Plaintiff sued defendant claiming that certain visual elements of defendant’s digital video slot machine game infringed the copyright in elements of plaintiff’s game. Defendant moved for summary judgment on the copyright infringement claims. The court granted the motion.
It held that no reasonable factfinder could find the images in defendant’s games to be substantially similar to the protectible expression in plaintiff’s copyrighted material.
It found that the games were similar only at the conceptual level. Both games had 3 rows and 5 columns of spinning squares, and both included among the spinning squares images that corresponded to high-value playing cards (A, K, Q, J, and 10). But those were common elements in slot machine games. The court found they would likely qualify as scènes à faire and, one way or the other, were not protectible elements.
And both games used images of cats. That, however, according to the court, was where the similarities ended. In the court’s view, the cats in defendant’s game looked nothing like those in plaintiff’s images. Plaintiff’s cats were shown as full bodies, in active or playful poses. Some were partly outside the square frame. They moved when they were part of a winning combination. Perhaps most importantly, the court found, they were somewhat cartoon-like, and they had outsized eyes.
Defendant’s cats, by contrast, were shown in headshots only on the main game screens (with the exception of some bonus images), and they were fully contained within the square frame. The cats were dour and serious and were not engaged in any apparent activity, and they were more realistic images of cats. And there were other equally significant differences between the two sets of images.
GC2 Inc. v. International Game Technology, 2018 WL 5921315 (N.D.Ill. November 12, 2018)