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Worlds of Design: What Game Designers Need to Know About IP

It is virtually impossible to protect game ideas, but virtually no idea is new. On rare occasions someone deliberately copies someone else’s game, but game designers cannot worry about this: they have to talk to publishers, funding sources, and other people about their games.

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Photo courtesy of Pixabay.

I've always believed that the best way you combat intellectual property theft is making a product available that is well priced, well timed to market, whether it's a movie product, TV product, music product, even theme-park product.” Bob Iger​

In most cases in the tabletop industry, when two games are published that strongly resemble one another, it’s a case of independent creation of similar material. In video games it’s much more common for companies to deliberately “clone” good but often obscure games; unfortunately, given the copyright law there is usually very little that can be done about it.

(Obligatory disclaimer: I am not a lawyer, though I have listened to presentations about intellectual property by lawyers.)

Copyright protects the words you write and the artwork you create from exact wholesale copying. Game ideas/mechanics are specifically *not* protected. Copyright protection exists as soon as you write something. If you want/expect to sue someone then you will need to register your copyright (about $35). Copyright violations are illegal even if there is no financial gain, but there is a murky fair use doctrine that allows someone to use brief quotes.

Trademarks and service marks protect game titles and occasionally taglines or other associated mottos. When you put the letters TM after the word or phrase you want to trademark on a product that you are selling then you have claimed trademark, but occasionally companies register the trademark for some $350, indicated by a circled “R” ®. (The common law trademark can only work when your product is actually being sold, not when it is in planning stages or after it’s out of print.)

Patents are supposed to protect individual expressions of ideas and products, so you could patent a game, but commercial games are almost never patented, and defending the patent in court would be prohibitively expensive even for fairly large publishers, yet almost two thirds of patents are invalidated when tested in court. Obtaining the patent at $3,000-$10,000 or more is likely to be more than the game is worth (quite apart from the difficulty of defending the patent).

Companies that hold the intellectual rights for famous characters such as Batman or Luke Skywalker have no interest in allowing these characters to be used in games from small companies: it isn’t even worth the time and money they’d spend to arrange and monitor. It is very likely a waste of time for a designer to create a game that uses characters, stories, or settings from some other commercial property such as a film or novel. Most likely someone has licensed that property for games and will have their own ideas of the kinds of games they want. There are examples of someone creating a game using someone else’s intellectual property and then getting a license to make the game, but it’s quite unusual. No license, no publish.

If a freelancer licenses his game to a publisher he needs to be sure the contract spells out exactly how profits are distributed for ancillary items, whether they are T-shirts or an electronic version of a tabletop game or a tabletop version of an electronic game.

If you work full-time for a video game company, they may include in your contract a clause that any game you create during the time you work at the company belongs to them. If you create games independently you need to get this clause changed/removed.

The game industry - even video games - is fairly small, and RPGs are very small in comparison. If someone copies another person’s game or a significant part, most everyone will hear about it, and the copier will not prosper in the long run.

This article was contributed by Lewis Pulsipher (lewpuls) as part of EN World's Columnist (ENWC) program. Lew was Contributing Editor to Dragon, White Dwarf, and Space Gamer magazines and contributed monsters to TSR's original Fiend Folio, including the Elemental Princes of Evil, denzelian, and poltergeist. You can follow Lew on his web site and his Udemy course landing page. If you enjoy the daily news and articles from EN World, please consider contributing to our Patreon!
 
Lewis Pulsipher

Comments

LuisCarlos17f

Explorer
An option could be to recover characters and stories from now public domain, (75 years after author's death most of times). Some monster and creatures are public domain now.
 

MarkB

Hero
An option could be to recover characters and stories from now public domain, (75 years after author's death most of times). Some monster and creatures are public domain now.
This can lead to a proliferation of such works that risks market-saturation as soon as such a copyright expires. See the surge of Sherlock Holmes TV shows a little over a decade ago, plus the Robert Downey Jr movies.
 

LuisCarlos17f

Explorer
There is no copyright for classic fairy tales or Shakespeare's works, and there is no market-saturation. Now some superheroes from 30's years comics and other pulp fiction heroes are public domain.

There is a great potential in the popular folklore and I don't refer only British isles but also from Spain, France, Italy, European East. Lots of feys and other creatures should be recovered, saved from the oblivion. And preislamic pantheons (Sumerians, Mesopotamians..) from jahiliyyah (age of ignorance).

And cinema produces now notice famous franchises are only a hook, because to be a blockbuster they need a good story.

Why not a fantasy version of Cervantes' work "the travails of Persiles and Sigismunda", set in a post-apocalypse world with mutant bloodthearters mutant orcs and zombies?
 

practicalm

Explorer
One place where game patents are popular are in casino table games. Companies will patent game variants of blackjack and poker to keep other companies from using similar mechanics. Also with slot machines.
 

