Ackerman v. Pink

In copyright infringement action brought by author of nonfiction book about video game Tetris against screenwriter, producers and distributor of Tetris film, district court dismisses complaint in its entirety, finding that book consists of largely unprotectable historical facts and that two works are not substantially similar. 

In 2023, Daniel Ackerman, author of the nonfiction book The Tetris Effect: The Game That Hypnotized the World, filed a lawsuit against the screenwriter, producers and distributor of the film Tetris, along with The Tetris Co. and its CEO, alleging that defendants used plaintiff’s book without his authorization in creating the film. Plaintiff asserted claims for copyright infringement, unfair competition and tortious interference with business relations. The book is a nonfiction account of various aspects of the Tetris video game. It focuses on Tetris’ creation and development in the Soviet Union, the backgrounds of the key players involved in the game’s development, and the acquisition of rights to the game from the Soviet Union. The film is also based on the real-life story of video game designer and publisher Henk Rogers but focuses on Rogers’ acquisition of the rights to Tetris, including “tumultuous negotiations” in the Soviet Union, and a subplot involving KGB agents, dramatized car chases and a “honeypot” scheme. 

As to the copyright infringement claim, plaintiff alleged that he published his book before defendants released the film and that he sent a prepublication version to Tetris’ PR company. He contended that defendants copied his book to create the film and that there were substantial similarities between the works. With respect to the unfair competition claim, plaintiff alleged that defendants misappropriated his labor for their own gain and improperly refused to license their Tetris intellectual property (IP) for plaintiff’s use in an audiovisual adaptation of the book that plaintiff was planning. The Tetris Co. also sent a cease and desist letter to plaintiff, which allegedly caused plaintiff’s agent to withdraw from pursuing film and television opportunities. Plaintiff asserted tortious interference claims against The Tetris Co. and its CEO in connection with the cease and desist letter. 

Defendants moved to dismiss the complaint in its entirety, arguing that plaintiff’s copyright infringement claim was based on unprotectable elements, such as historical facts and events, ideas, real-life individuals, and scenes a faire. Moreover, even with respect to the potentially protectable elements of plaintiff’s book, defendants argued that there is no substantial similarity between the works, both as a whole and with respect to the alleged similarities that plaintiff had listed in his complaint. 

After reviewing the parties’ papers, as well as the book and the film in their entirety, the district court dismissed the complaint. With respect to the copyright infringement claim, the court noted that because the works contain both protectable and unprotectable elements, the court’s analysis must be more discerning than the “ordinary observer test,” and it must attempt to extract the unprotectable elements from its assessment and consider whether the protectable elements, standing alone, are substantially similar. Moreover, because the book is a nonfiction account of actual events, proof of infringement was more difficult, because copyright protection does not extend to facts or events, even if they are discovered through original research. 

In its substantial similarity analysis, the court first found that most of the purported similarities identified by plaintiff were unprotectable facts, real people and historical events. Moreover, the court concluded that the film did not misappropriate the book’s unique expression of those facts, and, in fact, the expression of those facts was “markedly different” in the book and the film, despite covering some of the same events. For example, the book provides additional information about other games produced by Nintendo, which are not referenced in the film, and portrays Nintendo as having hatched the plan to acquire the rights to Tetris. In contrast, the film casts Rogers as a visionary, which played into the film’s overall narrative depicting Rogers as a hero. Plaintiff contended that certain of the details in his book were discovered through his original research, which defendants allegedly copied, but the court disagreed. It reiterated that true events are not entitled to copyright protection, even if discovered through original research. 

Plaintiff also contended that the film is substantially similar to his book in that they both employ Cold War themes. The court rejected that argument, finding that the film’s use of Cold War themes constituted unprotectable scenes a faire, as it would be “virtually impossible” to create a film about the monetization of a product coming out of the Soviet Union in the 1980s without including Cold War themes, such as government surveillance and honeypot schemes. 

After concluding that none of the specific similarities identified by plaintiff amounted to a substantial similarity between the works, the court assessed whether there were other similarities, such as the total concept and feel, theme, characters, plot, sequence, pace, and settings. Acknowledging that the two works share many of the same characters, plot points and settings, the court ultimately held that the total concept and overall feel of the works differ substantially. On the one hand, the book is told in third-person narration, detailing the comprehensive history of Tetris, and provides extensive detail about the people involved and the world of video game publishing. On the other hand, the film focuses on the race for the rights to Tetris and is presented in a suspenseful, action-packed and obviously dramatized manner—at times even deviating from the true facts underlying the story, such as the KGB subplot—compared with the informative tone of the book. Accordingly, the court found that the film is not substantially similar to the book and dismissed the copyright infringement claim with prejudice. 

The court likewise dismissed plaintiff’s unfair competition claim as preempted by the Copyright Act. The court explained that state law unfair competition claims are preempted when they assert claims that mirror one of the exclusive rights under copyright. To avoid preemption, the unfair competition claim would need to include an extra element that makes it qualitatively different from a claim of copyright infringement. Because the book is a type of literary work protected by the Copyright Act and plaintiff did not allege that defendants misappropriated his labor through fraud or deception, there was no “extra element.” The court therefore concluded that the unfair competition claim was preempted. Moreover, even if it were not preempted, the claim would still be dismissed on the merits, the court explained, because there was no substantial similarity between the two works, and, therefore, the public would not be confused as to the identity of the works. 

Lastly, the court dismissed plaintiff’s tortious interference with business relations claim, both on statute of limitations grounds and on the merits. The Tetris Co.’s cease and desist letter was sent to plaintiff in 2016, yet he did not file suit until 2023. Moreover, the court found that the letter was not sent for any “wrongful purpose” but merely to protect The Tetris Co.’s IP rights. 

Summary prepared by Tal Dickstein and Elena DeSantis