Friday, October 19, 2012

Legal Issues in Gaming: Copyrighting Games

Gaming has always had a strange relationship with the law. Most gamers get exposed to the intersection by hearing about a lawsuit involving a game company or some website takedown of potentially infringing content. Certain developments within the tabletop gaming community in the past decade have created a general consensus within the community as to what the law is regarding gaming and how it can be applied. However, that consensus has a significant array of errors, falsities, and critical misunderstandings. I thought it would be relevant to address some of the relevant aspects of intellectual property law in the United States so as to help correct some of those misunderstandings.

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. 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.
Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works.
17 USC §102(a). 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. In the context of tabletop gaming, the 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 the Law of Gaming for almost 80 years

Parker Brothers Monopoly! One of the most
 notorious games in the history of gaming law.
Sorry. Everything is
copyrighted. Or is it?
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 complicated. 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 distinctive playing pieces, art on the box, and other artistic components. Even 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? This is the question that is most important in considering gaming issues in law. If it is possible to protect the rules of the game, 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. If somebody were to reproduce and distribute the rulebook without permission, they would be in violation of the owner's copyright (which, in the case of Monopoly, is Hasbro, Inc.).

When looking at it under a bare reading of the copyright law, it would appear that almost everything that is Monopoly is protected under copyright. To a certain extent, a majority of the content in the game is protected is some way or another. However, section 102 has some additional language worth considering.
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 what these different concepts mean within the context of copyright law, but it is clear that there are a series of things that are specifically exempted from copyright protection. Among these exemptions are ideas, procedures, processes, systems, and methods of operation. Although courts may argue as to which exemption would apply (or, ignore the specifics altogether), the consensus is that the rules of a game like Monopoly fall under the exemptions to copyright.
No copyrighted images or sculptures... Is it okay?
So what does this mean? If a person made a board game that was systemically identical to Monopoly but changed the artistic expressions (i.e. new art, images, names, tokens, and rulebook), would the owner of the copyright 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. As non-copyrightable expression, the fundamental element of the game falls outside of the legal protections of copyright.

Moving Beyond 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. A game designer interested in protecting the specific system or rules of the game would have to look elsewhere in intellectual property law. In the future, I will address some of these other legal structures and how they apply to gaming.

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). Recommended listening: Episode 16 of the Law of the Geek podcast, available at

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