“The creative act is not performed by the artist alone the spectator brings the work in contact with the external world by deciphering and interpreting its inner qualifications and thus adds his contribution to the creative act. This becomes even more obvious when posterity gives a final verdict and sometimes rehabilitates forgotten artists.”
-Marcel Duchamp, from Session on the Creative Act, Convention of the
American Federation of Arts, Houston, Texas, April 1957.
In January this year, newspapers and slowly, much of the blogosphere was abuzz with rumours of an imminent suit by Mattel/Hasbro – current owners of the trademark in the popular word-game ‘Scrabble’ - against Scrabulous, a wildly popular website that offers the game to enthusiasts online for free. Mattel alleged that the creators of Scrabulous – Rajat and Jayant Agarwalla, two Indian hobbyist programmers based in Kolkata – were guilty of infringing their trademark and copyrights in the game. (Simultaneously, although this event is lesser known, Mattel also reportedly sent a Cease and Desist notice to the creator of Bogglific – an online version of another popular word game ‘Boggle’. Bogglific has since changed its name to Prolific and continues operating as before)
Not that long ago, Yochai Benkler in his ‘Wealth of Networks’ cautioned that “the rise of .. individual and co-operative non-market production of information and culture” would threaten the “incumbents of the industrial information economy” and that the outcome of the battles between them would determine the extent and forms in which “we will be able-as autonomous individuals, as citizens, and as participants in cultures and communities - to affect how we and others see the world as it is and as it might be” . The battle over Scrabulous couldn’t possibly get any more individual-versus-incumbent-ey.
Steve Glista & etc. from the University of Oregon School of Law have an excellently researched piece on the plausibility of Hasbro’s claims under US Law. They conclude that although the makers of Scrabulous could escape liability on grounds of Copyright infringement (on account of Scrabulous being a sufficiently ‘transformative work’), their ignorance about US Trademark law may have exposed them to liability for Trademark infringement.
Unlike US Law, Indian law is as yet undeveloped on the issue of copyrightability of games. The copyright of the author/owner under Indian law includes the exclusive right to adaptations (‘any use of work involving its re-arrangement or alteration), and so the defence of a ‘transformative act’ as suggested above appears unavailable to the creators of Scrabulous in India. ‘Fair dealing’ exemptions are not of much use in this case either since they permit infringement for ‘private use’ rather than for ‘non-commercial’ use.
Under Trademark Law although Scrabulous are likely to ultimately suffer the same fate in India as in the US, infringement is not proved automatically by demonstrating scattered references to the word ‘Scrabble’ on the Scrabulous website. A trademark is not infringed in India if the use ‘indicates the kind, quality, intended purpose .. or other characteristics of goods or services.’ (Sec. 30(2)) In other words, if Scrabulous is using the word ‘Scrabble’ to show that it is Scrabble-like and not Scrabble® itself, the use is non-infringing. Further, a trademark used in advertising material is not infringing unless it “takes unfair advantage of and is contrary to honest practices in industrial or commercial matters or “is detrimental to its distinctive character” or “is against the reputation of the trade mark”. Lastly, and importantly, to succeed in an infringement action, the plaintiff must prove that the defendant used the mark intending its use to be taken by consumers as a trademark.
The law stated in the preceding paragraphs is only my interpretation of Indian law in the light of the facts, and there is ample scope yet for conflicting viewpoints. This article is not about the (il)legality of Scrabulous - although that discussion is fascinating it has by now been discussed to death. Very little remains unsaid these days after a blogosphere has had his say. I want to focus instead, on a few issues that have gone unexamined in this controversy so far:
1) They may take our word, but they’ll never take our FREEDOM.
An irate fan of Scrabulous received the following response to his complaint from Hasbro:
“(…) We encourage fans to continue to lay down online tiles at sites that have legally licensed the interactive rights to host SCRABBLE fun.”
In other words, either due to a mistake or megalomania, Hasbro actually believes that it owns not just the word, but the game Scrabble (and all the attendant fun you ever had. And your digital watch, because it’s cool). It’s a bit like FIFA claiming that they own football.
The use of the word ‘fun’ in this notice is unexpected and as a lawyer, one is not accustomed to encountering such words amidst such vast amounts of legalese. Just to be sure I wasn’t missing anything, I fetched an edition of ‘The Law Lexicon’ – an authoritative legal dictionary in India and checked if there had been any legal interpretations of the word ‘fun’. I found fun exactly where I expected it – in the vacuum between ‘fumes’ – odious smell - and ‘function’ – employment. Fun in law exists only as an omission.
