Can you copyright a board game? If a game has been patented for more than 20 years, is it legal to use the card mechanics? Is it still covered by intellectual property? What protections do board games have? What can I do to protect my game designs?
In this article, we attempt to answer these questions and discuss other intellectual property issues when it comes to board games and their mechanics.
Disclosure: We Are NOT Lawyers. While we did our due diligence before tackling this topic and tried to provide a good overview of legal protections in board gaming, please do not take anything in this article as legal advice.
Looking at intellectual property protections when it comes to board games.
Before you read another word, I’m going to reiterate this: I am not a lawyer. I do not have any legal background or training. While the information in this article is carefully researched from credible sources, nothing said here should be taken as legal advice. While I may have played a lawyer once in an RPG, I haven’t even taken a single law class.
This topic comes from a question we were asked by Abe Blum, who wrote:
Hi. Thanks for being available for help. If a game has been patented for more than 20 years, is it legal to use the card mechanics? Is it still covered by intellectual property? Regarding card mechanics, if a game is played with numbers, shapes and colors and the goal of the game is to collect matches, can I still play this exact game if I change the numbers, or shapes or colors to a different factor, such as size?
While this question is asking specifically about which parts of existing board games you might freely use, I want to expand on that to talk about what rights and protections board game designs and mechanics have and what you can do to protect your game as a designer, and probably way more importantly, what you should or shouldn’t do, as what is legal isn’t always necessarily what is right.
This topic is something that I see come up time and time again online, on forums, on BoardGameGeek, on social media, and even at local gaming events. Just last week it came up at a local ProtoWIN Game Design night that I was hosting.
Game designers are worried about people stealing their ideas, while also simultaneously wondering what ideas they are free to use from existing games. It’s a very common conversation I hear from people considering making their own games, and the one constant in every one of these conversations is that there is a lot of confusion regarding what is and is not protected in the realm of tabletop gaming.
My goal with this article is to do what I can to clear up some of that confusion (though remember, no lawyers here).
Sean and I originally discussed this topic back on Episode 160 of The Tabletop Bellhop Gaming Podcast, Patents, Copyright and Trademarks, Oh My!, and you may want to check that out for more of a back and forth discussion. This article is me trying to organize and streamline that conversation and make it more actionable.
Board Game Mechanics Cannot be Protected
The first thing to learn about Intellectual Property (IP) protections in the tabletop space is that mechanics (or mechanisms if you prefer) basically cannot be protected. Yes, you read that right.
You are free to use the mechanics from any game ever published in your own game, even if you intend to sell it. Similarly, anyone can take the mechanics in your game and use them in their own game. This is the reason you see so many versions and variations of popular games.
The fact that many variations of Monopoly are being published is one of the most obvious examples. There are the official Hasbro versions along with other (sometimes big name) companies putting out their own versions. We’ve covered a lot of games here from The Op. That’s short for USAopoly, a name that exists because they started off as a company that sold uniquely themed versions of Monopoly. On the other side of the same coin, I think every gift shop in every town in the world has a version of Smalltownopoly.
Now, while this is true today it wasn’t always the case. Monopoly was in fact patented and protected from 1935 to 1952, at which time the term of its patent expired. For another more modern example, not so long ago, back in 1994, Wizards of the Coast patented Magic: The Gathering‘s process of a “Trading card game method of play”. That patent expired in 2014.
So one of the things you need to understand is that while mechanics can’t be protected, the specific combination of mechanics and the wording of how those mechanics are explained in a specific game can be protected through the use of patents (more about those down below). This is where the ridiculous situation where no one else could call turning a card 90 degrees “tapping” came up for a while there.
What all this means is that, legally, you can pretty much copy an entire game, you just can’t copy the exact wording used to explain that game.
This is why whenever a game comes up with a new mechanic or a new way of doing things, it’s usually followed up by a bunch of other games by other designers using that same mechanic. Sometimes they use it in brilliant new ways and other times they just reuse it exactly as originally presented, and both are fair game.
I think deck-building is the best modern example of this, with Dominion really taking the market by storm (yes, I know StarCraft did it first), and that being followed by wave after wave of new deckbuilding games. Think of games like Star Realms, Clank!, and Tanto Cuore. Each of these games does something new and interesting using the same core mechanic.
