works under the 1976 Copyright Act and we note that every other federal court (including our own) that has confronted this issue has reached the same conclusion.”). Conversely, subsection (b) outlines what copyright law will not protect:

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

17 U.S.C. § 102(b).

Together § 102(a) and § 102(b) codify what courts have come to call the “idea-expression dichotomy.” Whelan Assocs., Inc. v. Jaslow Dental Laboratory, Inc., 797 F.2d 1222, 1234 (3d Cir.1986); H.R.Rep. No. 1476, 94th Cong., 2d Sess. 57 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5670 (“Section 102(b) in no way enlarges or contracts the scope of copyright protection under the present law. Its purpose is to restate, in the context of the new single Federal system of copyright, that the basic dichotomy between expression and idea remains unchanged.”); see also Mazer v. Stein, 347 U.S. 201, 217, 74 S.Ct. 460, 98 L.Ed. 630 (1954) (“Unlike a patent, a copyright gives no exclusive right to the art disclosed; protection is given only to the expression of the idea — not the idea itself’).

The doctrine is simple to state— copyright will not protect an idea, only its expression- — but difficult to apply, especially in the context of computer programs. As Judge Stahl of the First Circuit aptly wrote: “Applying copyright law to computer programs is like assembling a jigsaw puzzle whose pieces do not quite fit.” Lotus Dev. Corp. v. Borland Int’l, 49 F.3d 807, 820 (1st Cir.1995); see also Melville Nimmer, et al., Nimmer on Copyright § 2.18[H] (“Accordingly, analyzing the substantial similarity of computer programs is especially challenging”) (hereinafter “Nimmer”).5 Different circuits have *401developed different tests for how to separate unprotectible ideas from protectible expression pertaining to computer software.

The Third Circuit was perhaps the first to weigh in on this issue in Whelan, although this decision has been criticized outside this Circuit.6 Computer Assocs. Int’l v. Altai 982 F.2d 693, 705 (2d Cir. 1992) (“We think that Whelan’s approach to separating idea from expression in computer programs relies too heavily on metaphysical distinctions and does not place enough emphasis on practical considerations.”) (collecting cases and academic articles criticizing Whelan); Plains Cotton Coop. Ass’n v. Goodpasture Computer Serv., Inc., 807 F.2d 1256, 1262 (5th Cir. 1987) (criticizing and declining to adopt Whelan); Sega Enters, v. Accolade, Inc., 977 F.2d 1510, 1525 (9th Cir.1992) (“The Whelan rule, however, has been widely— and soundly — criticized as simplistic and overbroad.”); Gates Rubber Co. v. Bando Chem. Indus., 9 F.3d 823, 840, n. 17 (10th Cir.1993). Yet even in the face of such criticism, the Third Circuit, sitting en banc, has declined to abandon its holding. In Southco, Inc. v. Kanebridge Corp., 390 F.3d 276 (3d Cir.2004), the Circuit briefly discussed the holding in Whelan, but left it untouched, denying there was any tension between the holding there and in Whelan. Id. at 285 n. 4

Shortly thereafter, the Second Circuit developed the abstraction-filtration-comparison that purported to depart from Whelan. Altai 982 F.2d at 706 (“[W]e think that district courts would be well-advised to undertake a three-step procedure, based on the abstractions test utilized by the district court, in order to determine whether the non-literal elements of two or more computer programs are substantially similar.”). Unlike Whelan, this test has been widely accepted by other courts. See Atari Games Corp. v. Nintendo of Am. Inc., 975 F.2d 832, 839 (Fed.Cir.1992) (employing Altai’s abstraction-filtration-comparison method); Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510, 1525 (9th Cir.1992) (“the Second Circuit’s approach is an appropriate one”); Gates Rubber Co. v. Bando Chem. Indus., Ltd., 9 F.3d 823, 834 (10th Cir.1993); Engineering Dynamics, Inc. v. Structural Software, Inc., 26 F.3d 1335, 1342, 1343 (5th Cir.1994); Bateman v. Mnemonics, Inc., 79 F.3d 1532, 1543 n. 24, 1544 (11th Cir.1996); Comprehensive Technologies Int’l, Inc. v. Software Artisans, Inc., 3 F.3d 730, 734-735 (4th Cir.1993) (also citing Third Circuit opinion in Whelan, discussed below).

