Pierre Rebstock
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Just saw that a boardgame based on the Swarm was listed in the "Hotness" on the left. I'm surprised to see that's happened as i believed (perhaps wrongly) that book to be a bit on the obscure side. After checking it's got, among other things, a Wikipedia page, a boardgame (published by Z-man) and an upcoming movie so my bad.

Anyhow it got me thinking about how one gets about obtaining the rights for a boardgame. Let's say you've just seen an awesome movie/read a book/seen a show and something clicked. After some feverish weeks, you've come up with a prototype. It's playing well, playtesting helped ironed out some kinks and you're ready to start the long harduous road of getting your game published. Now we have to assume that the theme you've chosen is completely vital to the game i.e. there is no way to really "get" the game without that specific theme and/or references which are copyrighted.

What's the best approach?
1) Do you contact whoever owns the rights and pitch your great idea to them before submitting to potential publishers? Can't ever see that happening, especially if
2) You pitch your idea to publishers, knowing that your chances are slim without the link to your chosen theme, warning the publishers that rights would have to be secured before going any further ... and end up in the "too hard" basket. So many games around, why bother with that, right?
3) Release the game on the net and wait for the "cease and desist" letter from the lawyers. Although if the game is that good, this could open doors
4) Dream of being a well known game designer whose publisher is ready to take all the steps described in 2)
5) Stop being negative and extract the game from its theme and pitch
6) Stop being optimistic, chuck your game out and get back to the daily grind in cubicle hell
7) Just play the game with your friends and never know the uber-fame of being published

I see countless of movie adaptations being made into games and videogames, and tbh most of them are really bad. Is it the other way around? Companies who own some copyrights go out there and recruit designers to made something somehow relevant to said rights and cash in on an emerging franchise or fast-fading fad?

Soooooo many questions, so little time....

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Hunter Shelburne
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I won't be much help for the copyright part, but the reason The Swarm is so high is because it was the Tanga deal of the day a couple days ago.
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Bernd Weber
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Some facts about the making of the Swarm boardgame can be read here in German: http://www.reich-der-spiele.com/specials/Der-Schwarm-Kramer. In short (only the copyright part): Kosmos had the rights and asked Wolfgang Kramer and Michael Kiesling to make a Swarm game.
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Walt
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Unless you were quoting sections of the book, trademark ("The Swarm") would be more of an issue than copyright. But generally, a game company will pay the intellectual property (IP) owner for the right to make a game of the property, usually for a few years. Then since they've paid a lot, they'll generally hire an established designer, like Reiner Knizia for Beowulf: The Movie Board Game or Martin Wallace for Railways of the World.

You could design a game based on someone else's IP, but this would be more a problem than a solution. If you had bought the rights, the publisher might feel you were getting into his business too much, and he might have a completely different idea about what property or theme would sell well. If you didn't have the rights, the publisher would worry that getting them might consume to much time and money, but a re-theme might get traced back to the original design, which was done without the rights.

The basic rule is that mechanics are the designer's responsibility and theme is the publisher's responsibility.
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Philip Migas
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For the record, you are discussing Intellectual Property (IP) licensing, not copyright. A new board game based on a movie, book or video game needs permission to use IP elements such as themes, characters from the alternate media. The copyright for the new game is created by the game designer and may be maintained by the designer (depending on contract).

I have been doing some playtesting for a publishing company that has acquired some IP licensing. They seem to get the licensing of the IP before requesting proposals for game designs. The game design and development process goes very fast when dealing with IP. I think this is so the publisher can retain its IP licensing for as long as possible. The break neck design pace may contribute to the sub-par products being put out. High expectations for certain IP may contribute to products being consider sub-par.

My personal recommendation is to ignore designing to IP if you are a new designer. A new designer should develop their game design skills and network. Be helpful, knowledgeable and courteous to as many publishers as possible. Get a game published. Then, you never know what opportunities may develop.
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Kevin B. Smith
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pmigas wrote:
For the record, you are discussing Intellectual Property (IP) licensing, not copyright.

Gah. IP is a (misleading) generic term that encompasses copyright, trademark, patent, trade secrets, and probably other stuff.

In this case, you would be licensing at least the trademark(s) (Movie/book title, character names, logos), and the copyright(s) (images for sure, arguably traits of the world and characters).

Then you would have your own copyrights and trademarks on the derivative works you created.
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Neil Wehneman
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peakhope wrote:
pmigas wrote:
For the record, you are discussing Intellectual Property (IP) licensing, not copyright.

Gah. IP is a (misleading) generic term that encompasses copyright, trademark, patent, trade secrets, and probably other stuff.



I absolutely agree. There are two circumstances in which the phrase "intellectual property" is used.

One circumstance is acceptable shorthand. The other circumstance is bad, bad, bad.

The first circumstance is as a shorthand for a general legal practice area. My GeekBadge (currently) says "IP Lawyer" and my business cards include the phrase "intellectual property" in describing what areas of the law I practice in.

