Copyright and Game Supplements

There are several of cases of published supplements which work with an existing game, published without authorization of those who hold the copyright on the original game. In general, such supplements do not reproduce significant text from the original game. Thus, it is a tricky question as to whether copyright law is invoke-able at all. It is possible for trademark law to be involved, which is a separate issue that depends on the cover and marketting.

Video Game Precedents

Within the computer game world, it has been substantially shown that simply being compatible with a system does not show copyright infringement. In "Galoob vs Nintendo" , the Game Genie by Galoob was shown not to infringe on Nintendo's copyrighted system which it altered. In "Sega vs. Accolade", the Sega-compatible games by Accolade, Inc. were shown not to infringe on Sega games. Connextix has similarly made products usable with other games successfully, with court decisions to back them up.

The key in these cases is that the compatible games did not reproduce substantial portions of the original game code. In contrast, "Atari vs Nintendo" found that Atari's Nintendo-compatible games did copy verbatim large portions of the original code (which they obtained through surreptitious means), and were found to have violated copyright.

The Digital Millenium Copyright Act has changed how companies may access digital code -- by making it illegal to circumvent encryption or other technologies which protect the code. However, this does not affect the case of boardgames and role-playing games, where the "code" is by definition already readable.

Non-Computer Games

In the world of role-playing and board games, the case precedent is not so clearly defined. There are several cases of mass-market items which have been marketted against the wishes of the original game publishers. The only relevant legal precedent that I know of is "Allen vs Academic Games", where a group marketed tournament rules for playing copyrighted games. The court found in their favor.

Two other cases (which were not tested in court) are Mayfair Games' Role Aids line (which were compatible with TSR's AD&D role-playing game), and Companion Games' Far Side line (which was compatible with the Star Fleet Battles boardgame, which was at that time published by Task Force Games.

The Role Aids line was started in 1982 by Mayfair Games. These products were marketed as usable with AD&D. In 1984 without going to court, TSR came to a legal agreement with Mayfair Games over how to use their trademark. In 1991 they sued that Mayfair had violated this agreement along with copyright and trademark laws. The end result was that the court found that some (but not all) of the Role Aids line were in accidental violation of the exact terms of the agreement and awarded some damages. However, it did not terminate the agreement or find that the line as a whole was in violation. (cf. "TSR vs Mayfair Games") Eventually, TSR bought the rights to the Role Aids line from Mayfair, and promptly dropped it. Mayfair Games eventually closed shop in 1997.

The Companion Games Far Side line were started in 1993, and were marketed as usable with Star Fleet Battles. They marketed this line for several years without incurring a lawsuit, although SFB's designer held them to be illegal. In 1997, the company went bankrupt over their main line, the Galactic Empires collectible card game, as the CCG market dried up. The authors went on to release a successful Babylon 5 licensed game and others.

Legal Issues

First of all, I do not claim to be an expert on this subject. I offer the above information and cases for individual judgement. However, I thought I should comment on some issues.

The primary issue in the non-computer game cases has been the question of trademark. It is impossible to market a game supplement if you cannot advertise what it is a supplement for.

Some have claimed that any game supplement is by definition a "derivative work" under copyright law. This is based on Chapter 1, Section 103 of U.S. Copyright Law. However, a derivative work in this sense is defined by the inclusion of previously-copyrighted material.

In the cases referred to above, the courts found that no violation had occured when the works reproduced only what is neccessary to convey the essential idea. i.e. Accolade's code contained some of the same code that Sega did, but this was simply because they were conveying the same idea. Simply referring to or interacting with previous works does not by itself make a work derivative.

There are a few cases, however, where the subject matter of a copyrighted work is considered to be part of the copyright.

Game Company Policies

Some game companies have specific (or not-so-specific) guidelines about making supplementary material for their games. In general these are aimed at fans of the game putting up free supplementary material on web pages.

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John H. Kim <jhkim-at-darkshire-dot-net>
Last modified: Wed Aug 4 12:23:53 2004