How to handle questions asking to make a copyrighted game

Question

Recently there was a question asking for help to recreate a copyrighted game and I was wondering what is our stance on this? Should we be closing and deleting those questions as they could encourage people to create (and maybe sell) homemade versions of copyrighted games? Or should we leave those questions be because we don't control what the readers do with that information and only remove it if a publisher files a complaint?

Ticket to Ride Marklin vs. Germany Destination

Answer 1

Making an exact copy of every part of a typical board game may well be an infringement of copyright, depending on the age of the game. But it will often be possible to create a version of a game which does not infringe copyright but has a very similar, if not identical, play experience. I will call such a reworked game a "clone".

Game mechanics and rules are not protected by copyright. In some cases the actual wording of game rules may be protected, but the concepts are not, and a rewarding will remove any protection. Thus rewritten rules may be used in a lawful clone.

The name of a game may be trademarked, and so may associated images, but that only is relevant if someone is trying to market the cloned game. Creating a copy for personal use is not a trademark infringement. To sell a clone, a new name and logo might well be required, one tht foes not imply endorsement or approval of the clone by the original maker, nor lead to reasonable people confusing the clone with the source game.

The graphic design of a board or of cards or pieces may be protected by copyright, but a variant could in most cases be devised that would not be protected. Such a variant could be used in a clone, althoguhnthe original might not be lawful to copy.

In the case of the linked question the OP, as I understand it, merely wanted to complete a partial set without repurchasing, and basically wanted a contents list. That in no way violates copyright.

I have voted to reopen the linked question as edited, and urge others to do the same.

I think questions that do not call for an answer that would itself be a copyright infringement (quite unlikely IMO) should be left open. Even if it seems that the OP intends to engage in a possible copyright infringement, we should not try to judge that, that is for the copyright owner and, perhaps, a court.

Actual Game

A comment reads, in part:

I am not talking about game mechanics but the actual game itself, I don't see at all how you can claim recreating a game isn't a copyright violation or piracy.

That depends on what is meant by "copying the actual game". A game consists above all of the rules. It may include of pieces of various kinds. It may include a board, which will consist of some kind of layout, often with added art. It may include cards, either standard or specific to the game. In the case of game like MTG, the cards pretty much are the game. Lets consider each type of component, and to what degree it is protected by copyright. "Piracy", by the way, is not a legal term in copyright law. The correct term is "copyright infringement".

Rules

The rules as written generally may not be copied word-for-word without permission. But game rules are usually quite concept-bound, and concepts are never protected by copyright. A rewrite of the rules preserving all the concepts while changing the actual words is likely to be held not to be a copyright infringement on this basis, depending on the details. The rule concepts are also known as "game mechanics".

Pieces

The design of game pieces my or may not be prosecutable by copyright, depending on the level of originality that they display. Pieces which are simple disks, or blocks, or pawns, such as those in checkers, parchesii, Sorry, or Risk will have no protection. A particular style of chess set might be protected. although most classic styles would be long out of copyright. But the concept of the chess pieces: king, queen, rook, bishop, knight and pawn, would never have been protected, and could be freely imitated even if chess have been developed last year. Similarly pieces of a different design but with the same game functions would not be an infringement. Thus a clone might need alternate pieces, if the source pieces were sufficiently original to be protectable.

Such game equipment as Monopoly Money could not be copied exactly, but the idea of game currency could not be protected by copyright, and bills of a different appearance would not be an infringement.

Board

The exact layout of a game board may be protectable by copyright, if it is sufficiently original. A simple track such as is used in cribbage or Sorry, or a simple array such as is used is Scrabble or chess would not be original enough. Even where the layout was protectable, a modified layout would probably not be an infringement. Images and art on the board would be protected, but different images or art would not be an infringement.

Cards

Standard cards are, of course, not protected. Cards that are just numerical series, such as those used in Flinch, could not be protected at all by copyright. Cards that are just game instructions, like the "Chance" and Community Chest" cards in Monopoly. might need minor rewrites, but the concepts and directions are not protectable by copyright, and cloning these would not be an infringement.

Highly individual cards such as those used in Cosmic Encounter or particularly in MTG and similar games would have their images and the wording of their texts protected. But the game mechanics, the game effect of each card, cannot be protected by copyright. Creating new versions of such cards with different names and art, but the same game effects would not be infringement. Such new versions could be used in a lawful clone.

The Game Itself

Very few of the elements that go into a game, besides the art and the exact wording of rules and other text, can be protected by copyright at all. Creating a clone game that has identical play, with modified text and new or omitted art will probably not constitute an infringement.

