I’m old enough to remember the internet’s first big copyright drama: the notices sent to X-Files and Star Wars fan sites.
Those were early days, back when no one knew anything but corporations knew even less. Fan-fiction (fanfic) and fanart had been “underground” activities before the appearance of the Web. Even fan communities had been somewhat obscure. Now they were all much easier to find. And Fox and Lucasfilm weren’t sure if that would be a help to their business or a threat to it.
The earliest “xfiles.com” was a fan site. Clunky as its design looks to us now, it understood the fans’ need for community, giving them a club page and a live chat room, as well as a link to licensed merchandise.
Fox’s response was uneven. Sometimes it encouraged these strange little “webmasters”; other times, with little warning or consistency, it sent cease-and-desist letters to them. Lucasfilm did the same, less frequently.
Did they have any reason to do so? Internet video was almost nonexistent in the 1990s, so websites couldn’t compete directly with TV or movies even if they’d tried. On the other hand, the internet was growing wildly in the 1990s, so fast that one could imagine unofficial X-Files and Star Wars stories, merchandise, and images eclipsing official works. And since fanfic and fanart can get pornographic (or political), such prominence could compromise the brands.
Still, threatening your fans is never a good look. After a while, Fox began to leave well enough alone. Lucasfilm went further, embracing the online community more and more openly until just before its sale to Disney in 2012. Though fears of legal action killed some fan sites and left others unborn, the hardier ones kept going. And while they’re not nearly as prominent, some continue today.
It’s tempting to think that the New York Times’ flurry of takedown notices won’t affect the art of puzzles much in the long run. The Bosnian Wordle, after receiving one of the first of those takedown notices, reinvented itself as “Primer,” changed its color scheme, and now soldiers on. A Korean Wordle, after getting another such notice, has blinked out of existence…but there are other Korean Wordle variants online.
Also, pages and sites can disappear for reasons that have nothing to do with legal threats. Sometimes developers get bored. Sometimes they don’t pay their hosting bills. Many sites that leave the internet leave without explanation, and even when they post such an explanation, it often doesn’t attract notice.
But this perspective vanishes the closer you get to the issue. This 404 media article cites a couple of Wordle variants that were lost with little chance they’d be replaced. And we’ll never hear about the Wordle-like games that are never created because developers get wind of this and would rather avoid trouble.
The latter issue is known as a chilling effect. A chilling effect happens when the threat of legal sanction scares people off even when they’d be within their rights to act. How do you know that lawyers are trying to create such a chilling effect? Usually, it’s when their statements are maddeningly broad or vague.
The NYT, perhaps sensing it had stepped in a hornet’s nest, contacted 404 media to try to set the record straight. But it didn’t clear things up as much as it could have:
"The Times has no issue with individuals creating similar word games that do not infringe The Times’s 'Wordle' trademarks or copyrighted gameplay. The Times took action against a GitHub user and others who shared his code to defend its intellectual property rights in Wordle. The user created a 'Wordle clone' project that instructed others how to create a knock-off version of The Times’s Wordle game featuring many of the same copyrighted elements. As a result, hundreds of websites began popping up with knock-off 'Wordle' games that used The Times’s 'Wordle' trademark and copyrighted gameplay without authorization or permission."
Sounds reasonable-ish at first, but which “similar word games” are safe, and which are “infringers”? What are those “copyrighted elements”? It can’t be “guess a five-letter word and get points for getting letters right,” because that’s the 1955 game Jotto.
It can’t be the more specific “guess a five-letter word and learn which letters are in the final word and whether they’re in the right place or not,” because that’s the 1987 game show Lingo, which returned to the screen in 2023. That similarity led copyright lawyer Bruce Boyden to argue that such gameplay is not copyrightable.
There is a trademark attached to the Wordle name, but even that’s a little dodgy. Actually, there have been many “Wordles” that came out before Josh Wardle invented the game in late 2020. And people are going to keep calling Wordle-like games “Wordles,” the same way they’re going to keep calling the pills “aspirin” and the photocopies “xeroxes.” Now, yes, a few uses of the “Wordle” name could be argued to cause confusion in the marketplace. But not as many as one might suppose.
Maybe it’s the color scheme? After all, who could imagine another context in which green means “all clear” and yellow means the next best thing to “all clear”?
Many Wordle-influenced games do use Wordle-like grays, soft yellows, and soft greens, including the two I play regularly, Waffle and CineNerdle. But it’s tough to argue that those are close enough to Wordle to be considered “clones.” And while I’m sure other color designs are possible, this one has an intuitive logic that seems cruel to deny.
Maybe it’s how the game gives you six chances? Yeah, I’m sure nobody’s come up with that before.
If there’s any copyright case to be made here, it involves some combination of the above elements. But which combinations might bring legal action or threats is anyone’s guess—and that seems likely to be by design.
Tomorrow, I’ll bring my personal conclusions to the matter, as well as a setup for some follow-up coverage here and in the Journal. Until then!
Gee, I wonder what you're referring to when you allude to another game that "gives you six chances."
https://s3.crackedcdn.com/phpimages/personalexperience/7/4/6/582746_v2.jpg
Cogrent and well argured. Maybe JOTTO's lawyers should warn the TIMES to back off.