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Copyright In Gaming – The More Things Change, The More They Stay The Same

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You may have heard about the recent court decision over the card game Bang! and a clone of it called Legends of the Three Kingdoms. At issue was the fact that, while thematically different, Legends of the Three Kingdoms was, rules and character ability wise, almost exactly the same as Bang!. The court decision ruled in favor of the cloned game, stating that:

“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.”

What this means for board gaming, and tabletop gaming by extension, is that rules systems are not copyright-able. For a very detailed look at the case and a really good summary, see this link from Strebeck Law.

Let me state that I am in no way a lawyer, nor have I ever claimed to be one and nothing I say should be construed as any kind of legal advice to act on. The particulars of this case are interesting, due to the fact that they bring this decades old conversation into the spotlight one more time and uphold a very old precedent in rules enforceability.

Gaming  Has A Long History Of Copyright Unenforceability (On Rules at Least)

[pullquoteright] The interesting elements of a game setting are often what draw people into the game and the rules support a certain style of play that supports the setting ideas.  [social_warfare] [/pullquoteright] As a game developer and owner of various small press game publishing companies, I’ve spent more than my fair share of time trying to get a layman’s understanding of copyright in the gaming industry. Thankfully I’ve been assisted by actual lawyers from time to time, and thankfully there are some well defined precedents. It has long been established that copyright does not effect rules. Just check out the copyright.gov one page on how copyright law affects “games”. http://www.copyright.gov/fls/fl108.pdf

“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.”
And that quite simply means that roll d20 and add a modifier is free and available to any fantasy heartbreaker concept you have. It’s been this way in Tabletop Gaming for a long while and in board gaming even longer. The idea of rolling a die and moving that many spaces has been used in games far back into history, and when boardgaming companies like Milton Bradley and Hasbro became big players, various fights erupted over what could and could not be copyrighted and have continued popping up every so often, by which I mean perpetually.

[pullquoteleft] The resolution mechanic, and whether it is owned by some other entity, is really the last part of any game that is considered by the end user.  [social_warfare] [/pullquoteleft]Of course things like setting, characters, and unique rules terms are covered by copyright in the same way that books and movies are, with a little overflow from trademark on various terms and brand identities. That’s good, because people rarely come to a game for the game system unless it is doing something new and unique. The interesting elements of a game setting are often what draw people into the game and the rules support a certain style of play that supports the setting ideas. The resolution mechanic, and whether it is owned by some other entity, is really the last part of any game that is considered by the end user.
 

Dice Patents

One very interesting thing that can be locked down legally, somewhat, are dice. Dice Collector has a huge list of dice designs that are patented, or at least the processes for making them and the unique expressions of various types of die. Patents only last for a limited time and in many cases can only be applied to very unique expressions of an idea.
http://www.dicecollector.com/DICEINFO_PATENTS.html

dicepatents_dicecollector.com

Why This Is A Good Thing For Gaming

Let’s be clear about one thing: Having your long hours of work to create a set of game rules that gets whole-cloth stolen is extra shitty, especially when copyright and patents don’t work in your favor for protecting your work. However, the scales of copyright tipping in favor of copying game rules is a good thing, in my opinion, for the gaming industry as a whole. Being able to develop a game without massive fear about someone suing you because it’s all already been done before is beneficial for making new games. Drifting and porting rule ideas (plot points, as used in Cortex, Fate, Dogs in the Vineyard, Star Wars, Mechwarrior, etc, etc, etc, are just one example) into a game design make advances in game theory available to multiple creators. Using base mechanics (like roll a D20 and add a modifier) that have already been well established means that you don’t have to try to reinvent the polyhedron to get a core resolution mechanic and can focus on  unique or more interesting elements of the game. The simple inversion of reducing difficulty through skills rather than beating it (as seen in Numenera and other Cypher System games) might not have been possible if copyright over dice or rules enabled large game companies to sue over dice mechanics. Dungeons and Dragons might not even have been viable to have come to market in the 70s if copyright and patents on dice got locked down more by board game companies. Just check out Designers and Dragons for more in-depth look at the multiple lawsuits that occurred in the early days of gaming.

A less restrictive copyright structure allows for a lot of freedom in creating games. I for one would rather see the cool new things come out from the incredible range of designers out there than have unique designs shelved for fear that bigger names in the industry might be able to sue to protect their power base.

Your Thoughts

There is a lot of discussion on copyright and games going on now, and it’s been ongoing for quite some time. A very good overview can be found here, and by an online search of copyright in gaming, but the beautiful thing about our messed up legal system is that it is constantly changing based on the ongoing discussions. So what are your thoughts on how copyright in gaming is being used? Are you for the fairly loose protections currently at work in the gaming industry or would you prefer more strict controls?

 

6 replies
  1. Scott Martin says:

    I enjoyed the OGL movement and officially embracing fan creations as okay. I feel that the companies that embraced fan submissions and enthusiasm on the internet “get it”–I’m happy that we don’t have to pretend that our traps collection is meant for anything other than D&D. (And the recent embrace of fan publishing in their copyright world via the Dungeon Master’s guild is very interesting to me… I look forward to seeing how it shakes out over the next few years.)

    My favorite at the moment are the “magazines” of the Fate Codex and Worlds of Adventure. They’re often custom builds of the generic system,–so they are both a solid rules system that I enjoy, but tweaked to really fit a setting. I’m going to look into the expanded Venture City to see how their take on superpowers turns out–and I’m looking forward to it!

    • John Arcadian says:

      Yeah, OGL and the recent movement to opening up systems to fan creations/official derivative works is an awesome step in the right direction. Gaming is in such an odd place, relative to other media outlets and entertainment. It’s so much more about collaboratively creating that it would be hard to lock it down — better to embrace it and have other people spread your game.

  2. Tim Jenkins says:

    Very informative. Great work, keep it up. You missed a spot, needs more gnomes and severed draconian heads. Ahem, I approve of this article and want to read more.

  3. Yora says:

    I had heard of this ruling before but wasn’t sure if it was still accurate. Interesting to see it confirmed again now.

    The OGL for the d20 system was certainly a major driving factor behind the now existing OSR scene, but in practice none of the games I’ve seen actually use any of the text that is legal to copy under this license. The only thing it is really used for by OSR games is to get the names of various original D&D monsters, on which copyright claims might be enforcible. If you don’t call an owlbear and “owlbear” or a stirge a “stirge”, you don’t have to use the OGL.

    A good example are the games from Sine Nomine. Except for those made for Labyrinth Lord, none of them is released under the OGL, even though you can clearly see their ancestry. And it’s all perfectly legal, as the legal ruling confirms.

    There’s also the weird thing that the d20 OGL does not grant permission to use the name “Dungeons & Dragons”, so all the retroclones never mention it at all, not even in the preface, but still jumping through hoops to make very obvious references to it. I believe that the OGL does not actually have the ability to forbid it (or makes any claims to that effect), but it’s still a thing that everyone does. While there might be a slight chance that you could theoretically be sued for it, you wouldn’t have such problem if you don’t use the OGL. (But then you can’t have owlbears and stirges.)

    • John Arcadian says:

      The name Dungeons and Dragons is trademarked, so that is protected under different Intellectual property laws. Same thing for Illithid and a few other monsters that were made by TSR/Wotc/etc. and could be trademarked. They get their protections under trademark law, but you can have a Mindflayer or Braineater monster that is mechanically identical, but not using the same name.

      http://www.giantitp.com/forums/archive/index.php/t-121509.html Has a good list of trademarked monsters and a discussion on them.

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