Copyright and Game Systems

This is a collection of notes on creating a new standalone game (role-playing or board) which draws on or develops ideas from an earlier game. There are not many hard fact here... I have not been able to find any court cases which help clarify where the line can be drawn.

For a new standalone game, one generally has to deal solely with copyright law. The new game presumably has a distinct title, so trademark law is not relevant. Patent law might apply, but as far as I know there are no patents relating to RPGs. There is one (held by Wizards of the Coast) dealing with collectible card cards which use "tapping".

So the important question is: how similar does a new game have to be in order to infringe on a previously copyrighted game?

Copyright Office Letter

The U.S. Copyright Office has a form letter with instructions for copyrighting games, form FL108. The first three paragraphs of this letter (from June 1999) are quoted below in full:

         The idea for a game is not protected by copyright. The same is true of the name or title given to the game and of the method or methods for playing it.

         Copyright protects only the particular manner of an author's expression in literary, artistic, or musical form. Copyright protection does not extend to any idea, system, method, device, or trademark material involved in the development, merchandising, or playing of a game. Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles.

         Some material prepared in connection with a game may be subject to copyright if it contains a sufficient amount of literary or pictorial expression. For example, the text matter describing the rules of the game, or the pictorial matter appearing on the game-board or container, may be registrable.

This expressed clearly the principles. The exact line between textual expression and idea is still a judgement for the courts, however.

Legal Precedents

I do not know of any court cases which directly address this question. There are some cases which peripherally address it, however.

In "Anti-Monopoly, Inc. v. General Mills Fun Group" , General Mills attempted to show that the Anti-Monopoly game infringed on their copyrighted and trademarked game Monopoly. Part of the judgement is shown on the Anti-Monopoly website. The Supreme Court eventually found that General Mills' copyright claim itself was bogus, in that Monopoly was based on earlier uncopyrighted boardgames. The Ninth Circuit also explained in their judgement: "Trademarks are not properly used as patent substitutes to further or perpetuate product monopolies."

While interesting in its own right, this does not answer the question of how similar a board or role-playing game has to be to avoid copyright infringement.

In "Allen vs Academic Games", a group marketed tournament rules for playing copyrighted games. This bears directly on game supplements. However, in their judgement the court also noted that the copyright holder ("Allen") failed to show a distinction between the rules themselves and expression of those rules. i.e. There are only so many ways to phrase "play proceeds clockwise around the table" -- but even if you copyright ten different expressions, it does not prevent someone from using such a rule in his game, even if it means using the same or very similar words.

Within role-playing games, one case was that of the Dangerous Journeys RPG system, written by Gary Gygax and published by GDW. TSR filed suit that this was an infringement on the AD&D copyright. The case was not tried in court, but instead the two companies settled with TSR buying the rights to the game.

This unresolved suit is a bit odd, however. The main mechanics of Dangerous Journeys are quite different than AD&D. From a gamers point of view, there are a great many published RPGs which are closer to AD&D than DJ is. Many games such as Bard Games' Arcanum or Palladium FRP are much closer to AD&D both on the surface and in practice. On the other hand, some incidental text such as equipment lists did appear to be taken directly from AD&D.

So while one should pay attention to the suit, I think the grounds for the suit were based on the author (Gary Gygax) having previous worked at TSR and on minor text such as random insanity tables and monster names.

Practical Matters

So while reading the above cases gives some impressions, the basic question remains unanswered: how similar does a new game have to be in order to infringe on a previously copyrighted game?

I have no clear answers. The Dangerous Journeys case suggests to me that it is best to avoid any hint of verbatim copying of terms or phrases even if the rules themself are distinct. However, reproducing the rules themselves through different wording appears reasonable. However, I am not an expert in these matters and you must decide for yourself or get your own legal counsel.

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John H. Kim <jhkim-at-darkshire-dot-net>
Last modified: Sun Nov 10 10:11:06 2002