Game Design and Copyright

Today I read a very interesting thread about copyright and intellectual property when it comes to games.

I had often wondered how original an idea had to be, and why so many games had similar mechanics.

There was no doubt that artwork, names, and printed material could be protected by copyright. But when it comes to an idea or a concept, the rules seem a lot more complicated.

BEFORE I START: Let me say I am not a lawyer and that nothing I say here should be taken as legal advice.

When it comes to commercial software, there are only a limited number of ways you can write an accounting software package (or word processor, or any other genre of business software).

It makes sense to me that while the design of a spreadsheet or a word processor can be protected in some way, there must be some provisions for others to make competitive products. Without this, there would not be a chance for Lotus 123 and Microsoft Excel, or Word and WordPress to exist at the same time. Throughout history, there are plenty of examples – and each case the best version seems to win market share.

In much the same way, a game mechanic would also be considered an idea or a concept.

Copyright

As I have already explained, I am not a lawyer. But with that said, it turns out that US law is quite clear about the copyright of games. In fact, the law specifically says:

Copyright does not protect the idea for a game, its name or title, or the method or methods for playing it. Nor does copyright protect any idea, system, method, device, or trademark material involved in developing, merchandising, or 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.

The same does not apply to game artwork or the written rules included with a game.

The artwork is definitely protected by copyright law. This includes the game board, the packaging, playing cards, original characters, and other components. Unless the art has come from the public domain (eg NASA photos), you can’t take someone else’s art and use it in your own game (even if the game is completely different).

The rulebook can be rewritten or reimagined – but copying verbatim can also be considered a copyright breach.

Trademark

Games can also be protected with Trademarks and Patents.

Most people will know what a trademark is.

A trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others.

Some example trademarks are Marvel, Star Wars, and Pokemon. Trademarks don’t have to cover an entire game franchise – they can also be used on individual items. For example, MTG Mana and Tap symbols are trademarks of Wizards of the Coast. A trademark can also apply to the name of a game. An example of this is the game called Magic the Gathering.

A registered Trademarks expires after 10 years but continues to remain valid for as long as it is still being used after the expiry date. An unregistered trademark can also be defended for as long as you continue to use it with no initial expiry term.

Patent

A patent is an entirely different matter. When it comes to gameplay, a patent protects inventions and, in some cases, protects the mechanics of a game.

While copyrights and trademarks don’t need to be registered, a patent needs to be registered within one year of the public being given the chance to know about it.

A patent also expires after 20 years (from the date of filing)

Normally a patent doesn’t need to protect an entire game. By protecting a few key functions or mechanics of the gameplay, it makes it impossible for others to create a competing game.

In the case of Scrabble, the patent covers the “board printing mechanics used in Scrabble for scoring”. Scrabble can’t be copied unless you change the way the scoring works.

In the case of the game Magic the Gathering, several patents apply. By using multiple patents, the claims effectively describe the entire game making it impossible to use the mechanics without breaking the law.

Before closing this blog post, I reiterate that I am not a lawyer or attorney and that nothing I say should be taken as legal advice. However, one bit of advice I can give you is to contact an attorney or lawyer if you are concerned about copyright, trademarks, and patents. They are best qualified to give you the advice that you may need.