I do not find, however, that these approaches require widely differing analyses, at least based on the facts before me today; both rest on similar premises and applications. In Whelan, the court held “the purpose or function of a utilitarian work would be the work’s idea, and everything that is not necessary to that purpose or function would be part of the expression of the idea. Where there are various means of achieving the desired purpose, then the particular means chosen is not necessary to the purpose; hence, there is expression, not idea.” Id. at 1236 (emphasis in original). The computer program at *402issue was aimed at helping business operations for dental laboratories. Id. at 1238. The court addressed other doctrines, such as scenes á faire and fact intensive works, in conjunction with its analysis and then applied these concepts to address whether there was substantial similarity between the original and allegedly copied programs. Id.

In Altai, the Second Circuit suggested district courts undertake much the same analysis, albeit in three distinct steps. First, a court should “abstract” the program at issue, then filter out the unprotected material, and finally compare whatever remains (the protected expression) to the copied work. The last two steps are mostly identical to what the Third Circuit did in Whelan. It is the first step of the analysis, the abstraction, where differences purportedly lie. To abstract a computer program, the Second Circuit suggested that: “a court would first break down the allegedly infringed program into its constituent structural parts.” Altai, 982 F.2d at 706. This is an overly complicated way of saying a court should first try to understand the principles or ideas driving the program and the essential processes and functions by which it achieves those purposes. See id. (“Upon any work a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the work is about, and at times might consist only of its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the author could prevent the use of his ‘ideas,’ to which, apart from their expression, his property is never extended.”) (internal quotation and alterations omitted). This is similar, at least in principle, to what the Third Circuit expressed: “[t]he line between idea and expression may be drawn with reference to the end sought to be achieved by the work in question.” Whelan, 797 F.2d at 1236. In any event, what needs to be “abstracted” or considered and how one achieves this will depend greatly on the type of program at issue and what precisely is being accused of copyright infringement. For example, analyzing whether source code was misappropriated would likely entail a different inquiry — or different abstraction — than analyzing whether the graphical interface or display of a program was copied. The Whelan Court was careful to note that its analysis would vary depending on the underlying facts. Id. at 1238, n. 34. (“We do not mean to imply that the idea or purpose behind every utilitarian or functional work will be precisely what it accomplishes, and that structure and organization will therefore always be part of the expression of such works.”).

Indeed, criticism of Whelan seems aimed more at its application than the general principles underlying the holding inasmuch as the court found only one unprotectible idea at issue. Nimmer, § 13.03[F][1] (“The crucial flaw in this reasoning it that it assumes that only one ‘idea,’ in copyright law terms, underlies any computer program, and that once a separable idea can be identified, everything else must be expression.”); Gates Rubber Co., 9 F.3d at 840, n. 17 (“The criticisms of the Whelan analysis primarily concern the high level of abstraction at which the court chose to separate idea from expression. The criticisms of the Whelan decision are valid when the opinion is read to imply that a computer program can have only one idea.”). But the Whelan Court never explicitly said or suggested a program can have only one idea behind it. Perhaps in 1983 when the case was decided such a result was more conceivable, but three decades and exponential increases in the power, range, and scope of computer programs make it less likely today.

