Infringement Is Not a Trivial Pursuit

Who owns the trivia in the game Trivial Pursuit?

Probably no one, but certainly not Frank L. Worth, according to a decision by the U.S. 9th Circuit Court of Appeals in a copyright-infringement case decided earlier this month.

Worth sued the creators and distributors of the Genus, Baby Boomer and Silver Screen editions of the popular home game, claiming they infringed the copyright he held in Volumes 1 and 2 of “The Complete Unabridged Super Trivia Encyclopedia,” which he authored.

The game creators did not deny that they consulted Worth’s books in the development of their board game. Indeed, many of the questions in the game dealt with the same facts as those described in Worth’s trivia books, according to the court. (Worth contended that as much as 27% of the game questions were taken from his book.)

For the uninitiated, the game--an incredible commercial success with sales volume of $256 million in 1984--consists of a set of cards with trivia questions and answers in such categories as art, literature, sports and history. The object of the game is to advance around the board, which you can only do if you answer the questions correctly.

However, the basic tenets of copyright law blocked Worth’s legal assault. Simply put, the law says that nobody can own facts, ideas or history. “The discovery of a fact, regardless of the quantum of labor and expense, is simply not the (protected) work of an author,” explained the court.

With a registered copyright, you only protect against the unauthorized use of the expression of facts or ideas. That’s why it is much easier to win a copyright-infringement suit when a work of fiction is involved rather than a nonfiction work.

In order to win a copyright-infringement suit, you must prove that you owned--created--the underlying work, that the infringer had access to your work and that there is a substantial similarity between the two works in both the ideas and the expression of those ideas.

In this case, the court concluded that the arrangement of Worth’s trivia was not copied. The facts may have been the same, in some degree, but the selection and arrangement of those facts were not substantially similar.

There are still some legal grounds you can use if someone else steals your idea, but copyright law will be of little help, as demonstrated by this case.

You might be able to sue under a theory called breach of an implied contract. Earlier this year, the same court decided that an author who had written a book explaining how to win the crossword board game Scrabble could pursue a lawsuit against the owner of the game, which published its own book on the subject after the author had submitted his book to the company.

Essentially, the court upheld the legal rule--widely known and feared in the entertainment community--that where someone accepts and uses an idea, in circumstances where the recipient knew that compensation was expected in exchange for disclosing the idea, there is a valid contract, even though one was not clearly stated orally or in writing. Of course, that was not the situation in the Trivial Pursuit case, so this legal principle was of little value to Worth.

Attorney Jeffrey S. Klein, The Times’ senior staff counsel, cannot answer mail personally but will respond in this column to questions of general interest about the law. Do not telephone. Write to Jeffrey S. Klein, Legal View, The Times, Times Mirror Square, Los Angeles 90053.