Cergorach

The Laughing One
Copyright isn't as clearcut as depicted above, there are certain exceptions, just often wrongly applied by people that have only heard/read half of a law...
 
Because of the Berne Convention, you normally don't need to register a copyright in order to have your work protected. A good piece of advice is to print a copy of your work and mail it to yourself via registered mail (don't open it). That proves the work was your property as of a certain date in case anyone later on tries to claim the work was theirs.
 
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My view is that in RPGs, which often merge - quite deliberately - fiction and game mechanics, it can sometimes be hard to tell what is copyright protected and what is not. Eg if you write and publish a game in which there are orcs who live in villages in which any individual has a 2/3 chance to be male rather than female, are you writing a game mechanic (inspired by Gygax's Monster Manual)? Or are you violating the copyright WotC enjoys in respect of that Monster Manual, which includes a story about orcs who living in villages having a male:female ratio of 2:1?

I don't think it's clear-cut.

The same thing could even apply to PC generation systems: is the STR, INT, WIS, DEX, CON, CHA spread of stats a game mechanic, or a story about a certain sort of people? I think the argument for mechanics over story might be stronger in this case, but I'm still not sure it's clear-cut.
 

Cergorach

The Laughing One
My view is that in RPGs, which often merge - quite deliberately - fiction and game mechanics, it can sometimes be hard to tell what is copyright protected and what is not. Eg if you write and publish a game in which there are orcs who live in villages in which any individual has a 2/3 chance to be male rather than female, are you writing a game mechanic (inspired by Gygax's Monster Manual)? Or are you violating the copyright WotC enjoys in respect of that Monster Manual, which includes a story about orcs who living in villages having a male:female ratio of 2:1?

I don't think it's clear-cut.

The same thing could even apply to PC generation systems: is the STR, INT, WIS, DEX, CON, CHA spread of stats a game mechanic, or a story about a certain sort of people? I think the argument for mechanics over story might be stronger in this case, but I'm still not sure it's clear-cut.
If your really worried about the 2/3rd 'rule' being copyrighted, you can pretty much get the same effect stating that "around 70% of the population is male Orc".
As for the specific STR, INT, WIS, DEX, CON, CHA spread, that might result in some issues, but some very old RPGs have taken almost 60% of their core stats from D&D:

RUNEQUEST:
Strength (STR)
Constitution (CON)
Size (SIZ)
Intelligence (INT)
Power (POW)
Dexterity (DEX)
Appearance (APP)

After decades of inaction from TSR/WotC I suspect it's a very save bet that those aren't copyrighted.

An additional wrench is thrown in the whole copyright 'debate' with Open Source licenses like the OGL, where your not only bound by the copyright law, but also the license rules of the OGL. Thus things available through copyright law might now be restricted due to license rules, on the flip side you have uncontested access to things that are covered and restricted by copright law or are a bit 'grey'.

Also, let's not kid ourselves, the influence of money... If a company like WotC/Hasbro, Disney, or *shudders* Harmony Gold throws lawyers at you, most indies can pretty much fold their business. Although not universally true (look at 'recent' Games Workshop litigation, where they got slapped around on many of their claims), money does make the world go round and disappointingly, not creative ideas...
 
If your really worried about the 2/3rd 'rule' being copyrighted, you can pretty much get the same effect stating that "around 70% of the population is male Orc".
Are you an IP lawyer or similar? As in, is this your technical opinion on where the boundary lies between telling another's story and telling your own?

As for the specific STR, INT, WIS, DEX, CON, CHA spread, that might result in some issues, but some very old RPGs have taken almost 60% of their core stats from D&D:

RUNEQUEST:
Strength (STR)
Constitution (CON)
Size (SIZ)
Intelligence (INT)
Power (POW)
Dexterity (DEX)
Appearance (APP)

After decades of inaction from TSR/WotC I suspect it's a very save bet that those aren't copyrighted.
T&T uses Luck as a stat (in place of WIS? I can't remember off the top of my head). RQ uses Power and adds Size. Traveller drops WIS and CHA and adds EDU and SOC. These are all ways of telling different stories.

An additional wrench is thrown in the whole copyright 'debate' with Open Source licenses like the OGL, where your not only bound by the copyright law, but also the license rules of the OGL. Thus things available through copyright law might now be restricted due to license rules, on the flip side you have uncontested access to things that are covered and restricted by copright law or are a bit 'grey'.
The OGL only throws in a "wrench" if you choose to publish pursuant to it. And if you do so, you are expressly being given a licence to use others' copyrighted works.

But Gygax's MM (to pick one example) has never been published under the OGL as far as I know, which means that my original point about orcs can't be sidestepped by publishing under the OGL.
 

