Step 28: Copyrights, Trademarks and Patents


Usually the second or third question I get asked from anyone after they find out I’m a board game designer is something about how I protect my ideas from being stolen. Here’s why I’m not worried about my ideas being stolen:

1) Everyone has an idea for a board game, so stealing someone else’s idea is just so risky and time consuming when they’d rather spend it on their own idea; and

2) if someone does indeed steal your idea – then it’s just going to be a nuisance to sue them. How much is that nuisance worth to you?

Seems harsh a bit – but the good news is that there aren’t many examples of people stealing other people’s ideas for games (I actually don’t know of one). Publishers really don’t do it – because it’s a small industry and they wouldn’t want that kind of reputation. People don’t do it because if they stole your idea then they’d just be in the exact same position that you are in now: the “I’ve got an idea…now what?” stage. Most people don’t have a clue on how to take that next step.

Let’s dissect the differences between the copyrights, trademarks and patents and which ones we need to be concerned with as a board game designer. It should be stated that I’m no lawyer, so this is meant as just observations from my experience.

Copyright:

Basically, copyrights protect intellectual property like a book or a board game. It does not protect ideas, facts, systems or methods of operation.  This is how trivia games are able to exist and not be sued. Where you could get into an issue with copyrights and games is if your game uses actual text/dialogue from something else. You might get lucky if you only use a small amount, but I wouldn’t risk it. If you are preventing a company from making a game off their own property then you are in trouble! Obviously you can’t make a board game based off of a popular TV show without a signed contract beforehand – but you can get away with trivia, as long as it’s not a trivia game based just on that one property. You couldn’t make a Simpsons Trivia game without a signed contract, for example.

What will be protected by Copyright in a board game:

Pretty much just the rulebook is protected. You can’t protect the mechanics or systems at all in your game. Someone could make an almost identical game to yours, and as long as they redo the entire rulebook, then there would be nothing you could do.  That said, who would go through that much effort and cost to make a game that is too similar to something else that’s already available? Sure there are many instances of novel mechanics being borrowed/stolen from one game to another, but that happens in any medium.

How do you copyright a board game:

Just make it. There you go – it’s automatically protected! As soon as something is created it is protected. Now you can register for an actual copyright, but it’s never usually recommended. It would only be part of a lawsuit were one to arise from some sort of infringement – and a very minor part. I haven’t heard of game designers getting their own work protected by an official copyright before. We don’t.

If you are the legal author, then you are allowed to use the © symbol if you want, though it doesn’t help or hurt you for having or not having it on your work!

Trademark:

A trademark protects words, phrases, symbols or designs that identify a brand and help distinguish it from another.  You couldn’t design a game and call it Monopoly, for example, or open a restaurant that had golden arches.

What will be protected by a Trademark in a board game:

If you’re just in prototype phase, you could trademark your logo or a saying/slogan that goes with your game.

How do you trademark a board game

Similar to copyrights, your work is trademarked as soon as it’s created. Feel free to put the TM after a logo to prove that you’re the legal owner of the rights to that logo. We have never done this for our prototypes – and I don’t see it very often on finished products either. When you see an R after a logo, that stands for Registered Trademark and is often used for big companies. If you’re looking to self-publish, then it might be worthwhile to prove to the public that it is indeed your property.

It seems like the only time you see the © or TM is from a paranoid person who has a fear that his or her idea will be stolen.

Parody:

Now you can get away with a lot if you’re framing it up as a parody. If you’re using a logo that kind of looks like a popular TV show, but is making fun of it – then you’re ok. Mad magazine gets away with this all the time. Parody can be a fine line though, so you might want to get more professional counsel if you’re unsure.

Patent:

This is an apparatus for sure, but I dont think I want to play this game!

A patent will protect an invention or discovery.

What will be protected by a Patent in a board game:

Patents for board games only make sense when you have invented a new mechanism that hasn’t been seen before. I’m not talking about a new game mechanic, like a new way to do card drafting, but an actual physical mechanism or apparatus that does something in your game.

We have never had to patent any of our ideas as there was never an invention of a physical apparatus in any of our games. Anyone who tells you that you should patent your board game before sending it to a publisher – and your game has no new physical mechanisms to it – then they are overly paranoid, ignorant of the process, or stand to make a buck from it somehow!

Recommendation:

The best advice I can give is to not worry at all about it. I’d also say that you shouldn’t put all your eggs in one basket though. If you enjoy game design – then work on a few more, just in case.

Steven Sondheim – one of the greatest musical composers of all time – was apprenticing under Hammerstein (of Rogers and Hammerstein) and Hammerstein asked him to write a musical. Sondheim spent 9 months and finally handed in his first musical. Hammerstein took it and threw it in the fire and said, “Thanks, now write another one.” Sondheim was devastated but eventually wrote another one. After this happened 4 times to him – Hammerstein finally said, “OK now you’re ready – write a musical.” And then he wrote the Tony Award-winning Company.

We recently had a game signed by a publisher to be published but then a game was announced to come out around the same time – and the description of that game made it sound ridiculously similar to our game. We did show off our game to people when we were at BGG.con in November – so there’s a chance that someone saw it there. But as disappointing as that is – we’re not suing or anything…we’re just moving onto our next project. And this was a game that was signed to be published! But it can’t be proven that they stole this idea. In fact – if anything we could be accused of stealing a portion of their game since a version of their game existed a long time ago (though we weren’t aware of it, we swear!).

Let me know though if you’ve had any experiences with any of these three things when it comes to board games. While I hope no one has ever gotten the short end of the stick, I would like to hear about the other side of the coin to see if our experiences so far have been normal or atypically lucky!

-Jay Cormier

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2 thoughts on “Step 28: Copyrights, Trademarks and Patents

  1. Very nice summary Jay, thanks for the read! I’ve never personally designed a game, but I did at one point work on a computer version of one (just for fun because I had too much time on my hands at the time). After a little research, I realized that I was probably violating their copyrights because I was using their art, so I made sure that I took it down and stopped sharing it with others. Oh well, at least I can still play it!

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  2. Just a comment and a caveat – neither Jay nor I are lawyers. We’re also Canadian. So the information provided above should be taken with a grain of salt – the laws may be different where you live vs. where your game is being published. So be sure to review everything with a lawyer if you are concerned about anything.

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