As an example of this from the real world: A few years back, a company made a card for card copy of 7 Wonders where all they did was change the names and artwork on the cards. This was produced for promotional purposes with only 2000 copies ever made, and it was never available for sale. There was no acknowledgement or indication that it was based on another game, with no credit given to the people who worked on 7 Wonders. This was all perfectly legal.
The real question to be asked is should they have done it?
Well, the gaming community came down really hard on the company in question. It now takes quite the deep dive on the net to even find reference to the 7 Wonders scandal. What they did, from a legal standpoint, was fine, but it was not taken to kindly by the gaming industry as a whole.
That’s because lurking behind the legal issues around game protection, you’ll often find the harsh court of public opinion. Plagiarism is something taken very seriously, especially in this industry. Being called out for such actions can, at best, draw significant negative attention to your work, and at worst, lead to an inability to get your product to market at all.
For an example of an issue where literally no laws were broken and yet a game was brought to its knees by the gaming public, feel free to look into the 2019 release of Alien: USCSS Nostromo by Wonderdice and the claims of plagiarism by François Bachelart.
Copyright and Trademarks for Board Games
Again, please remember, if you actually have questions about the law, seek a lawyer.
To quote the American Bar Association: “Board games occupy a nexus of the three primary forms of intellectual property protection—copyright, trademark, and patent.”
Copyright is a form of protection provided by the law for “original works of authorship”, allowing the holder to be the only person able to copy, distribute or otherwise share a work under the law. The distinction between Ideas and Expressions is a key concept one needs to grasp for copyright.
For instance, “Roll 2 dice and move your piece” is not a copyrightable expression. But the specific wording of the rules governing (expressing) that mechanism in a game, when set down in a rulebook, are copyrightable, just as the words to a novel are. No matter how intricate and convoluted you wish to make your game, it is unlikely that its actual game mechanisms will have any protection under copyright. However, the imagery, artwork, text of the rules, and specific game text (if it’s long enough), those portions are copyrightable works.
So the way you describe your game and present the mechanics can be protected, but there’s really nothing (legally) stopping someone from just rewording things and describing your exact mechanics in a different way, as long as they also use different artwork, graphic design, and iconography. Your rulebook is copyrightable, your game mechanics are not.
Trademarks, on the other hand, are a way to identify a product, and its source, as unique in the marketplace.
A game’s name, character names, logos, graphic designs, artwork, etc. are all potential trademarks. That is, unless they are determined to be generic.
Parker Brothers lost the trademark on Monopoly due to its use becoming a generic, a ruling which actually got Congress to change the law to protect other companies. It was already too late for Monopoly, though, which has not been an active trademark since 1983.
On the other hand, Hasbro currently holds trademarks for a wide variety of designs from Monopoly including, but not limited to, The Jail, Go to Jail, Free Parking, and other images, such as the design of the money and the overall board layout. This is why every Hasbro version of Monopoly you see, even one with a distinct theme like say Star Wars, still has the same graphics for key spots on the board, and the layout is the same with names changed.
Another example of this kind of design trademark is by Wizards of the Coast, who have five pages of trademarks all created to prevent brand dilution. This is mostly for Magic: The Gathering and Dungeons & Dragons, and these trademarks exist so that no third party product can look like an official WotC product. This includes logos, colours, where things are located, etc. They don’t want anyone to mistake a fan created product for an official one.
Now one interesting thing about trademarks is that they have to be currently in use to be enforceable. Companies that own trademarks must provide ongoing proof of that trademark’s continued “use in commerce”.
Board Game Mechanics may be Patentable, but good luck with that.
Looking for legal advice? Seek a lawyer. Want some cool information you may wish to discuss with a lawyer? Read on.
Now that you understand why game mechanisms aren’t copyrightable, you may be happy to know that they can sometimes be patentable as utility patents.
This is a vastly more expensive and onerous process than any of the protections mentioned above. To start, a designer must demonstrate to the patent office that the game mechanics in question are both Unique and Non-Obvious. This means no one else can know about or have used them before, and someone with “ordinary skill in game design” must not be able to come up with them on their own.
So roll 2d6 and move is clearly not unique, and similarly making a player roll 2d20 is hardly something another game designer wouldn’t think of, so it wouldn’t meet the non-obvious requirement. Frankly, if you or I can come up with it, it’s probably not non-obvious enough to meet the standards of a patent.