*403At the end of the day, no matter how one expresses the test, the task is clear: because copyright only protects original expression, I must delineate between the copyrightable expression in Tetris and the unprotected elements of the program, then evaluate whether there is substantial similarity between such expression and Defendant’s Mino game. The starting point in this analysis must be to understand the ideas and concepts of Tetris itself,

ii. Doctrines of Merger and Scenes a Faire

In determining what elements are not protected, two related doctrines must be considered: merger and scenes á faire. Merger exists when an idea and its particular expression become inseparable. Kay Berry, Inc. v. Taylor Gifts, Inc., 421 F.3d 199, 209 (3d Cir.2005) (“In some instances, there may come a point when an author’s expression becomes indistinguishable from the idea he seeks to convey, such that the two merge.”). If the law were to protect expression in such instances, then the copyright holder would have an unacceptable monopoly over that idea. In striking the balance between the two unenviable positions of either allowing an infringer to unlawfully copy another’s expression or preventing the use of ideas rightly in the public domain, it is better to allow such copying rather than suffer the loss of future works that would have been developed based on those ideas. See Educ. Testing Services v. Katzman, 793 F.2d 533, 539 (3d Cir.1986) (“When the idea and the expression of the idea coincide, then the expression will not be protected in order to prevent creation of a monopoly on the underlying art.”) (citation omitted). Merger is appropriate when “there are no or few other ways of expressing a particular idea.” Id. (quotation omitted). But “if the same idea can be expressed in a plurality of totally different manners, a plurality of copyrights may result” and merger will not prevent protection of one’s expression. Id. (quotation omitted) (“If other methods of expressing that idea are not foreclosed as a practical matter, then there is no merger.”). Indeed, the Third Circuit has explained that merger “is rare.” Kay Berry, 421 F.3d at 209.

The second, related doctrine, known as “scenes á faire” (literally meaning a scene that must be done), applies to expression that is so associated with a particular genre, motif, or idea that one is compelled to use such expression. Jackson v. Booker, 465 Fed.Appx. 163, 168 (3d Cir.2012) (describing scenes á faire as the “incidents, characters or settings which are as a practical matter standard in the treatment of’ a particular subject); Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 979 (2d Cir.1980) (“Because it is virtually impossible to write about a particular historical era or fictional theme without employing certain ‘stock’ or standard literary devices, we have held that scenes á faire are not copyrightable as a matter of law.”). For much the same reason as merger, such scenes are unprotectible by copyright law. Whelan, 797 F.2d at 1236 (“It is well-settled doctrine that scénes á faire are afforded no copyright protection.”); Mortg. Mkt. Guide, 2008 WL 2991570, at *35, 2008 U.S. Dist. LEXIS 56871, at *104-105 (“[W]hen similar features in a videogame are as a practical matter indispensable, or at least standard, in the treatment of a given idea, they are treated like ideas and are therefore not protected by copyright.”) (quotation omitted).

in. Copyright Law As Applied to Games

With these principles and doctrines in mind, I now turn to the law as it has developed with regard to games and videogames in order to parse out the unprotected elements of Tetris from Plaintiffs’ *404protectible expression. Neither party disputes that a game is deserving of some copyright protection. The game mechanics and the rules are not entitled to protection, but courts have found expressive elements copyrightable, including game labels, design of game boards, playing cards and graphical works. Affiliated, Hosp. Prods., Inc. v. Merdel Game Mfg. Co., 513 F.2d 1183, 1188-89 (2d Cir.1975) (“The rules of the game are perforce in the public domain as well as the game itself. Affiliated’s copyright only protects Affiliated’s arrangement of the rules and the manner of their presentation, and not their content”); Anti-Monopoly, Inc. v. General Mills Fun Group, Inc., 611 F.2d 296, 300, n. 1 (9th Cir.1979) (“The copyright laws are not involved in this case because business ideas, such as a game concept, cannot be copyrighted____”); Hoopla Sports & Entertainment v. Nike, Inc., 947 F.Supp. 347, 354 (N.D.Ill.1996) (“Courts have also held that ‘games’ themselves (as opposed to the cards, boards, instruction books, etc. with which games may be played) are not copyrightable.”); Nimmer, § 2.18[H]. In particular, courts have found the audiovisual display of a video game to be expression. Atari Games Corp. v. Oman, 979 F.2d 242, 245 (D.C.Cir.1992) (“The hallmark of a video game is the expression found in ‘the entire effect of the game as it appears and sounds,’ its ‘sequence of images.’ ”) (per then-judge Ginsburg); Atari, Inc. v. North American Philips Consumer Electronics Corp., 672 F.2d 607, 617 (7th Cir. 1982) (finding copyright protection extends “to at least a limited extent the particular form in which [a game] is expressed (shapes, sizes, colors, sequences, arrangements, and sounds)” and holding that defendant’s use of similar video game characters infringed plaintiffs copyright); Midway, 546 F.Supp. at 139 (finding graphical characters of video game were protectible expression). This distinction then between a game’s rules and its appearance is merely the application of the familiar idea-expression dichotomy as applied to the particular field of games.7 See, e.g., Durham Industries, Inc. v. Tomy Corp., 630 F.2d 905, 913 (2d Cir. 1980) (discussing copyright as applied to games and stating that “|j]ust as copyright protection extends to expression but not ideas, copyright protection extends only to the artistic aspects, but not the mechanical or utilitarian features, of a protected work.”).

Rather than following this analysis, Defendant’s primary argument takes a somewhat different path. Xio repeatedly emphasizes that Tetris Holding cannot protect by copyright what is only protectible by patent and therefore not only are the ideas of Tetris (or the rules of the game) not protectible, but neither are the “functional aspects” of the game or expressive elements related to the game’s function or play. Def. Motion, at 6. As part of this argument, Xio conflates the doctrines of merger and scenes á faire to say that Tetris Holding cannot protect expression inseparable from either game rules or game function.

Xio’s brief devotes many pages to explain how patents protect particular aspects of intellectual property while copyright protects other, distinct aspects, but I find that Defendant extracts much from this distinction — too much. Xio is correct that one cannot protect some functional aspect of a work by copyright as one would with a patent. But this principle does not mean, and cannot mean, that any and all *405expression related to a game rule or game function is unprotectible. Such an exception to copyright would likely swallow any protection one could possibly have; almost all expressive elements of a game are related in some way to the rules and functions of game play. Tetris Holding is as entitled to copyright protection for the way in which it chooses to express game rules or game play as one would be to the way in which one chooses to express an idea.

The cases Xio cites in support of its argument do not stand for expanding the law so that any expression related to functionality is a fortiori outside the ambit of copyright law. Rather, expression is not protected only when it is integral or inseparable from the idea or the function under the doctrines of merger or scenes á faire. Defendant relies on the seminal case, Baker v. Selden, as the starting point for its analysis. There the Supreme Court held that plaintiff could not copyright certain forms used in his new system of bookkeeping ostensibly as a means to protect the idea underlying that system. Baker v. Selden, 101 U.S. 99, 103, 25 L.Ed. 841 (1879). The defendant in Baker developed similar charts, although arranged differently, and plaintiff sued him for copyright infringement arguing defendant’s work embodied the system that plaintiff originally described. But the plaintiff did not have rights to his new bookkeeping idea, nor to those elements that were a necessary accompaniment to the idea. Id. The Court explained its holding this way:

The copyright of a work on mathematical science cannot give to the author an exclusive right to the methods of operation which he propounds, or to the diagrams which he employs to explain them, so as to prevent an engineer from using them whenever occasion requires. The very object of publishing a book on science or the useful arts is to communicate to the world the useful knowledge which it contains. But this object would be frustrated if the knowledge could not be used without incurring the guilt of piracy of the book. And where the art it teaches cannot be used without employing the methods and diagrams used to illustrate the book, or such as are similar to them, such methods and diagrams are to be considered as necessary incidents to the art, and given therewith to the public; not given for the purpose of publication in other works explanatory of the art, but for the purpose of practical application.

Id. (emphasis added). That the charts (i.e. the expression of the idea) were “necessary incidents” is key in applying this case here; the art was unusable without that expression. The Court, holding plaintiffs expression unprotectible, in essenc