Morrus

Well, that was fun
Staff member
My view is that in RPGs, which often merge - quite deliberately - fiction and game mechanics, it can sometimes be hard to tell what is copyright protected and what is not. Eg if you write and publish a game in which there are orcs who live in villages in which any individual has a 2/3 chance to be male rather than female, are you writing a game mechanic (inspired by Gygax's Monster Manual)? Or are you violating the copyright WotC enjoys in respect of that Monster Manual, which includes a story about orcs who living in villages having a male:female ratio of 2:1?
The text (i.e. the expression) is copyrighted, but the underlying idea or information is not. Ideas and inventions are the arena of patent law (although that wouldn't qualify as one). Names, brands, and such are protected by trademark law. Derivative works are a little more complex.
 
The text (i.e. the expression) is copyrighted, but the underlying idea or information is not. Ideas and inventions are the arena of patent law (although that wouldn't qualify as one). Names, brands, and such are protected by trademark law. Derivative works are a little more complex.
Copyright can protect text beyond the literal words used. The Holy Blood and The Holy Grail authors lost their suit agains Dan Brown, but not because the suit was ill-conceived in principle but because they didn't actually prove any non-textual copying.
 

S'mon

Legend
Copyright can protect text beyond the literal words used. The Holy Blood and The Holy Grail authors lost their suit agains Dan Brown, but not because the suit was ill-conceived in principle but because they didn't actually prove any non-textual copying.
I was just teaching this again on Friday! Along with The Spear/The Spear of Destiny, where the plaintiffs won.

The basic principle of non-literal infringement claims is that no one knows what way the court will go. Including the court:

"It is impossible to define the boundary between the mere taking of general concepts and ideas on the one hand, and copying in the copyright sense"
- Justice Laddie in IPC Media Limited v Highbury Pleasure Publishing (2005) FSR 20
 
[MENTION=463]S'mon[/MENTION], I don't know the "Spears" case but will look it up when I get a chance. I know the other one because when it was being argued a copyright colleague was discussing it with me, precisely around the interesting issue of what constitutes non-literal/non-textual copying. I've obviously got nothing useful to contribute to the technical analysis (and certainly am not going to try and one-up Laddie J) but in my mind, probably going back to those conversations with my colleague, are notions like the "structure" or the "conceptual architecture" of a work.

When it comes to RPGing, it seems that so few cases are run - in part, I assume, because it's not really worth anyone's time and/or money - that it will be a long time before any of the relevant issues are properly sorted out in relation to this particular genre of work.
 

S'mon

Legend
[MENTION=463]S'mon[/MENTION], I don't know the "Spears" case but will look it up when I get a chance.
From Friday's lecture slides:

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Ravenscroft vs Herbert [1980] RPC 193

Non-literal infringement by James Herbert - background & prologue to The Spear were re-writing of The spear of Destiny’s narrative - no original research.
“an author is not entitled, under the guise of producing an original work, to reproduce arguments and illustrations of another author so as to appropriate to himself the literary labour of that author”

Non-literal copying of Ravenscroft’s language, incidents and interpretation of events.
4% of the defendant’s work was copied from Ravenscroft, but for damages it was held to represent 15% of the value of the whole of the work.
In fact the basic inspiration – the idea - for the novel seems to have entirely come from Ravenscroft’s work of crypto-‘history’.


It's a fun case - the book has undead Himmler animated by Neo-Nazis in 1970s England - I bought 'The Spear' (excised version) but couldn't get into it. I should buy The Spear of Destiny.
 
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[MENTION=463]S'mon[/MENTION], any thoughts on how that sort of analysis might/would extend to RPGs whose derivation from D&D (in terms of story elements and the way they are set up as elements for play) is fairly transparent? (Assuming they're not licensed under the OGL or some other licence.)
 

S'mon

Legend
[MENTION=463]S'mon[/MENTION], any thoughts on how that sort of analysis might/would extend to RPGs whose derivation from D&D (in terms of story elements and the way they are set up as elements for play) is fairly transparent? (Assuming they're not licensed under the OGL or some other licence.)
(just edited post above)

I would be surprised if infringement was found. Ravenscroft already felt like a bit of a stretch to me.

However if you took a TSR adventure and just re-wrote it, you might conceivably infringe. It's likeliest with railroady scene-by-scene adventures I think.
 

S'mon

Legend
Oh, I have (most of) Friday's lecture recorded - if you PM me I can share the link. I have a cold/flu so maybe not the greatest but might be useful.
 

talien

Community Supporter
An interesting take on this is The Adventure Zone (TAZ) podcast. Before it became really popular, the first episodes of the podcast were about the Lost Mine of Phandelver. Fast forward a couple of years and TAZ is so popular that it became a comic. The comic is a beat-for-beat retelling of the adventures of the three characters in WOTC'S D&D adventure: https://amzn.to/2NtQJyx


They just tweaked the names (Klarg became G'Nash, I think). It's one example of a published adventure acting as a springboard for a unique work.
 
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