Copyright allows for either the author of the work or the holder of the copyright, exclusive ability to the distribute and use the copyrighted material. Copyright does not protect the idea for a game, its name or title, or the method or methods for playing it. Nor does copyright protect any idea, system, method, device, or trademark material involved in developing, merchandising, or playing a game. Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles. Copyright protects only the particular manner of an author’s expression in literary, artistic, or musical form.
Of further note Wizard's claim of infringement on "play sequence, flow of Magic, pace and sequence of Magic" is out of place with what Copyright protects. As such this area of the case is the weakest. This section will ignore these claims and discuss them later in the patent section of this site.
After playing both Hex and Magic, I feel Wizard's claim of copyright infringement is the case's weakest claim. The language in the case ask for a wide range of protection not offered to copyright.
For one the plot and circumstances of the games are different:
Magic the Gathering takes place on multiple planes of existence and has the player take the role of a planeswalker who battles other planeswalkers.
Hex is limited to one planet where the play acts as a general with a Champion and an army trying to defeat opposing players.
For the claim of similar elements:
Magic is divided into five different colors of mana Blue, White, Green, Red, and Black.
Hex is divided into five different type of resources Blood, Diamond, Sapphire, Wild, and Ruby.
While similar the idea of different elements making of a system is not unique to Magic the Gathering. Wu Xing a Chinese philosophy and Mahābhūta a Hindu philosophy both are ancient systems which incorporate a five elemental system.
On the less literal side, the elements of the game maybe similar, but that is due to the nature of both games being trading card games. Magic is one of, if not the oldest, modern trading card game. As such what it may feel to be copyrighted material, has since become a common element in trading card games.
While I do not have time to go into all the details of the claim, I feel many of the elements submitted as infringement in the suit are elements of modern trading card games that have developed due to the success of Magic the Gathering.
Because of this evidence I feel Wizard’s does not have a strongly supportable case for Copyright.