Anyone reading my blog knows that board games are more popular than ever, and have been a popular form of entertainment for centuries. I often see game designers online wonder whether their games can be copyrighted, or what specific parts of the game are protected by copyright. The answer to that question is not as straightforward as it might seem (like with most legal topics).
In this post, we will explore the question of whether board games can be copyrighted and what that means for game designers.
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What is a copyright?
A copyright is a legal protection granted to the creators of an original creative work, such as a book, film, or piece of music. It gives the creator the exclusive right to use, copy, distribute, and profit from their work for a certain period of time.
Copyrights are intended to encourage the creation of original works by protecting the creator’s investment of time and effort.
Are board games copyrighted?
The answer is yes, board games can be copyrighted. A board game is considered an original creative work of authorship, just like a book or a song.
As long as the game is an original creation and has not been copied from someone else’s work, it is eligible for copyright protection – just like any other copyrightable work!
However, there are some limitations as to what parts of a board game are copyrightable. We’ll discuss this in the next section.
How do you copyright a board game?
To copyright a board game, the designer must follow essentially the same process as any other original work of authorship.
Step One – Creation
The process starts when you actually design the game and create all of the original creative expression in the game – your rules text, images (even prototype images, if you created them), graphic design, and other creative elements.
The good news is that in the United States, you own copyright rights over these original creations as soon as they’re “fixed” in a “tangible medium of expression.”
Huh?
That just means that you’ve created a lasting version on some kind of media – written it down on a piece of paper, sculpted something in clay, saved a digital file, etc. Once that “permanent” copy exists, then you have copyright rights.
The bad news is that you can’t really do anything with those rights. I’ve got a longer post on this which you can find here, but basically the US Supreme Court requires that you have a copyright registration before you can file any copyright infringement lawsuit in the US.
Step Two: Application
So we need to file a copyright application with the US Copyright Office. It may seem relatively simple, but there’s a lot of stuff in the application process that can trip you up if you don’t know what you’re doing.
Stuff like:
- What kind of application should you file? Work of Visual Arts or Literary Work? Something else?
- What’s the difference between an “author” and a “claimant”?
- What makes something “published” versus “not published”? Hint: It’s not what you think.
- What kind of deposit do you need to send in along with your application?
For those reasons, I recommend having a lawyer like me file the application on your behalf. I’ve done lots of them, so I know what I’m doing, and I think my fee is reasonable.
Step Three: Registration
Once the application is filed, it takes anywhere from a few months to a year to get the results. Either they will just send you a registration certificate, or they’ll contact you (or me, if I filed it for you) to clarify something.
Or, they’ll reject it. Usually a rejection is for when there’s not enough original creative content to get copyright protection. I’ve had this issue with things like logos, but not on full board games.
What does a copyright protect in a board game?
A copyright protects the original expression of an idea, not the idea itself. In the case of a board game, this means that the copyright would protect the specific elements of the game, such as the artwork, game rules, and game components.
However, it would not protect the underlying game mechanics or the idea of the game itself.
This is a bit of a tricky topic with lots of nuance, but a board game copyright lawsuit decision a few years back really broke the distinction down. You can read my post about the Bang! court decision, and the decision itself, in my blog post here.
What happens if someone copies a board game?
If someone copies a copyrighted board game, the copyright owner can take legal action.
This may involve a cease-and-desist letter, a lawsuit for damages, or both. If the case goes to court, the plaintiff would need to prove that the defendant’s game is substantially similar to their own, and that the defendant had access to the copyrighted game. Those are the two main components to copyright infringement.
However, as I mentioned before, you can’t file a lawsuit in the US without the registration. If you’ve discovered infringement before filing the copyright application, then you do have the option to pay an expedited filing fee of $800 to get it done super fast.
But you’re better off just getting your copyright application on file as soon as you start selling your game, if not before! Just contact me if you need help with this.
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Conclusion
Here’s a quick summary of what we’ve learned in this post:
- Board games can be copyrighted, just like any other original work of authorship.
- Copyright protection gives the creator exclusive rights to use, copy, distribute, and profit from their work for a certain period of time.
- While a copyright protects the original expression of an idea, it does not protect the idea itself.
- You need a registration to sue for copyright infringement, so that’s why it’s important for designers and publishers to register their game with the U.S. Copyright Office to protect their investment of time and effort.
- If someone copies a copyrighted board game, the copyright owner can take legal action to protect their rights.
