Posted by: Catherine Holahan on July 31, 2008
Call it bizarro Scrabble. The sibling duo behind Scrabulous, the online Scrabble knockoff that became a smash on Facebook during the past year, has reinvented their game as Wordscraper.
Like Scrabble, the objective of the game is to maximize points by spelling a word from a combination of public letters placed on a board and seven randomly selected letters known only to individual players. Wordscraper’s twist is that users can alter the traditional Scrabble board by choosing where to place the bonus squares—or in WordScraper’s case circles—that can double or triple word values.
Jayant and Rajat Agarwalla launched the new game July 31 after Hasbro, which owns the North American rights to Scrabble, filed suit for intellectual property infringement. The brothers removed the game from Facebook July 29 after the social network received a takedown notice from Hasbro’s lawyers alleging that Scrabulous violated its copyright and, therefore, Facebook’s terms of service.
A week before Hasbro filed suit, game-maker Electronic Arts launched a licensed version of Scrabble on Facebook. The game, called Scrabble, has been continually unavailable on the site thanks, in part, to hacker attacks.
The Agarwalla brothers are clearly hoping that the new game is sufficiently different from the original Scrabble that Hasbro drops the lawsuit. Hasbro executives, however, haven’t decided whether Wordscraper warrants continued attention. “We are pleased that the unlawful application has been removed from Facebook,” said Hasbro spokesperson Shelly Eckenroth. “We evaluate every situation on a case-by-case basis and have no comment regarding the Scrabulous developers’ new application at this time.”
The future of Wordscraper will hinge on whether the new game is sufficiently different from Scrabble and Scrabulous. “The change of the name could help them on the trademark side [of the issue],” says Craig Delsack, an Intellectual Property and technology attorney with his own practice in New York City. “The question is, under copyright law, is the expression of the game so substantially similar that it would be copyright infringement.”
Delsack explained further that the courts don’t let rights holders protect an idea, only the way the idea is carried out. So, for example, the creators of Superman can’t protect the idea of a super strong person who saves people from criminals. They can, however, enforce their rights if someone created a hero who wears a blue suit with a red cape and flies around saving people when not working at a major metropolitan newspaper. “Courts are looking at whether a plaintiff can prove substantial similarity,” says Delsack.
The Agarwalla brothers may have a difficult case to make. Bradley J. Gross, chair of the Intellectual Property Transactions Department at Becker & Poliakoff, a Fort Lauderdale, Fla., based firm, believes the brothers will have to prove that most Wordscraper customers will create boards substantially different from the Scrabble board. That may be unlikely given that the company first attracted fans when the game followed Scrabble’s rules. “Changing the look and feel in insignificant ways would not help the defendant avoid liability in a copyright case,” says Gross.
A bigger problem for the Agarwalla brothers may not be the lawsuit but whether Wordscraper is worth defending. While the idea of changing the placement of bonus tiles is interesting, the game isn’t as sleek as Scrabulous. Moreover, the appeal of Scrabulous wasn’t that it was a new twist on Scrabble, but that it was Scrabble—just online. It’s not clear that Scrabble fans will gravitate towards putting their own stamp on the online game.
Then again, if the hackers keep the official Scrabble from operating, Scrabble-addicts may have little alternative.