Simply photocopying a game board, cards and rules might well be infringement, although if done for purely personal use might constitute fair use. But modifications of detail may well produce a game that is not an infringement but which has near identical play. Details will matter, of course.

An important concept here is the "idea-expression dichotomy", which dates back to the US Supreme court case of Baker v. Selden, 101 U.S. 99 (1879). Copyright never protects an idea, only a particular expression of that idea. A different expression of the same idea is not an infringement. When an expression is just a list of ideas, or is so bound up with the ideas it describes that there is no originality in the expression apart from the ideas, the expression may not be protectable by copyright at all.

Legal Sources

in US Law, 17 USC 102(b) provides that:

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."

Game rules and game mechanics constitute such procedures, processes, systems, and/or methods of operation, and as such are not protect able by copyright at all.

The US Copyright Office's Circular 1 "Copyright Basics" says on page 2:

What Is Not Protected by Copyright?

Copyright does not protect:

• Ideas, procedures, methods, systems, processes, concepts, principles, or discoveries
• Works that are not fixed in a tangible form (such as a choreographic work that has not been notated or recorded or an improvisational speech that has not been written down)
• Titles, names, short phrases, and slogans

Circular 33 - "Works Not Protected by Copyright" says on page 2:

Names, Titles, Short Phrases

Words and short phrases, such as names, titles, and slogans, are uncopyrightable because they contain an insufficient amount of authorship. The Office will not register individual words or brief combinations of words, even if the word or short phrase is novel, distinctive, or lends itself to a play on words. ...

On page 3:

Layout and Design

As a general rule, the Office will not accept a claim to copyright in “format” or “layout.” The general layout or format of a book, page, book cover, slide presentation, web page, poster, or form is uncopyrightable because it is a template for expression. Copyright protection may be available for the selection, coordination, or arrangement of the specific content that is selected and arranged in a sufficiently creative manner. The claim, however, would be limited to the selection and arrangement of that specific content, not to the selection and arrangement of any content in that particular manner.

Blank Forms

Blank forms typically contain empty fields or lined spaces as well as words or short phrases that identify the content that should be recorded in each field or space. Blank forms that are designed for recording information and do not themselves convey information are uncopyrightable.

The originality requirement for copyright protection was addressed by the US Supreme Court in Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991). This is now considered the leading US case on the originality requirement, and is frequently cited. In the majority opinion, joined by seven other Justices, (with an 8th concurring in the result) Justice O'CONNOR wrote:

(a) Article I, § 8, cl. 8, of the Constitution mandates originality as a prerequisite for copyright protection. The constitutional requirement necessitates independent creation plus a modicum of creativity. Since facts do not owe their origin to an act of authorship, they are not original, and thus are not copyrightable. ...

The Copyright Act of 1976 and its predecessor, the Copyright Act of 1909, leave no doubt that originality is the touchstone of copyright protection in directories and other fact-based works. The 1976 Act explains that copyright extends to "original works of authorship," 17 U.S.C. § 102(a), and that there can be no copyright in facts, § 102(b).

... Even a compilation that is copyrightable receives only limited protection, for the copyright does not extend to facts contained in the compilation. § 103(b). Lower courts that adopted a "sweat of the brow" or "industrious collection" test -- which extended a compilation's copyright protection beyond selection and arrangement to the facts themselves -- misconstrued the 1909 Act and eschewed the fundamental axiom of copyright law that no one may copyright facts or ideas. Pp. 499 U. S. 351-361.

... That there can be no valid copyright in facts is universally understood. The most fundamental axiom of copyright law is that "[n]o author may copyright his ideas or the facts he narrates." Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U. S. 539, 471 U. S. 556 (1985).

...

The originality requirement articulated in The Trade-Mark Cases and Burrow-Giles remains the touchstone of copyright protection today. See Goldstein v. California, 412 U. S. 546, 412 U. S. 561-562 (1973). It is the very "premise of copyright law." Miller v. Universal City Studios, Inc., 650 F.2d 1365, 1368 (CA5 1981). Leading scholars agree on this point. As one pair of commentators succinctly puts it: "The originality requirement is constitutionally mandated for all works." Patterson & Joyce, Monopolizing the Law: The Scope of Copyright Protection for Law Reports and Statutory Compilations, 36 UCLA L.Rev. 719, 763, n. 155 (1989) (emphasis in original) (hereinafter Patterson & Joyce). Accord, id. at 759-760, and n. 140; Nimmer § 1.06[A] ("originality is a statutory as well as a constitutional requirement"); id. § 1.08[C][1] ("a modicum of intellectual labor . . . clearly constitutes an essential constitutional element").

