IP Law Daily, COPYRIGHT—S.D.N.Y.: Pieces don’t fall into place for Tetris book author, (Mar 7, 2025)

By Matthew Hersh, J.D.

An historical account of the famous game was not infringed by a film dramatization.

An Apple TV drama about the race to acquire the rights to a famous 1980s-era video game was not substantially similar to an earlier historical account of the same series of events, the federal court for Manhattan has held. The court, in dismissing on the face of the pleadings a copyright infringement lawsuit against Apple and its project co-collaborators, emphasized that the writer did not clear the high bar for showing substantial similarity in the context of a work of nonfiction (Ackerman v. Pink, No. 1:23-cv-06952-KPF (S.D.N.Y. March 6, 2025)).

The game at the center of the dispute is Tetris, the now-ubiquitous animated puzzle designed by Alexey Pajitnov in 1984. Daniel Ackerman, a technology and video game journalist, released a non-fiction book in 2016 entitled The Tetris Effect: The Game That Hypnotized The World. The book tells the story of how Henk Rogers, a Dutch video game designer and entrepreneur, beat out two other competing Westerners in obtain the rights to the then Soviet-controlled game. Seven years later, in 2023, Apple TV screened a fictionalized version—“[b]oth origin story and underdog dramedy, as one review put it—of the same story.

The book author sued Apple TV as well as a host of other characters behind the movie—including screenwriter Noah Pink and The Tetris Company, the Rogers-formed holder of the rights to the game—for copyright infringement, unfair competition, and tortious interference. The defendants moved to dismiss the complaint, leading to this opinion.

Copyright infringement. The court, finding a lack of substantial similarity between the book and the later movie, dismissed the copyright infringement on the pleadings. Works of history and historical fiction “present unique complexities for substantial similarity analysis,” the court noted, because historical facts and interpretations of historical events are “not copyrightable as a matter of law.” Thus, the court noted, it would be required to use a “more discerning” test in conducting the substantial similarity analysis in this case. In conducting that inquiry, the court emphasized, it would have to examine whether the defendants misappropriated the way the author “selected, coordinated, and arranged” the facts in his book as well as similarities in the works’ total concept and feel, theme, characters, plot, sequence, pace, and setting. “Under either analysis,” the court noted, there was “no substantial similarity.”

There was no copying of the selection, coordination or arrangement of historical facts, the court found. A careful analysis of the book author’s purported similarities, the court noted, made this clear. For example, while both works set forth the factual relationship between Rogers and Nintendo—which at one point packaged Tetris with its Game Boy product—“the expression of these facts is markedly different in the book and the film,” the court noted, because the book “provides additional information about the people involved and other games produced by Nintendo” while the film “deviates from the facts presented in the book” by changing the location and sequence of events. “The film’s portrayal makes Rogers the visionary, playing into its overall narrative that Rogers is the hero,” the court noted, “whereas the Book indicates that, with regard to handheld rights for the Game Boy, [Nintendo President] Arakawa had the master plan to conscript Rogers into acquiring handheld rights on Nintendo’s behalf.”

By the same token, the court found, the film’s opening scene—which is set at the Computer Electronics Show in Las Vegas—was not substantially similar to the portrayal in the book. For one thing, the court noted, while both works describe the “cacophony of lights and sounds,” “[l]ong halls” and “a sea of tents, tables, signs, and booths” at the show, that was simply a portrayal of a historical fact—as well as the kind of scène à faire that “would typically be used in a work depicting ‘Sin City,’” the court noted. And in any event, the court noted, the film and book expressed the fact differently—in the book Rogers was described as being “far from … knocked out” by his first experience playing Tetris at CES, the court emphasized, while Rogers’s character in the film “later emphatically describes Tetris as ‘the most beautiful thing [he] had ever seen.’” These and other purported similarities between the works, the court found, did not add up to infringement.

And even when the court “zooms out and more broadly examines whether there are similarities in such aspects as the total concept and feel,” the court emphasized, the infringement claim still failed. For example, while the three-way race among Rogers and his competitors for the rights to license Tetris was “presented in a way that is at times suspenseful,” the court noted, the book also took care “to provide extensive detail about the real people involved in the race for the rights to Tetris and the burgeoning world of videogaming into which Tetris was born.” In contrast, the court noted, the film was largely confined to the three-way race for the rights to Tetris and tone of the film, rather than being informative, was “suspenseful, action-packed, and clearly dramatized.” Thus, a review of both the book author’s specific claims of similarity and the full works themselves “satisfies this Court that the Film is far from a wholesale usurpation of another’s expression that would be actionable in a copyright case involving a historical work and a work of historical fiction.”

Common law claims. With the copyright infringement claim out of the way, the court had little trouble disposing of the remaining claims. The unfair competition claim was easily dismissed, the court found, because it was preempted by the Copyright Act. As to the tortious interference claim, the court found, that was time-barred. The claim arose of the allegation that Maya Rogers, the daughter of Henk Rogers, interfered with the book author’s own efforts to dramatize his work. But the alleged interference, the court noted, took place in 2016—seven years before the author initiated his suit. This claim, too, would therefore fail.

The Case is No. 1:23-cv-06952-KPF.

Judge: Failla, K.

Attorneys: Kevin A. Landau (The Landau Group, PC) for Daniel Ackerman. Tal Efriam Dickstein (Loeb & Loeb LLP) for Noah Pink, Maya Rogers, Apple Inc., Access Industries, Inc., AI Productions Ltd., Marv Studios Ltd., FB Commissioning Ltd., and The Tetris Company

Companies: Apple Inc.; Access Industries, Inc.; AI Productions Ltd.; Marv Studios Ltd.; FB Commissioning Ltd.; The Tetris Company

Cases: Copyright NewYorkNews GCNNews