Meeple Mountain - April 1 2022
The laws involved in protecting board games are complicated. Various websites, forums, and Reddit threads attempt to answer questions from game designers on what they are allowed to do when designing their games, as well as how to protect certain aspects of their games.
One common question from game designers is how can they prevent third parties from stealing their games? This is a legitimate and viable question because a game designer typically introduces their game designs into a public forum to solicit feedback, which may be implemented into the end-product. The first instinct when designing a game is to share your design with as many people as possible. Have the community of players and designers tear apart your game so that you gather valuable input to implement and make the end-product as polished as possible. With this kind of development process, the question arises: “What prevents someone from just stealing my game?”
This is where having a basic understanding of Intellectual Property (IP) law is helpful.
To date, there does not appear to be a simplified online guide, authored by an attorney, which explains intellectual property law as it relates to board games. Nevertheless, to be clear, this article is not providing legal advice. The goal of this article is to provide game designers with an easy-to-understand guide to (IP) law, which is mostly federally regulated. It is laid out in three sections:
- What legal protections are possible?
- What legal protections are practical?
- What is typically done?
Section 1: What Legal Protections Are Possible?
Different subreddits (i.e. r/legaladvice and r/boardgames) and other various websites frequently confuse the various types of intellectual property protection. So, let’s begin with the basics.
IP is a category of property that includes intangible property of the human brain, or in short, one’s ideas. Inventions, poetry, movies, brand names and logos, and many other “creations of the mind” are captured under IP.
IP tends to be divided into four main sub-categories: 1) patents; 2) copyright; 3) trademark; and 4) trade secrets. This article will cover the first three of these with regard to US IP laws only. It will not discuss trade secrets, since board games rarely, if ever, concern proprietary information that is vital to the publishers’ or companies’ survival.
Patents
A patent gives its owner the legal right to exclude others from making, using, or selling the patented invention. In summary, this means that the patent owner has the right to sue and/or seek judicial orders to compel other people to stop if they are recreating their invention as specified in the patent. The mechanics and components of a game may be patented if it meets four requirements of patentability: 1) It has to be “patentable subject matter” (in the United States these are processes, machines, manufactures, and compositions of matter) 1; 2) It has to have utility (i.e. it has to be useful); 3) it has to be novel and 4) It has to be nonobvious. The final two requirements are demanding, as it means that no one can have previously invented the same thing and either patented or made it public, and that the invention is not obvious to an ordinarily-skilled person.
Compared to the other categories of IP, the legal standards for obtaining a patent are very strict. A person must apply for a patent with the United States Patent and Trademark Office (“USPTO”), and, if granted, the patent can last for up to 20 years from the date of application. Some notable games that have been patented include Monopoly 2, Magic: The Gathering 3, Life 4, Battleship 5, and Scrabble 6. Design patents are also a way to protect the ornamental aspects of a game, such as the shape and color of playing pieces, so long as they are not functional or do not serve a utility in the game.
Copyright
Copyright law protects original works of authorship and takes effect as soon as a work is “fixed” in a tangible medium of expression. A tangible medium of expression could be, for example, a writing of the work, a drawing on a canvas or a digital screen, a sculpture, etc. As applied to games, a tangible medium of expression includes things like illustrations, artwork, and visual appearance of a game. It also includes any expressive text that is incorporated onto the cards, board, etc., or the rulebook.
Trademarks
Trademarks are words, symbols, and devices that indicate a source of origin for a good or service 7. They distinguish the products of one seller from others in the marketplace. Federal registration with the USPTO is not necessary to confer protection since trademark rights begin to accrue as soon as the mark is used in commerce. Nevertheless, there are many advantages to registering a trademark. These include a public record of ownership, constructive notice (i.e. would-be infringers are presumed to have known of the existence of your trademark), and a number of legal presumptions that make prevailing in a lawsuit for trademark infringement significantly less expensive.
Stay tuned for Part 2 coming soon.
This article originally appeared on Meeple Mountain.
- https://www.uspto.gov/web/offices/pac/mpep/s2106.html
- United States Patent No. 2,026,082 (filed Aug. 31, 1935).
- United States Patent No. 5,662,332.
- United States Patent No. 56,561.
- United States Patent No. 1,998,301.
- United States Patent No. 2,752,158.
- 15 U.S.C. § 1127. Nontraditional marks, including colors, sounds, or smells, are eligible for trademark protection if they indicate a source of origin.
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