... . The mere fact that a work is copyrighted does not mean that every element of the work may be protected. Originality remains the sine qua non of copyright; accordingly, copyright protection may extend only to those components of a work that are original to the author. Patterson & Joyce 800-802; Ginsburg, Creation and Commercial Value: Copyright Protection of Works of Information, 90 Colum.L.Rev. 1865, 1868, and n. 12 (1990) (hereinafter Ginsburg). Thus, if the compilation author clothes facts with an original collocation of words, he or she may be able to claim a copyright in this written expression. Others may copy the underlying facts from the publication, but not the precise words used to present them. In Harper & Row v. Nation, for example, we explained that President Ford could not prevent others from copying bare historical facts from his autobiography, see 471 U.S. at 471 U. S. 556-557, but that he could prevent others from copying his "subjective descriptions and portraits of public figures." [Boldface added]

...

... Not all copying, however, is copyright infringement. To establish infringement, two elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original. See Harper & Row, 471 U.S. at 471 U. S. 548. [Boldface added]

See also "Not Playing Around: Board Games and Intellectual Property Law" by Daniel J. Schaeffer, Published in Landslide, Vol. 7, No. 4, March/April 2015, by the American Bar Association. In that article Schaeffer writes:

To discuss copyright in board games, we must look back to an 1879 Supreme Court case ironically having nothing at all to do with games. In Baker v. Selden 101 U.S. 99 (1879), the plaintiff had developed a new method of bookkeeping and published a book containing an introduction, an explanation of the method, and some examples that consisted mostly of blank bookkeeping forms. His book met with little success, but when another publisher began successfully selling a book containing very similar forms, his widow filed a copyright infringement suit. The Supreme Court held that although the book was subject to copyright, the bookkeeping method itself was not a suitable subject of copyright, and because the forms were merely implements for performing the method, they were not copyrightable subject matter. Justice Joseph Bradley wrote

[W]hilst no one has a right to print or publish his book, or any material part thereof, as a book intended to convey instruction in the art, any person may practice and use the art itself which he has described and illustrated therein. . . . The copyright of a book on book-keeping cannot secure the exclusive right to make, sell, and use account-books prepared upon the plan set forth in such book.

The principle laid down in Baker v. Selden was later codified in the Copyright Act of 1976, which says clearly:

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”{17 U.S.C. § 102(b)}
Thus, the idea-expression dichotomy that is fundamental to copyright law can be traced back to Baker v. Selden.

Therefore, the systems or processes that make up the core of a game—generally referred to as the “game mechanics”—are not subject to copyright, even though the written rules, game board, card artwork, and other elements—often referred to as the “theme” of the game—may be. Game mechanics can be as simple as “roll dice and move a token along a track,” or far more complex. Regardless of the complexity or originality of a given game’s systems and processes, its game mechanics will likely not be protected by copyright. [boldface added]

...

Board games occupy a somewhat eccentric niche in intellectual property law, often not fully protectable by copyright, trademark, or patent, and thus susceptible to knock-offs and alternate themes. A would-be board game designer should understand which kinds of IP protection apply to which aspects or components of the game, and take appropriate steps to protect them accordingly ...

BoardGameGeeks page on "MythBusting: Game Design and Copyright, Trademarks, and Patents (US Law)" states:

Protection of intellectual property is an important concern in this forum, but I've noticed that the same questions are regularly asked followed by some of the same wrong answers, often finally corrected.

I am not a lawyer, but have run my own book publishing and apparel company for over 6 years, and am now getting into game publishing. I regularly encounter people - even veterans in the publishing industry - who have little clue how copyrights, trademarks and patents really work. US law is a bit of a mess (thanks to some Mickey Mouse lobbyists).

I highly recommend the sources that have I have learned from, Copyright.gov and Nolo Law Press (whose books are very cheap as PDFs).

...

According to the U.S. Copyright Office:
Quote:

Copyright does not protect the idea for a game, its name or title, or the method or methods for playing it. Nor does copyright protect any idea, system, method, device, or trademark material involved in developing, merchandising, or playing a game. Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles. Copyright protects only the particular manner of an author’s expression in literary, artistic, or musical form. [Boldface added]

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 gameboard or container may be registrable.

I trust these sources will help establish that the statements about what elements of a game are and are not protectable by copyright in the earlier parts of the answer are correct under US law.