Board Game Lawyer - The Rules of the Legal Game

Hey Neil,

Great stuff, simple to understand, and well explained.

By the way, the text to FL-108 is available online, from here: http://www.copyright.gov/fls/fl108.html

Just wanted to say that I've really enjoyed your videos. I'm definitely not the target audience, but I have an interest in the law and how it is applied/interpreted in society and your videos have proven to be illuminating and approachable. Thanks!

"...the images themselves...those are copyrightable. But this idea of rolling dice and the sides that come up telling you what it is you can do that turn, that's an idea. That's in the public domain. Anybody can use that. So even within a work that's copyrightable as a whole, there are elements of it that members of the public can reach in and grab and pull out and reuse on their own."

• When you say on their own, is "their" a possessive pronoun for elements or members of the public?

• If a person grabbed and pulled out and reused every idea and mechanic from War of the Ring and manufactured, released, marketed, and sold a print board game with all the same ideas and mechanics, but simply replaced the copyrightable elements? Would that be infringement of any kind?

• If a person grabbed and pulled out and reused every idea and mechanic from War of the Ring and coded, marketed and sold a video game with all the same ideas and mechanics albeit translated into programming code of course, but simply replaced the copyrightable elements? Would that be infringement of any kind?

I believe I meant it as possessive of members of the public, but it also makes sense as referencing the elements.




Preface: the practical problem becomes where to draw the line between "idea" and "expression." These are words we copyright lawyers like to toss around (like "mechanics" vs. "theme" in board gaming), but where exactly the border resides is sometimes hard to find. "Simply replaced the copyrightable elements" hand-waves over the difficulty inherent to performing such a conversion.

That said, assuming no patents are involved, then there would be no copyright infringement. From a copyright perspective ideas (and mechanics, which are treated as ideas) are in the public domain from day one.

Said another way, and again setting aside the possibility of patent, you and I affirmatively own the ideas of every game designer as soon as that idea comes into being. From a copyright perspective, it's ours just as much as it is the game designer's.

Now, people can argue morals, ethics, and other philosophies, and come up with a straight-faced argument for why such action should be disapproved. Additionally some designers or publishers might be seriously bothered by the actions you describe.

There are multiple perspectives on copyright (romantic author, utilitarian, market creation, etc..) and I'll discuss them in the full copyright series. I freely admit I am strongly biased towards utilitarianism, and will discuss why in due course. For now, just looking at the black letter copyright law, what you describe is not only legal but encouraged under the law.




My answer to this question is the same as above.

- Neil Wehneman

So why does Hasbro license games from game designers? They must have lawyers that give different council.

Because it's often cheaper and easier to do a license than it is to argue that no license is needed.

Additionally, the license will cover trademark questions as well, which are under a separate set of rules (which will be discussed in due time).

Beyond the law itself, there are social norms involved. Most individuals (heck, even most lawyers who don't practice in an IP field) are not familiar with the nitty-gritty of copyright law, especially as it's often over-simplified into a (flawed) property analogy.

Here's another way of looking at it...

I cannot imagine "Hasbro relies on Fair Use and idea-expression dichotomy to publish designer's game without designer's consent or royalty" showing up on a CNN.com headline. However, I could see "Hasbro steals designer's game for profit" as a CNN.com headline to cover the exact same activity.

Hasbro (and others) are aware of both the law and perceptions in the marketplace. They consider it better for all parties if some sort of license is in place, and that's a fair conclusion to come to. Indeed, I've previously told clients "Your activity likely falls under L&E, and no license should be required, but I still think you'd be ahead to negotiate some sort of license to keep everyone happy and on the same page."


Make sense?

Edit / Postscript: I'll add that ANOTHER reason for Hasbro (or whomever) to do a licenses is because the boundary between idea and expression (or mechanic and theme) is oftentimes difficult to pinpoint exactly. The limits of Fair Use are likewise amorphous. A license is generally the safest (and often the most cost-effective) way of making these difficult questions go away.

There is no arguing if the law is clear. There is only arguing if the parties differ on what they think will happen if the case were tried in the court of law.

I understand trademark law. Very few game designers file for a trademark (and as you're aware, trademarks do not cover games that are not in commerce). Anyhow, Hasbro usually comes up with their own game names.

The share holders of Hasbro are probably not concerned with social norms. They want the maximize their investment. Furthermore, I think you can be sure their lawyers know the nitty-gritty of copyright law.

Yes, I've always maintained that bad press is one of the factors that contributes to our industry dynamics, but I think you are over-simplifying the judicial system. The law is not static. Laws are often re-interpreted in order to pertain to new cases that arise. There are also a lot of gray areas in between the black and white cases. Hasbro's lawyers (as well as many of the lawyers that we have consulted) think there is good reason to believe that a game designer would win in a case where a publisher stole their game in its entirety.

In fact, that is what is generally considered to be one of the black and white cases.

Any serious economist understands the perils our industry would be under without IP laws. If their opinions could not sway the courts, then 10 years of stifled creativity in the industry would finally tip the scales.

Yes! This is a very important factor in our industry dynamics. Your telling people otherwise does a disservice to our industry.

The day that it becomes ok for a publisher to take a game in its entirety (every mechanic) and publish it under their own name, is the day that every full time game designer will have to start thinking about another profession.

{in regards to IP laws} The point is to strike the right balance.

Here is where your confusion lies. In game design, the mixture of game mechanics IS the expression. So you are right, I do not understand your distinction on mechanics versus expression. Please explain the distinction when it comes to an abstract game like Blokus or Pentago.

Exactly.

A monopoly is given for a specified amount of time in exchange for making an idea public. The monopoly is given to encourage innovation. The idea is made public to benefit society.

Your belief that game mechanics in their entirety are not protected demonstrates a lack of balance.

(b) 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.

Copyright does not protect the idea for a game ... or the method or methods for playing it. Nor does copyright protect any idea, system, method, device ... involved in ... 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.

This doctrine of merger is particularly applicable with respect to games "since they consist of abstract rules and play ideas." Midway Mfg. Co. v. Bandai-America, Inc., 546 F.Supp. 125, 148 (D.N.J.1982); see also Anti-Monopoly, Inc. v. General Mills Fun Group, 611 F.2d 296, 300 n. 1. (9th Cir.1979). A similar logic has been applied to rules of a contest where most subsequent expressions of an idea of a rule are likely to appear similar to the words of a related rule. See Morrissey v. Procter & Gamble Co., 379 F.2d 675, 678-79 (1st Cir.1967); Affiliated Hospital Products, Inc. v. Merdel Game Mfg. Co., 513 F.2d 1183, 1188-89 (2nd Cir.1975). ... Thus, the doctrine of merger applies and although [plaintiff] may be entitled to copyright protection for the physical form of his games, he is not afforded protection for the premises or ideas underlying those games.

It is also contrary to the opinions of several lawyers I consulted on the issue.

What is to motivate a person to design a game if everyone of their game mechanics could be lifted and placed into a different game? Knizia (as well as myself) would be in a world of hurt if your beliefs were to hold true in the court of law.

I disagree with you on the utilitarian argument, but I haven't been arguing on the basis of utility. I've been arguing on the basis of the text of the law.

I have to agree with Neil on this one. I think it is normal to be emotionally attached to your creation which resulted in hard work, However in the end this type of law is free of those concerns.