Copyright and Crosswords

On March 4th, FiveThirtyEight.com published a story regarding copying and alleged plagiarism in the world of crossword puzzles. Specifically, Timothy Parker, one of the most widely syndicated crossword editors in the nation, has edited over 60 puzzles that copy significant portions of the themes and grids from the New York Times crosswords, in addition to reusing and misattributing significant portions of his own crosswords.

The theme answers are longer crossword answers, often spanning 11-15 letters, are multiple words, and are thematically related to one another. For example, each is two words joined with “and,” where each answer relates to a different meal (from the article, “COFFEEANDDANISH,” “SOUPANDSANDWICH” and “MEATANDPOTATOES”).

Due to the rules of constructing crosswords – the grid must be symmetrical, no answer can be less than three letters, no letter may be included in only one word – there are certain limitations on construction. For example, if you have an even number of theme answers, they must be in pairs of equal length.

These answers can only be placed in certain parts of the grid to make the rest of the grid fillable. The first theme answer is most commonly found in the 3rd, 4th, or 5th row, with another in the corresponding row from the bottom. If there is a third answer, it would be in the 8th row to retain symmetry. If there are third and fourth answers, they usually would be in rows 7 and 9. Additionally, if the theme answer is in row 8, it has to be an odd number of letters, because weekly crosswords are typically 15×15 grids.

So, if your first theme is COFFEEANDBAGEL (14 letters), you would be constrained to pairing it with another theme answer of the same length, as it could not go in row 8 without creative an asymmetrical grid. Sometimes these rules are broken.

If, as a crossword constructor, you coincidentally stumble on a theme that’s been used before, the limitations of the format would make it more likely that you would settle on the same, or similar, phrases as had been used in the past.

But, even if you stumble across the same three theme answers, it’s incredibly unlikely that you would replicate the entire grid, as only a portion of the grid would need to be the same to accommodate the theme answers.

While there has never been a copyright case that I could find analyzing infringement of crossword puzzles, the court would look at how much was copied, whether what was copied is protectable by copyright, and whether there was actual copying – rather than arriving at the two puzzles independently. This last element is typically proven by showing access to the original and substantial similarity between the original and the allegedly copied work.

Among constructors, the theme of the puzzle is often considered the creative core, with grid and fill (the shorter answers) considered more of finesse around the theme than the creative nucleus of the puzzle.

It will be interesting to follow this story as it develops, and I hope to expand on my discussion here at a later date.