Published on July 12th, 2013 | by A. J. Asplund3
Law and Games: Copyrighting Games
Games, be they video games or tabletop games, have always had a strange relationship with the law. Most gaming enthusiasts hear about it from a lawsuit involving a game company or some website takedown of potentially infringing content. In the end, a lot of people have some basic understanding (and mis-understanding) of how the law applies to issues in gaming. As an attorney who has spent a considerable amount of time researching the intersection of law and gaming, I thought it would be appropriate to spend some time talking about it for all of those out there who may want to design and publish their own game.
Copyright: The Place to Start
The Federal Constitution grants Congress the power “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries[.]” U.S. Const. Art I, Sec 8. This forms the basis for a majority of the intellectual property law within the legal system of the United States. Of the different methods available, one that is most frequently asked about is copyright.
Copyright is one of those methods created by Congress through federal statutory law. The basic purpose of copyright protection is summed up in section 102 of the copyright statute. It allows the creator of a creative expression a measure of ownership over that expression. That being said, it only applies to a limited set of things, such as literary works, motion pictures, and musical works. Take a look at 17 USC §102(a) for the complete list of statutorily protected works under copyright.
If an author creates something that falls under the types of creative expression protected by copyright, that author will retain certain rights over the work. This includes controlling reproduction and distribution of the work but also includes derivative works, which are creative expressions based on the original work. When you look at trying to copyright a tabletop game, the important question is whether or not a game (be it board game, role-playing game, etc.) falls under the protections of copyright.
Monopoly: Helping to “clarify” gaming law for almost 80 years
As an iconic example to consider, I thought I would look at the classic Parker Brothers Hasbro board game Monopoly. [Note: The story of Monopoly is extremely long and involves many peculiar legal twists and turns. I am using it as an example because it is something that a majority of people are familiar with. Interested parties should look up the peculiar details of Monopoly’s history for the full story.] With Monopoly, the “pictorial, graphic, and sculptural” components of the game would be subject to copyright. This would include the artistic representation of the game board, the sculpted playing pieces, the art on the box, and similar creative components. Even the appearance of the money used in the game would be a protected creative expression.
Diligent readers may observe that I avoided addressing the rules of the game. Would the rules fall under copyright? If rules did fall under copyright protection, a game designer would have a great deal of influence in preventing others from releasing similar games. As it ends up, the specific expression of the rules is protected by copyright (essentially, as a literary work). What this means is that the rulebook as written is a protected creative expression. For example, if I tried to publish a game that included a word-for-word reproduction of the rules of Monopoly without permission, the owner (in this case, Hasbro, Inc.), would be able to take legal action against me for that violation.
But Copyright Can’t Cover Everything, Can It?
It may sound like Monopoly is locked up tight under copyright law. However, there is more to the copyright statute that deserves a look: “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” 17 USC §102(b) Courts seem to debate how to define these exceptions, but it is clear that there are things that do not fall under copyright protection in the United States. The important exceptions to think about here are ideas, procedures, processes, systems, and methods of operation. Courts sometimes argue as to which exemption would apply, but the consensus is that the system of rules for a game like Monopoly are exempt from copyright protection.
So what does this mean? If a person made a board game that had identical rules to Monopoly but changed the artistic expressions (i.e. new art, images, names, tokens, and rulebook), would the copyright owner of Monopoly have any legal action under copyright law? Assuming that all of the copyrighted expressions (art, tokens, rulebook, etc) were distinct and different, the original copyright holder would have no action available under copyright law. Sorry, Hasbro!
But what, if not Copyright?
All this being said, this does not mean that no legal protections exists for the rules of a game like Monopoly. There are other areas within intellectual property law, such as patents or trademark, that may apply. The important thing to take away here is that although copyright may protect artistic aspects of a game, they do not provide legal protection for rules and system associated with a game.
The statements made in this article are the opinions of the author (and the author alone) and do not constitute legal advice. Comments posted on this article do not create an attorney-client relationship. For further reading, the author recommends Bruce E. Boyden’s “Games and Other Uncopyrightable Systems.” 18 Geo. Mason L. Rev. 439 (2011).