With the creation of video games for smart phones, video games are some of the most accessible forms of entertainment on the market. What was once only an attraction inside the designated location of arcade halls, is now within the grip of nearly every smart phone user. With new game apps for smart phones going viral on a regular basis, the video game industry has become one of the most profitable in the entertainment realm. However, the industry's overall success has also led to increased competition amongst game developers. As a result, competing developers create near exact copies of highly successful video games called clones. By copying non-copyrightable elements, clone developers can create confusingly similar video games. This comment examines the creation of clone video games and how their developers avoid copyright infringement by exploiting scènes à faire and the merger doctrine. The exploitation of copyright law for video game developers could be combated by trademark law. By using the Lanham Act's protection for trade dress, non-copyrightable elements that identify popular games may be protected. By seeking trade dress protection against clones, game developers can sustain the value of their investment in gaming apps, while also minimizing the issue of consumer confusion.
Benjamin C.R. Lockyer, Trying on Trade Dress: Using Trade Dress to Protect the Look and Feel of Video Games, 17 J. Marshall Rev. Intell. Prop. L. 109 (2017)