On the GeekBadge and business card, it's impracticable to write "Copyright, Trademark, Patent, Trade Secret, and Right of Publicity Lawyer". Accordingly "Intellectual Property Lawyer" is acceptable to convey the same general idea.


The second (bad, bad, bad) circumstance is to use "intellectual property" to discuss specific legal rights and the law itself. These five areas of the law have differing rules that are often inconsistent with each other.

Referring to them as "intellectual property" instead of by the actual names of "copyright", "trademark", etc. just causes confusion.

- Neil Wehneman
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Walt
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landaras wrote:
"Copyright, Trademark, Patent, Trade Secret, and Right of Publicity Lawyer".

Actually, that sounds kind of cool, maybe in a 19th century sort of way.

landaras wrote:
The second (bad, bad, bad) circumstance is to use "intellectual property" to discuss specific legal rights and the law itself. These five areas of the law have differing rules that are often inconsistent with each other.

Referring to them as "intellectual property" instead of by the actual names of "copyright", "trademark", etc. just causes confusion.

I do agree with this, despite talking about IP generally above. I do know the difference, although IANAL; but I was not talking about a specific right, and as I'm sure you know, additional IP rights are possible internationally, such as "Moral Rights" to control artists' expressions aside from TM or Copr. or "Trade Dress" aside from actual TM.

Fair?
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Philip Migas
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landaras wrote:

Referring to them as "intellectual property" instead of by the actual names of "copyright", "trademark", etc. just causes confusion.


OK so what should I have called it? Lets say we want to design a game about werewolves and we are using the Twilight setting for the Game. I need to have specific licensing to be able to design a game around Twilight. I don’t need copyright licensees, because I am making my own artwork, game mechanics, rule books, etc. So I may need a relief from Trademark infringement. But it really is using the theme and feel of the Twilight Universe. So what should I call it?
 
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Kevin B. Smith
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pmigas wrote:
landaras wrote:

Referring to them as "intellectual property" instead of by the actual names of "copyright", "trademark", etc. just causes confusion.


OK so what should I have called it?

My concern was that you said:
Quote:
For the record, you are discussing Intellectual Property (IP) licensing, not copyright.

It sounded like you were saying it was *not* a copyright question, which was incorrect. Perhaps you meant something like "You are discussing a collection of IP topics, not just copyright", which I would have agreed with.
 
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Philip Migas
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peakhope wrote:
pmigas wrote:
landaras wrote:

Referring to them as "intellectual property" instead of by the actual names of "copyright", "trademark", etc. just causes confusion.


OK so what should I have called it?

My concern was that you said:
Quote:
For the record, you are discussing Intellectual Property (IP) licensing, not copyright.

It sounded like you were saying it was *not* a copyright question, which was incorrect. Perhaps you meant something like "You are discussing a collection of IP topics, not just copyright", which I would have agreed with.


Ok so I am still not convinced that this is a copyright issue at all, but it is definitely more than just “copyright”. I still don’t know what I should call it. What would you call it?
 
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pmigas wrote:
Ok so I am still not convinced that this is a copyright issue at all, but it is definitely more than just “copyright”. I still don’t know what I should call it. What would you call it?

I am not a lawyer. Don't trust anything I say.

Let's get specific. Maybe use Batman as an example? The name "Batman" would presumably be a trademark. The bat logo would also be trademarked. Obviously any photos or drawings from any official comics or movies would be copyrighted. Any word-for-word dialog, printed or spoken, would be copyrighted. I suspect you already knew that, so let's move to the grayer areas...

The concept of a guy dressed up in a suit with bat-like ears, using lots of high-tech equipment would, at least in some cases, be considered copyrighted. Certain storylines would, in some cases, be considered copyrighted, where even if you didn't use any of their exact wordings, you might still be infringing. Here is a random non-trustworthy web article kind of saying what I'm saying:
http://www.ehow.com/how_6763668_copyright-story-characters.h...

So to answer your question, I think it really is mostly a copyright issue, with a bit of trademark spice thrown in.

Just my opinion. Perhaps someone who actually knows what they are talking about will help us out. I haven't read the pinned copyright posts here on BGG recently. If you haven't, you probably should. Maybe the answers are there.
 
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pmigas wrote:
Ok so I am still not convinced that this is a copyright issue at all, but it is definitely more than just “copyright”. I still don’t know what I should call it. What would you call it?

I'm not sure which Twilight Universe you refer to, but in some medium (comics, books, video game) the look and feel of that universe was expressed. That expression is copyrighted. If you want to derive something from that expression, then that would be a derivative work (copyright). This could also get into trade dress and trademark issues, even if there are no trademarks registered.

For example, TSR tried to trademark "hobbit," which was, of course, invented by JRR Tolkien. The Tolkien estate took TSR to court, and they became "halflings." I'm sure landaras can give a more technically correct explanation, but essentially the author gets first chance to exploit their copyright into other trade areas, and registration of a trademark is not necessary if it's distinctive enough (and maybe in other cases).

