Mountain Meeple – April 1, 2022
The laws involved in protecting board games are complicated. Various websites, forums, and Reddit threads attempt to answer game designers’ questions about what they’re allowed to do when designing their games, as well as how to protect certain aspects of their games.
A common question from game designers is how do you prevent third parties from stealing their games? This is a legitimate and viable question because a game designer usually presents their game designs in a public forum to solicit feedback, which can be implemented in the final product. The first instinct when designing a game is to share your design with as many people as possible. Ask the gaming and design community to tear down your game to gather valuable information to implement and make the final product as polished as possible. With this kind of development process, the question arises, “What’s stopping someone from just stealing my game?”
This is where having a basic understanding of intellectual property (IP) law comes in handy.
To date, there does not appear to be a simplified online guide, written by a lawyer, that explains intellectual property law as it relates to board games. However, to be clear, this article does not provide legal advice. The purpose of this article is to provide game designers with an easy-to-understand guide to the law (IP), which is primarily regulated at the federal level. It is organized into three sections:
- What are the possible legal protections?
- What are the practical legal protections?
- What do we generally do?
Section 1: What legal protections are possible?
Different subreddits (i.e. r/legaladvice and r/boardgames) and other different websites frequently confuse different types of IP protection. So, let’s start with the basics.
Intellectual property is a category of property that includes the intangible property of the human brain, or in short, its ideas. Inventions, poetry, movies, brand names and logos, and many other “creations of the mind” are captured under intellectual property.
Intellectual property 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 them as they relate to US intellectual property laws only. It won’t deal with trade secrets, because board games rarely, if ever, involve proprietary information vital to the survival of publishers or businesses.
A patent gives its owner the legal right to prohibit others from making, using or selling the patented invention. In summary, this means that the patent holder has the right to sue and/or seek court orders to compel others to stop if they recreate their invention as specified in the patent. Game mechanics and components can be patented if they meet four conditions for patentability: 1) It must be “patentable subject matter” (in the US it is processes, machines, manufactures and compositions of matter) 1; 2) It must have utility (that is, it must be useful); 3) it must be new and 4) It must be non-obvious. The last two requirements are demanding, because it means that no one can have invented the same thing before and either patent it or make it public, and the invention is not obvious to a normally qualified person.
Compared to other categories of intellectual property, 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 the request. Some notable games that have been patented include Monopoly 2Magic: The Gathering 3Life 4Battleship 5and Scrabble 6. Design patents are also a way to protect ornamental aspects of a game, such as the shape and color of game pieces, as long as they are not functional or serve any in-game utility.
Copyright law protects the original works of the author and takes effect as soon as a work is “fixed” in a tangible medium of expression. A tangible means of expression could be, for example, a writing of the work, a drawing on a canvas or a digital screen, a sculpture, etc. Applied to games, a tangible medium includes such things as artwork, illustrations and the visual appearance of a game. It also includes any expressive text incorporated on the cards, board, etc., or the rulebook.
Trademarks are words, symbols and devices that indicate a source of origin for a good or service 7. They distinguish a seller’s products from others in the market. Federal registration with the USPTO is not required to confer protection since trademark rights begin to accrue as soon as the mark is used in commerce. Nevertheless, registering a trademark has many advantages. These include a public register of ownership, implied notice (i.e. potential infringers are presumed to have known of the existence of your mark), and a number of legal presumptions which make it significantly cheaper to prevail in a lawsuit for trademark infringement.
Stay tuned for part 2 coming soon.
This article originally appeared on Meeple Mountain.
- U.S. Patent No. 2,026,082 (filed August 31, 1935).
- US Patent No. 5,662,332.
- US Patent No. 56,561.
- US Patent No. 1,998,301.
- US Patent No. 2,752,158.
- 15 USC § 1127. Non-traditional marks, including colors, sounds, or smells, are eligible for trademark protection if they indicate a source of origin.