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**Update (May 8, 2007): we have a new blog entry on this topic, WAKA v. DCKickball: A Claim Worth Kicking Aside?** - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - -
From Dave McKenna of the Washington City Paper comes news of a federal lawsuit over kickball (McKenna, "Playground Bully," Washington City Paper, 3/9/2006; see also "The Cold-Blooded World of Competitive Kickball," Deadspin, 3/4/2006).
In WAKA LLC v. DCKickball, the founders of the World Adult Kickball Association ("WAKA") are asking the U.S. District Court for the Eastern District of Virginia to prevent DCKickball (as pictured to left) from organized play this year. This is yet another David v. Goliath story: WAKA allegedly has tens of thousands of members and affiliated divisions, while the upstart DCKickball featured about 400 players in its inaugural season last year.
Without seeing the complaint, WAKA's claims, as described by McKenna, appear far-fetched: WAKA contends that DCKickball has infringed on its copyright by "unauthorized use" of two of WAKA's co-ed kickball rules. These two rules are the "clearly unique requirement that there be 4 men AND 4 women at a minimum to play" and a 21-year old age floor for play. I'll admit to knowing nothing about adult kickball, as the last time I played the sport was in middle school, but co-ed kickball doesn't strike me as that unique; if I recall correctly, kickball in middle school was co-ed. And more specifically contending that there is something unique about 4 men and 4 women on the field (playground?) also seems like a stretch, unless WAKA can somehow prove that it came up with the idea, that it is clearly distinguishable from past ideas about kickball, and that it is essential to their league.
The suit also contends that DCKickball founder Carter Rabasa defamed WAKA by calling it the "Microsoft of kickball" in stories appearing in the Wall Street Journal and the Washington City Paper. That claim also strikes me as quixotic. For one, defamation lawsuits are extremely difficult to win, particularly when the statement seems more like an opinion than an asserted fact (and this statement appears to be an opinion, as I'm not sure what specific facts would give rise to WAKA being considered the Microsoft of kickball). And second, the statement "your company is the Microsoft of some industry" may not be insulting. Sure, it means that you dominate the market, but it also means that you have been incredibly successful. And if the statement isn't prima facie insulting, then it will be dismissed.
I think the real lesson from this lawsuit, and from the Harlem Globetrotters attempt to squash the upstart Harlem Ambassadors, is that appearing afraid of a smaller actor in a given industry only draws attention to that smaller actor and thus unwittingly tilts the "balance of power" in its direction.
-- Posted by Michael McCann @ 3/09/2006 10:41:00 AM --
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6 Comments:
I wasn't aware that following the same rules that were established by another league is copyright infringement. Does this mean that a city league adjusting the size of a pitcher's mound to keep in line with a change in MLB regulations would be a violation as well?
Adam: that's a good question, but my sense is that the claims by the WAKA about their rules being copied do not appear credible. Typically, game rules are not protected by law, and I haven't yet seen a reason why a court would depart from that custom in this particular circumstance. And if I had to guess, and without any inside knowledge, I would suspect that this lawsuit is driven by some kind of personal rivalry/feud between the organizers of WAKA and those of DCKickball. But thankfully, that's the kind of lawsuit that courts tend to dismiss with great haste.
As a friendly clarification, you can't own a copyright in the mechanics of a game, but you can own a copyright in the original expression of these mechanics. Put another way, you are free to copy the method of play, but you need to express it in your own words (or in words in the public domain). Game mechanics are procedures or processes or systems, all of which are not covered by copyright. See 17 U.S.C. sec. 102(b). Confusion is caused by our use of the word "rules" to describe both the underlying mechanics of a game and the particular wording of these mechanics.
The protection for the wording of rules has limits, however. When there are only a limited number of ways to express a rule, which would seem to apply in this kickball case, others should be free to copy the rule's wording under copyright's "merger" doctrine.
Although I have not seen the complaint -- it is not available in Pacer -- WAKA's claim sounds very weak. It seems WAKA thinks it can monopolize a game mechanic or a short, one-sentence statement of a game mechanic. Absent a patent, the court should not let it do either.
I played and volunteered for WAKA for one season and left to play in a city league.
MLB.com states on their rules page that they understand baseball is a universal sports with many variations. They expressly give permission to anyone that wants to use their rulees for their game or make any modifications need be.
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