By James Batchelor

The Tetris Company garnered widespread praise across social media earlier this month – not for product, but for a political stance.

On September 4, the firm posted via its official X account that it was "not involved in the creation" of 'Build The Wall' – a browser game on a White House website that used Tetris-style gameplay to build a border wall keeping out illegal immigrants.

The statement also bore the warning that The Tetris Company takes "copyright infringement very seriously."

Tetris is by no means a rare example of such infringement. In less than two years, the second Trump administration has used imagery, music, and other recognisable elements of Halo, Call Of Duty, Pokémon, Wii Sports, Animal Crossing, Sonic The Hedgehog and more, all in posts promoting its political agenda.

'Build The Wall' (which has since been removed) was part of the new Arcade.gov website, which has been promoted via videos mimicking the branding of Xbox 360, Nintendo GameCube and Sega.

Even during the creation of this very article, the White House X account posted a parody of The Legend Of Zelda: Ocarina Of Time using the game's logo and music, just hours after the dedicated Zelda Direct. It's become such a common tactic, there's even a Wikipedia page collecting the use of copyrighted works by Trump's administration.

And legal experts confirmed to Knowledge what so many of us suspect: technically speaking, the US government is in no way allowed to use third-party IP in this manner.

"Every use has to be evaluated on its own facts, but as a general matter, using copyrighted characters to promote a political message without permission creates real infringement risks," explains Kokoro Motegi, partner at Gamma Law. "If the administration wants to use someone's copyrighted characters or trademarks, it still needs a license or a valid defense like fair use. Being the government doesn't change that. 

"For the Tetris-style imagery, courts have already found the game's stacking blocks and visual elements to be protected creative expression, so reposting something that closely mimics it without permission looks like infringement – even though the underlying game mechanics themselves are harder to protect under copyright law."

Motegi notes this has been a recurring issue when it comes to political campaigns – for example, using popular songs at campaign events. A federal court previously ruled that, even if the event or social media post is not for profit, it still does not constitute fair use.

"The same reasoning likely applies to using Pokémon or Sonic images to push an immigration message. That's borrowing a recognizable image to make an unrelated point, not commentary on the original work itself, or parody. The Supreme Court’s 'Warhol' decision suggests courts won't extend the same latitude to these uses as to genuine parody."

So, why are more companies not fighting back?

Richard Hoeg, attorney at Mavacy PLLC, says the First Amendment's protection of freedom of speech is a factor here: "The United States treats [this] as almost sacrosanct. Even in the context of things like IP protection, telling someone they can't say something is seen as a deviation from the standard course – even when it comes to infringing copyright. So the law provides exceptions to infringement claims for broad categories of things which we – society – feel are necessary to provide for that freedom of speech. This is really where the notion of 'fair use' originally comes from (before it was statutorily codified). 

"But by far the biggest category of 'permitted infringement' is speech commenting on areas of political significance. When that political speech takes the form of parody, it is effectively 'protected' from infringement claims in two directions – as anyone at Sega, Microsoft, Nintendo or anywhere else would be told by their own legal counsel. In short, a lawsuit would be no sure winner, and would run the risk of alienating [a] portion of their fanbase."

Hoeg adds that while companies can release statements – as Tetris and The Pokémon Company have done in the past – these have a limited effect and may not be able to stop the activity they're protesting against.

"The more common approach is effectively silence," he continues. "That's not a very satisfying resolution for folks watching from afar, but it can certainly make sense in the individual board rooms these discussions are taking place in."

It's baffling that companies don't simply sue the administration but Motegi observes that, while this is technically an option, there's "limited legal upside" to doing so as a copyright claim against the federal government "doesn't work like an ordinary lawsuit."

"The only real remedy is a damages action in the Court of Federal Claims, and there's no way to get an injunction forcing a takedown," she explains. "So even a company that wanted to fight this couldn't get the image removed through the courts; the best-case scenario is money, but that would probably be years down the road and the damages recovered may be modest relative to the scale of these companies' businesses.

"For most companies, that cost benefit doesn't favour litigation, which is likely a big part of why we're seeing so little of it despite fairly clear infringement."

Another factor is that, since these posts are government speech, most courts are "generally cautious about doing anything that looks like it's second-guessing what the government chooses to say." Regardless of whether copyright has been infringed, this makes any lawsuit an uphill climb before it has even begun.

"Finally, there's plain business risk," Motegi concludes. "Many of these companies interact with regulators or need government cooperation in some form, and picking a public fight with the administration carries a retaliatory risk. 

"Put together, staying quiet is often the more rational choice than fighting a case with high cost and low payoff."