Through the 1980s, the United States Olympic Committee – owners of the absolute right to all uses of the word ‘Olympic’ - waged a fierce legal battle against San Francisco Arts & Athletics, Inc. - the organizers of an event called the Gay Olympics. Eventually the US Supreme Court held by a majority that the Amateur Sports Act gave the USOC a peremptory right to regulate all uses of the word Olympic, and that the fact that the USOC did not prosecute other misappropriaters of the word did not amount to discrimination. (An interesting dissenting opinion was delivered by Justice Brennan who held that this right was overbroad and restrictive of the constitutional guarantees of free speech). The case dealt a crushing personal and financial blow to Tom Waddell - the key ‘inventor, architect and all-year worker for the Gay Olympics’.
After receiving the takedown order, Bogglific creator Roger Nesbitt announced his plans to shelve the game stating that he had “neither the time nor the money to fight this”. Fortunately, as it turns out he did not give up his fight and Prolific lives on.
When mundane acts such as game-play become the sites of legal contestation over freedom and survival, it becomes necessary to re-examine the precepts of the legal system under which we operate.
2) When we ignore the legal case, we are left with newer and richer forms of social engagement.
I was about ten, the last time I played Scrabble. My grandmother, who was a Scrabble addict, had just suffered a stroke that left her mildly dyslexic. She passed away shortly afterwards. I remember her favourite word : QAT for 32 points with a triple letter score™. The enthusiasm for the game in the family waned after that. In the past month since I discovered it, I have played 27 games of Scrabulous (winning 18!) On the Save Scrabulous group at Facebook, one comes across repeated references to similar testimonies – people who gave up playing the board version of the game years ago suddenly finding themselves addicted to it.
Scrabble’s success did not owe as much to the plastic tiles and board that came with the set, as to the fact that social relationships were formed and cemented around it. The Scrabble board is not, like a park, an object of aesthetic contemplation, as much as a playground, "a site of active and participatory recreation". So the amount of fun™ you could have was directly dependent on the number of people you knew who were both close at hand and willing to congregate at one spot over an uncertain period of time – a combination that is becoming increasingly difficult to achieve in these migrant times.
The appeal of Scrabulous + Facebook lies in the fact that it simulates both that sheltered domesticity within which one plays word-games with friends and relations at home, as well as a club where random encounters with fellow scrabblers is possible. The annoyances that come with the scrabble board – setting up the board, picking letters, scoring, looking up words in the OSW, tidying up – are taken care of by an extremely nifty piece of software that makes these tasks barely noticeable so that one can focus exclusively on the game.
There are high odds against finding oneself simultaneously playing Scrabble with a childhood friend settled in Australia and some random person named Juliette whom you’ve never met. Except for Scrabulous.
3) Genericide - How to reclaim our wor(l)d
Far back in 1982, the Ninth Circuit Court of Appeals in the US declared that “as applied to a board game, the word "Monopoly" ha[d] become "generic," and the registration of it as a trademark [was] no longer valid.”
The court relied on a survey in which people who said that they had purchased the game within the last couple of years or would purchase it in the near future were then given a choice of two statements and were asked which best expressed their reasons. Sixty-five percent chose: "I want a 'Monopoly' game primarily because I am interested in playing 'Monopoly,' I don't much care who makes it." Thirty-two percent chose: "I would like Parker Brothers' 'Monopoly' game primarily because I like Parker Brothers' products."”
In the words of the Court, a word used as a trademark is generic if the primary significance of the term in the minds of the consuming public is the product and not the producer.
In 2002, the Austrian Supreme Court ruled that ‘Walkman’ – originally trademarked by Sony was generally understood a generic term to describe portable cassette players and so the trademark was unenforceable.
In 2006, there was mild panic at the Google headquarters when Merriam Webster included “to google” as a verb in the newest edition of its dictionary. In reply Google sent out a note to newspapers advising people and journalists against using Google as a verb and suggesting alternative terms.
Trademark allows corporations to create private empires by fencing off units of language. Unfortunately for them language has its ways of “striking back”.
To all those interested in saving Scrabulous, I suggest the following simple solution: Set up a blog site and write about yourself as a scrabbler and your passion for scrabbling. Never mention the words Hasbro or Mattel.
Conclusion
A. K. Ramanujan’s ‘A Flowering Tree’ - fascinating collection of oral tales from India - begins with a story in which a housewife knows a story and a song, but refuses to narrate them to anyone. Eventually, the story and the song take their revenge by transforming themselves into a stranger’s shoes and coat, causing her husband to suspect her fidelity. Writing about the story, Ramanujan says:
“This story is a story about why stories should be told. They are told because they cry out to be told. If they are not, they rankle and take revenge.
In this worldview nothing is ever lost, only transformed. Untold stories and unsung songs become shoes and coats, and take revenge against the niggardly nontellers. Material and nonmaterial things are all made of one substance, according to a familiar Hindu point of view some are sthula, “gross,” others are suksma, “subtle.” Nothing is truly destroyed—things are displaced, converted, transformed, according to a belief in the “conservation of matter.”
Games must be played. If not they rankle and take revenge – Jumanji-like.
tags: bangalore-hyderabad india education scrabulous fun trademark games genericide monopoly language
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