Of all the companies that might get into a copyright dispute over a video game, I wouldn’t have guessed it would be Atari vs. Nestle. But 2017 has been a crazy year, and now here it is. This case concerns a recently launched ad campaign for that delicious chocolate and crispy wafer candy, Kit Kats. Atari claims that these ads improperly used one of its most famous games, Breakout. If you’re unfamiliar with Breakout by name, you would probably still recognize it by sight. In the game, players move a platform left and right to bounce a ball up toward multi-colored bricks. When the ball hits a brick, the brick breaks, and the ball bounces back down. If players miss the ball on the way back down, they lose a life. And repeat. As you undoubtedly noticed, Kit Kat bars look a lot like Breakout bricks. Well, someone in Nestlé’s advertisement department clearly noticed this, too. The ad plays with this fact, substituting chocolate-brown Kit Kats for Breakout’s colorful bricks. Nestle even called the campaign “Breakout.” Wow! that’s pretty blatant. Atari makes a number of different claims in its complaint before the Northern District Court in California, but they come down to two basic issues: First, Nestle improperly used Atari’s trademark in the name and style of Breakout. And second, Nestle improperly infringed in Atari’s copyright for the design of the game. This case seems pretty straight forward, and, at least to my eyes, Nestle is in trouble. Of course, Nestle didn’t use the game itself in the ads. But neither trademark infringement nor copyright infringement require an exact copy. Instead, trademark infringement asks whether consumers will be confused about who owns the Breakout mark. Copyright infringement asks if the design of the game in the ad is “substantially similar” to the design of the original game. Here, the candy company created something similar enough to remind you of Breakout that also incorporated Kit Kats into it, so viewers would want to buy the candy, not play the game. It seems clear to me that Nestle’s is specifically playing off of the popularity and recognizability of Breakout. As such, I think there is a substantial likelihood for consumer confusion, and trademark infringement seem probable. Similarly, the design of the ad is intentionally similar remind you of Breakout. And so, copyright infringement is similarly likely. Nestle has some room to argue against Atari’s claims, but I think it’s going to be hard for the company to avoid fault. This story reminds me of all those t-shirts you can buy today that use images from famous cartoons, movies, and tv shows that are almost certainly not licensed products. While a cat dressed up like Darth Vader may be funny, it’s not necessarily legally compliant. But I doubt the people who create those shirts ever ask themselves whether it is ok to do so. They just create the shirts and hope they sell. Similarly, I wonder if anyone at Nestle ever asked whether using the design and name of Breakout would be ok. They probably just wanted to create an ad that would appeal to an audience of 30-to-40 somethings who are nostalgic for classic video games. And they probably never expected anyone to complain. So what’s the moral of the story? I think it’s simple: Think about copyright and trademark before you create something. Stop for a second and consider ahead of time whether what you’re doing is ok, and if the answer is “no” or “maybe not”, be careful. Remember that nearly any creative work you can think of is protected by copyright, and if you use something without securing permission to do so, the owner might try to stop you.            

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