You might want to read Copyright Basics:
http://www.copyright.gov/circs/circ01.pdf
 
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Neil Wehneman
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pmigas wrote:
For the record, you are discussing Intellectual Property (IP) licensing, not copyright. A new board game based on a movie, book or video game needs permission to use IP elements such as themes, characters from the alternate media. The copyright for the new game is created by the game designer and may be maintained by the designer (depending on contract).


This is where you went slightly awry.

"IP Licensing" is a recognized area of practice. Indeed, one of the classes I took back in law school was called "IP Licensing." This is an example of the first situation of using the phrase "intellectual property" to encompass copyright, trademark, patent, trade secret, and right of publicity.

However, at its core you are still dealing with (in these circumstances) copyright and trademark. You need to use the names in order to understand what's going on.

"IP Licensing" is very much a copyright or trademark issue, and stating that it's not is where you went slightly off course.


Copyright

Theme and characters are, to an extent, protected by copyright. If the particular theme includes creative elements that are "original works of authorship fixed in a tangible medium of expression", then those elements are protected by copyright.

Commonplace elements within a theme are not protectable, under the scenes a faire doctrine. Characters which have been specifically delineated over time can be protected, independent of the film or other work in which they appear. See MGM v. Honda (ruling that use of a James Bond-esque character in a car commercial infringed copyright). Ideas within the theme that are ideas and not creative expression are not protectable. (This is the idea-expression dichotomy, and the boundary is often fuzzy.)

Even assuming that a particular element falls within copyright generally, there remains Fair Use. A Fair Use is, by definition, not a copyright infringement. There are multiple factors that go into Fair Use, but the transformative nature of the new work and the (lack of) effect upon the market for the old work both cut in favor of Fair Use. The converse is also true.


Trademark

Trademark protects any mark, symbol, or device that is used to designate that the goods or services bearing that mark originate from a single source, even if that source is anonymous relative to the public. Although source generally refers to production source, it can also refer to endorsement source.

Traditionally, trademark protects brand names. However, the color brown on a delivery truck is a trademark of UPS (because the public associates that color as signifying source) as is the three tone chime Intel plays at the end of their commercials.

Given copyright's (near-)exclusivity over its creative elements, it is arguable that copyrighted material itself per se functions as a trademark. If you see Captain Kirk on a product, you generally assume that Paramount Pictures had something to do with Captain Kirk showing up there (i.e. Captain Kirk also serves to signify source of either production or endorsement).

In a unanimous decision, the United States Supreme Court held in Dastar v. Fox that once the copyright expires in a work, the name of the work can no longer function as a trademark, as every member of the public has the right to copy the work without attribution at that point. (There's a bit more nuance to the decision than that, but I'd have to delve into a lot more discussion to do it justice.)

Dastar did not address Fair Use. However, as a Fair Use is, by definition, not a copyright infringement, it is a right held by the public from day one of the work's life. A good argument can be put forth that a Fair Use is similarly "immune" from a trademark claim.


Licensing

So what's an "IP License"? An "IP License" is merely a gift or an agreement that allows another to engage in acts that would normally be prohibited under copyright, trademark, patent, trade secret, or right of publicity.

Now, general principles of contract law will govern whether the gift or agreement is binding, and how the words chosen will be interpreted and enforced by a court if the parties later disagree. However, at its heart a license deals with the relevant copyright or trademark (or whatever) law, as you have to understand the initial rights of the parties in order to understand what rights are being waived or exchanged!

Now, you shared some personal experience, which is valuable in figuring out how and when such agreements are reached by at least some actors in the industry. But the law continues to operate in the background, and if a license is not reached (or if general contract law states that the license is defective), then the copyright or trademark law will step in to state the rights of the parties and the remedies for breach of those rights.

- Neil Wehneman

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Walt
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landaras wrote:
Traditionally, trademark protects ... the three tone chime Intel plays at the end of their commercials.

Just to avoid confusion, Intel is a bit more than three tones. It is not embeddable, but is here:
http://www.youtube.com/watch?v=QRLyMjvug1M

The classic three tone TM is NBC:
 
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Neil Wehneman
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Tall_Walt wrote:
landaras wrote:
Traditionally, trademark protects ... the three tone chime Intel plays at the end of their commercials.

Just to avoid confusion, Intel is a bit more than three tones. It is not embeddable, but is here:
http://www.youtube.com/watch?v=QRLyMjvug1M

The classic three tone TM is NBC:


Doh! I miscounted in my head. Intel has four chimes.

Good catch.

- Neil Wehneman
 
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landaras wrote:
Doh! I miscounted in my head. Intel has four chimes.

Considering your first word here, it's ironic that when I hear the Intel four notes, I always add the Homer Simpson Doh! to the end because they had a commercial with Homer in it once long ago.
http://www.youtube.com/watch?v=w6qMWEp-APQ
 
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