This is how Wizards of the Coast was able to scare people with legal action over tapping cards, though we were unable to find any actual legal evidence of litigation actually happening. There is no current trademark or patent on “tapping”, though the Tap symbol used on Magic cards is unquestionably trademarked.
The “no one else can know about” part is so limiting that even just playtesting your game in a public setting, such as a con, or hiring a developer before your application is submitted, could invalidate your claim.
If, however, you are able to claim a patent on your mechanisms, you are protected for a term that starts from the date you applied for protection (not the date it was granted) to when the patent expires. This timeframe varies by type of patent and country.
Utility patents are VERY protective, hence the need to make them difficult to acquire and relatively short lasting compared to other forms of IP protection.
There are also design patents. These can protect a unique and non-obvious ornamental object, but not any method of its use. This might apply for game piece design to ensure other games dodn’t use similar objects. When people talk about how the Carcassonne folks should have copyrighted the meeple, they are actually talking about a Design Patent (which probably would have failed due to the preexistence of Europa 1945-2030).
All of this is made vastly more complex by the fact that what I have described here, for the most part, only applies in the United States, and protection in that jurisdiction may or may not apply elsewhere. Patents are only valid in the country you apply in, and while, in all places, copyright is granted the moment a work is “fixed”, in order to make legal claims in the US you must additionally register that copyright, while in other countries this isn’t a requirement.
Getting back to Abe’s original question of, “If a game has been patented for more than 20 years?”
Something is either patented, or the patent has expired. A search of the specific patent can determine its current status. If its status is expired, then no legal action regarding the patent can be brought forth.
“Is it still covered by intellectual property?”
If it is still for sale and if it hasn’t been 70 years since the creator died, probably yes.
Looking specifically at card game mechanics, these might have been patentable, but are unprotected by any other IP law. So if the patent has expired or no patent was filed, you are free to use the mechanics from that game by using different copyrightable/trademarkable graphical designs in your implementation.
At the same time, be aware that your description in the rules could conceivably and unintentionally violate copyright if you were to use the same wording to describe the mechanics and gameplay as the original rulebook.
Just Because You Can Doesn’t Mean You Should
I started this whole article with a question from someone looking to basically duplicate an existing game, and, through our research, we determined that except for copying things word for word, reusing art and iconography, and using certain trademarked words, there’s nothing stopping you, legally.
The thing is, as a game designer you don’t want to copy an existing game, even if you technically legally can. There are thousands and thousands of games already out there, with new games being released all the time. Why copy an already existing game? If you like the game that much, play that game. If it’s out of print, then maybe look at getting the rights to the original and republishing it.
Of course, you can and should take mechanics from existing games and use them in your own way. That’s how we get new games. That’s perfectly cool, and it’s why the laws are written the way they are, so as not to stifle creativity and expansion through iteration and improvement.
Finally, there’s the fact that if you do copy a game people are going to notice. It’s just not a cool thing to do.
The board game industry is a space filled with awesome creative folk, folk who don’t like their work to be stolen or used without permission, acknowledgement, or credit. It’s also a much smaller industry than you think. I’ve heard the Tabletop Industry called an “Industry and Friends” and the more I get involved in this industry, through being a member of GAMA, attending game conventions, and working with designers and publishers, the more I see this to be true. If you copy or steal someone else’s work, someone is going to notice and word will get spread around.
I want to leave off with one more thing, and put to bed an old myth that I wish people would stop repeating: Mailing yourself something and leaving it sealed in order to use the postmark as some kind of proof of concept or ownership has never been a valid protection for one’s intellectual property.
That’s it for my look at board game patents, copyrights, and trademarks. I want to give you one final reminder that none of what you find here should be considered legal advice. If you are looking to protect your game or use something from someone else’s game, I recommend you get actual legal counsel.
Want to continue the legal discussion? Head over to the Tabletop Bellhop Discord server. Also, if you spot something factually incorrect in this article, please let me know (moe@tabletopbellhop.com).
As stated multiple times, I’m no lawyer, and while the Bellhop Team did a lot of research on this topic (thanks for the hard work, Sean), this is a deep and confusing topic, and I’m sure there are things we might have missed or misunderstood.
If you like, you can also listen to or watch the podcast where we tackled this topic:
