Are board game rules copyrightable?
August 4, 2020 10:37 AM   Subscribe

The actual written language that appears in the rulebooks for board games is obviously copyrighted. But would an implementation of those rules violate copyright? For example, if I built a web-based version of Scrabble (or Monopoly, or 2nd Edition AD&D) – without using the commercial game's name or imagery – would it get sued out of existence?
posted by escape from the potato planet to Law & Government (12 answers total) 2 users marked this as a favorite
Generally, instructions/methods/techniques are not copyrightable. As you say - the name and the imagery could be protected by trademark (and the images by copyright), and the methods/instructions could in theory have been protected by patent, but are almost certainly not currently protected.
posted by mercredi at 10:45 AM on August 4 [2 favorites]

Here's an example of a game that does what you say--mimics Scrabble, but is not scrabble. There were some turf wars about it but in the end they weren't successful in stopping the people making it. Also note that different countries had differing levels of enforcement.
posted by foxfirefey at 11:07 AM on August 4

As foxfirefey points out, a game already did exactly what you describe for Scrabble. They were promptly sued by Hasbro. Hasbro dropped the suit after the makers a) changed the name and b) changed the scoring system and board layout.

Here is a blog post with one lawyer's take on the various merits of Hasbro's case:
posted by justkevin at 11:16 AM on August 4

Here are a few sources: 1 2 3

In general, board games can be protected by all three of these: copyright, trademark, and patent.

In the case of, say, Monopoly:

* All text, illustrations, logos, etc are still under copyright (Monopoly was invented in about 1933, in the U.S. copyright for corporations lasts for 95 years from date of creation, and so the copyright on that original game will expire around 2028, depending on exactly when they registered the copyright. Note however that updated instructions, graphics, etc will still be subject to copyright from the date of their creation. So starting in 2028 you could copy the text, graphics, etc of the 1933 edition but not necessarily the 199 edition).

Exactly how far copyright protection extends is always a matter of debate (and, ultimately, for the courts to decide). Just for example, one word like "Boardwalk" is definitely not copyrightable--especially since it is a generic kind of streetname that exists in many places.

But if you were to duplicate the entire layout of street names and other square names exactly as found on a Monopoly board that might well fall under copyright, because selecting and arranging all those many individual elements into a certain configuration could very well be seen as a creative endeavor.

On the other hand if you (say) came up with a slightly different arrangement and wording of different streets and places from Atlantic City for your (very similar to Monopoly) type board game, you might be OK.

* Trademark: This will last forever and can apply to various elements of the game. Per the article above, the trademark on the game name "Monopoly" was lost in 1983 but I would be quite cautious about exactly what that means.

* Monopoly was in fact patented in 1935. However, in the U.S. patents expire after 20 years as a rule. So that patent is long expired and you are welcome to do as you will with the game mechanics.

Generally speaking, all these things are subject to litigation so it is as important to understand the overall culture and practice of the area you are working in, with respect to litigation, as anything. If Hasbro is well known for going after Monopoly clones hammer and tongs, then maybe better to steer clear. Contrariwise if there are tons of rather exact Monopoly clones out there and no lawsuits in sight, then that is a different situation.

You can learn a lot by seeing what others are doing in this general space and how they are adapting text, place names, etc. in order to avoid legal action over copyright, trademark, and patent.
posted by flug at 11:23 AM on August 4 [2 favorites]

IANAL, but to maybe summarize what others have posted - words are copyrightable, the mechanics are not. So as long as you either don't include rules or rewrite them carefully so that the text of the rules never copies the text of the original rules, you should be fine.

However, graphic design is also copyrightable. So there's a much stronger claim if you copy the gameboard: color and layout and everything. This is probably part of why Lexulous got sued, in addition to originally having a too close name. Their board is an exact copy of the Scrabble board, down to the bonus spaces and colors used, whereas most Scrabble clones use a slightly different arrangement.

Monopoly would be easier to make a functionally identical board with different graphic design, though, since it just needs to be a looping path, and AD&D would not have that issue at all, as long as you aren't stealing maps from published modules. Though as far as D&D goes, some of the names of iconic monsters (illithid/mind flayers I think and some others) are covered by intellectual property law - I'm not exactly sure of the details.
posted by Zalzidrax at 11:51 AM on August 4

IANAL, but to maybe summarize what others have posted - words are copyrightable, the mechanics are not. So as long as you either don't include rules or rewrite them carefully so that the text of the rules never copies the text of the original rules, you should be fine.

Basic rules may not have even this much protection, given the merger doctrine which says that when there are only a few ways to express something the idea and expression merge. But if I was trying to copy someone else's game, I'd certainly want to make the effort not to copy the rules word-for-word, because that would increase my margin of legal safety.

Of course, getting sued unsuccessfully is not terribly much less expensive than getting sued successfully.
posted by jacquilynne at 1:54 PM on August 4

The history of Pathfinder may be of interest to you. It is effectively a branch off of Dungeons & Dragons, which copies many of the same mechanics. There is some discussion here that may also be of interest.
posted by They sucked his brains out! at 2:21 PM on August 4 [1 favorite]

would it get sued out of existence?

Being right is not necessarily protection against being sued, and companies with big pockets and an axe to grind can tie you up in courts with lots of legal fees even if they are 100% in the wrong. So something to keep in mind.
posted by brainmouse at 3:08 PM on August 4 [3 favorites]

Pathfinder was published under the Open Gaming Licence using the D&D3e System Resource Document by a company founded by a friend of many of the D&D development team at the time, and is not a good example in this case.
posted by Hogshead at 4:54 PM on August 4 [4 favorites]

One thing I've read is that, in addition to the above issues on design, using the exact same numerical values (like purchase prices and rents in Monopoly, letter points in Scrabble, or I suppose monsters' hit points and damage dice in D&D) can give someone suing an opening in court if they claim that's part of the "artistic expression" of the game and not mechanics.
posted by mark k at 7:18 PM on August 4

This is why a lot of the Scrabble clones start with different letter scoring and distribution and let you “customize” them back to the expected values.
posted by rikschell at 5:28 AM on August 5 [1 favorite]

Here's a relatively recent law review article that may help clear up some of the issues surrounding copyright and board games: Kevin P. Hales, A Trivial Pursuit: Scrabbling for a Board Game Copyright Rationale, 22 Seton Hall J. Sports & Ent. L. 241 (2012).
posted by mnumberger at 6:58 AM on August 9 [1 favorite]

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