Wordle Copycats & IP Law

By now, I am sure most of us have either heard of or played the daily brainteaser Wordle. The online 5-letter word game developed by Josh Wardle, a Brooklyn-based software engineer, is released daily. Players have six attempts to guess the word of the day. Simple enough. But, with any new internet craze, comes those trying to mimic and profit off the wining formula. Wordle itself has spawned several variations, including Worldle, a geography-based version, and Heardle, using songs rather than letters in its iteration, to name a few.

The concept itself is not an original idea. The basic gameplay was popularized by Lingo, a gameshow that dates back to the 1980s. With that said, it is increasingly difficult to copyright an abstract game mechanic like “guessing five-letter words and giving hints based on correct letters.” Game developers can file for a patent on an original gaming idea, but doing so can be a long and arduous process. In addition, under s. 28.3 of the Patent Act, the subject-matter defined by a claim in an application for a patent in Canada must be subject-matter that would not have been obvious on the claim date to a person skilled in the art or science to which it pertains. Regarding Wordle, this could pose a significant challenge, noting the previous adaptations of the game and its simple and obvious nature.

While the idea of Wordle is not offered legal protection, the game’s specific expression of that idea is. In the case of Atari v Oman 1992, soon-to-be Justice Ruth Bader Ginsburg held, the game was not too simple or uncreative to be copyrightable. The creativity requirement is modest, “requisite level of creativity is extremely low; even a slight amount will suffice. Simple geometric shapes and coloring alone are not per se not copyrightable. In essence, a clone that copied the user interface, layout, and other design elements of Wordle might still fall afoul of the law. For instance, The Tetris Company, in the case of Tetris clone Mino, took developer Xio Interactive to court to protect the Tetris copyright. The dimensions, display, and appearance amounted to wholesale copying of features deemed to make Tetris unique.

In the case of CCH Canadian Ltd v Law Society of Upper Canada 2004, the Supreme Court of Canada established the threshold of originality and the bounds of fair dealing in copyright law. The Court concluded that the proper approach fell between the approach of labour and diligence, and that of creativity. Chief Justice McLachlin stated that the exercise of skill and judgement would require “intellectual effort” and “must not be so trivial that it could be characterized as a purely mechanical exercise.” Despite Wordle’s success, the basic idea of the game is much older. Its simplistic nature and unoriginality may pose challenges under IP protection in Canada.