Court rules in favor of cloned tabletop game – No protection under US copyright law

A final decision has been handed down in the 2-year copyright infringement case involving the card game Bang! and its clone, Legends of the Three Kingdoms.

The backstory

Back in 2014, the creators of the card game Bang! filed a copyright infringement lawsuit against Chinese company Yoka Games and their US distributor, ZiKo Games, LLC. At issue was Yoka’s game Legends of the Three Kingdoms, which Bang! publisher DaVinci Editrice SRL claimed was a clone of their game.

Going off of traditional notions of copyright protection, one would have thought this a meritless case. Traditionally, game mechanics are not protected by copyright.The two games were aesthetically different – the rules text, character names and art, as well as the themes (Wild West versus Chinese themes) were not the same. The various character abilities and the game mechanics themselves, however, were exactly the same in many cases.

Going off of traditional notions of copyright protection, one would have thought this a meritless case. Traditionally, game mechanics are not protected by copyright. This type of intellectual property is solely in the realm of patents, which are uncommon in tabletop games (outside of the big players) due to their high cost. Copyright, on the other hand, only protects the original creative elements of a work. Functional parts (game mechanics, in this case) are not protectable.

There was some doubt cast on this notion, however, by a couple of cases that preceded the Bang! case. I detail these cases in this blog post from back when the Bang! case was originally filed. The court’s response to a motion in the case made it seem like they were open to expanding copyright protection for certain parts of a game’s mechanics, namely the powers of the characters and how they interact with each other.

Any hopes that this would change copyright protection for games, it seems, was entirely unfounded.

Summary judgment motions

Since the last post I wrote on this case, the two parties have conducted discovery (which is where they gather evidence for their cases, essentially), and have submitted motions for summary judgment to the court. A summary judgment motion is one that basically asks a court to rule on a case where there is no dispute as to the facts; the court only has to make a decision about the law.

In this case, the parties basically agreed on the facts, even on the fact that the games were essentially the same (barring the artwork and other elements mentioned above). However, they disagreed on whether those facts would lead to a ruling of copyright infringement. That made this appropriate for a summary judgment ruling. On April 27, 2016, the court’s ruling on those summary judgment motions was released.

Copyright protection for game mechanics

The court looked at the facts presented by the parties, including the undisputed fact that the games’ mechanics were essentially the same. The court pointed out the major statutory limitation to copyright protection, which is 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.

The court points out that “Unlike a book or movie plot, the rules and procedures, including the winning conditions, that make up a card-game system of play do not themselves produce the artistic or literary content that is the hallmark of protectable expression.” They note that past game copyright victories were won by parties based on infringement of visual appearance or other protectable elements. Pac-man’s gameplay, they recall, was not considered protectable back in 1982.


The court’s opinion on the case

Given these rules and precedent, the court looked at the issue in the case – that of the similarity between “the roles and characters and their interactions” in the two games. Ziko argued that these roles and interactions were no different than other rules and mechanics in the game, and therefore were unprotectable. DaVinci, on the other hand, argued that those roles and interactions were protected, using precedent from the Triple Town case.

According to the court, the plot and gameplay progression of something like The Legend of Zelda would most likely be protectable. Bang!’s gameplay doesn’t rise to that level.The court distinguished this case from the Triple Town case, though. In Triple Town, that court analogized the gameplay hierarchy in Triple Town to the plot of a movie. In doing so, they imbued it with copyright protection.

However, the Bang! court rejected this comparison in the current case. Rather than being like the plot of a movie, the court likened the character interactions of Bang! with something more akin to a game of basketball. They held that this is not protectable. According to the court, the plot and gameplay progression of something like The Legend of Zelda would most likely be protectable. Bang!’s gameplay doesn’t rise to that level.

The court also found that many of the abilities given to character cards in Bang! are “stock” abilities, which are not protectable. “Even if the Bang! characters’ abilities were not stock, they are still not expressive because they are essentially rules of game play,” the court held.

The court held in conclusion that, “The undisputed summary judgment evidence shows that Bang!’s characters, roles, and interactions are not substantially similar to those in LOTK. The aspects of the roles, characters, and interactions that are similar are not expressive, and aspects that are expressive are not substantially similar. ZiKo and Yoka are entitled to summary judgment of noninfringement.”

What does it mean for game designers?

Those hoping for a little stronger protection against clones are most likely disappointed with this ruling. However, it appears to be in line with established principles of copyright law.

The ruling does shed some light and clarify a bit of copyright law specific to tabletop game developers. This is great for those who have questions related to the copyrightability of their game mechanics, or their use of established mechanics. It doesn’t, however, negate the need for the consideration of existing patents when borrowing existing mechanics (if those patents exist).

It should be noted that this is only one case in one federal district in the 5th circuit. Other district and circuit courts could potentially rule differently. Nothing is ever truly the “law of the land” until it is ruled on by the Supreme Court, as the various circuit decisions don’t have precedential effect against the others. It also remains to be seen whether any appeals will be filed by DaVinci in this case. I’ll keep you updated here on the blog.

Have questions about copyright law and your game? Contact a game lawyer to set up a free consultation.

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Zachary Strebeck

15 Responses

  1. That sounds reasonable. Transferring the this to a slightly different topic, it’s similar to how software code is protected by copyright, but this does not extend to someone implementing the same algorithms from scratch.

    I’m very much in favour of that, otherwise the software industry would grind to a halt. It’s bad enough that these things are patentable in some jurisdictions, leading to infamous patents such as the one on a progress bar.

    1. I agree. While it’s not the best ruling for companies that want to stop clones, it makes sense given the limits of copyright law. Your example is a good one, I think. We don’t want to completely shut down the marketplace of ideas – we just want to prevent outright copying.

  2. I think it’s good. The original winning the case would open up a Pandora’s Box of lawsuits.

  3. Thats a realy sad news (luckily here in Germany the situation is not taht worse, still not as good as it shoudl be) . I agree that single game mecanics should not be protected, otherwies it would be verry hard to create something new. But the compositions of mechanics / konzept of the game should be. Otherwise the work and the intellectual propperty of game designers is worth noting and every could simply take our work.
    If we look at music for example, noone can protect a single note or bar, but of course a song is. Why should this be different regarding games?

    1. There are mechanisms in place (patents) to protect this particular type of thing. They have a much shorter duration than copyright, which is good – it doesn’t keep those particular mechanics out of the public domain for too long (though this is arguable, of course).

    2. I disagree, this is good for everyone. If someone can make a clone and outsell you, YOU LOSE. That’s the way of the world. And it’s not limited to toys and games, Oreos are a prime example of this. They aren’t the original sandwich biscuit in that shape and composition, but they are the more successful.

  4. At the very least, if two games have exactly the same gameplay with no additions in any of them, there should be some credit for the original on the later one. Like when making a cover of a song.

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