A legal look at Monopoly and “The Monopolists” – a guest post by Jeremy Robins

I consulted on The Monopolists, a book by New York Times journalist Mary Pilon, a couple years ago. The book traces the legal history of the Monopoly board game throughout the last century. Recently, a colleague named Jeremy Robins approached me about the opportunity to write about his legal insights into the book’s subject. I’m excited to post his article here on the Game Lawyer Blog!

Here’s Jeremy:

The book chronicles the history of one of the world’s most popular games – from its initial design as The Landlord’s Game by Lizzie Magie to its later development and marketing…The Monopolists is a great read for board game enthusiasts and those who are interested in the history of law. The book chronicles the history of one of the world’s most popular games – from its initial design as The Landlord’s Game by Lizzie Magie, to its later development and marketing by Charles Darrow, to the trademark infringement lawsuit between the designer of Anti-Monopoly and Parker Brothers.

Overall, The Monopolists gives a fascinating look into the golden age of board gaming. My only real issue with the book is that it doesn’t describe events in chronological order (Chapter 9 in particular jumps around like a freight train off its tracks), which makes following those events difficult at times. That quibble aside, being a wannabe board game designer and an attorney, I thought it would be interesting to do a two-part series on the legal issues that Ms. Pilon presents in her book, and see what other board gamers think.

The two legal issues I’m going to tackle are:

  • Was Lizzie Magie ripped off by Charles Darrow and Parker Brothers?
  • Was Parker Brothers ripped off by Ralph Anspach and _Anti-Monopoly_?

Was Lizzie Magie ripped off?

Answer: In a moral sense, maybe, but not in any legal sense of the word.

It certainly wasn’t nice for Darrow to claim he’d invented Monopoly all by himself and not acknowledge its true origin, or any of the hundreds of other people who helped contribute to the design – including Magie – but it certainly wasn’t illegal. If lying about inventing something was a crime, Al Gore would be in jail.

But is it legally actionable?

Throughout The Monopolists, Pilon keeps referencing the assignment of “rights” from one person to another, but U.S. law only recognizes four major rights when it comes to intellectual property: patents, copyrights, trademarks and trade secrets. By 1935, when Darrow sold _Monopoly _to Parker Brothers, Magie held none of these.

Magie obtained her patent for The Landlord’s Game in 1904. At the time, patents only lasted 17 years from issuance. This means that the patent would have long since expired by the time Darrow sold his updated version of the game to Parker Brothers in 1935. It also makes one wonder what George Parker was doing in 1935 when he purchased Magie’s patent, because he certainly didn’t need to. Presumably, George was trying to shield Parker Brothers from people like Daniel Layman and Daniel Lerch, whose game Finance _was an early derivative of _The Landlord’s Game.

For an interesting look into whether it’s even possible to patent a board game, check out Gene Quinn’s blog post, Patenting Board Games 101, and the subsequent comments.

Regarding trademark infringement, the name had been changed by other people by the time Darrow sold it. Trademark infringement requires the likelihood of confusion between the names of the original game and the alleged infringer. Here, the names are completely different, so there wasn’t any infringement.

This leaves only the issue of copyright, which it appears Magie never obtained.

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Would a copyright have even mattered?

Magie’s original copyright would have expired by 1932, so unless she renewed it, it wouldn’t have been active in 1935.In 1904, the copyright term at the time was 28 years plus a renewal time of 14 years, for a total of 42 years. Presuming that Magie copyrighted her work the same year that she patented it, these terms would have applied. In 1909, the copyright term was changed by law to 28 years, plus a renewal period of 28 years. Magie’s original copyright would have expired by 1932, so unless she renewed it, it wouldn’t have been active in 1935.

For arguments’ sake, let’s assume that she did renew it. Under present law, U.S. Code Title 17 § 102(a)(5), copyright protection exists in original “pictorial, graphic, and sculptural works,” which according to the U.S. Copyright Office, includes games and puzzles. These protections were first laid out in 1870 (American copyright law was originally concerned with written works and maps – amazingly enough, copyright protection was extended to photographs in 1865, five years before paintings and sculptures). That being said, the art used for Parker Brothers original version of Monopoly was designed by Franklin Alexander, so if anyone has a claim to copyright infringement for the art, it would be him, not Lizzie Magie.

Could Magie have copyrighted the design of the board?

Designs were first made copyrightable in 1870, under the same act that made works of art copyrightable. Under our present law, U.S. Code Title 17 § 1301(a)(1), the following it said regarding the protections of design.

“In general. — The designer or other owner of an original design of a useful article which makes the article attractive or distinctive in appearance to the purchasing or using public may secure the protection provided by this chapter upon complying with and subject to this chapter.

Under § 1302, protection is not available for designs that are:

  1. not original;
  2. staple or commonplace, such as a standard geometric figure, a familiar symbol, an emblem, or a motif, or another shape, pattern, or configuration which has become standard, common, prevalent, or ordinary;
  3. different from a design excluded by paragraph (2) only in insignificant details or in elements which are variants commonly used in the relevant trades;
  4. dictated solely by a utilitarian function of the article that embodies it; or
  5. embodied in a useful article that was made public by the designer or owner in the United States or a foreign country more than 2 years before the date of the application for registration under this chapter.”

Magie’s design of the board is arguably not original, and therefore in violation of subpart 1 above. The Landlord’s Game’s central design element is a track that runs along the outside of the board that players move along, which was based on Parchisi, a game designed in India in 4 AD. Compare the two for yourselves.

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The two are effectively the same, with the exception that the shape of the track being slightly different. However, it’s not the function that matters, but the design itself. As we saw from the recent case of DaVinci Editrice S.R.L. vs. Ziko Games, LLC No. 4:2013cv03415 – Document 73 (S.D. Tex. 2016), you can’t copyright game mechanics (more specifically, you can’t procedures and systems).

So did it look different from other board games of the time?

Two of the most popular games of the 19th Century, which predate The Landlords Game, are The Mansions of Happiness and The Checkered Game of Life (the first version of  Life); neither of which looks like Monopoly.

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But many do.

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Could Magie have gotten a copyright for a square surrounded by border of smaller squares? Probably not, as that seems like a very common pattern, and something that would run afoul of subpart 2 quoted above.

So if Magie wasn’t ripped off legally, what about being ripped off morally or ethically? After all, Pilon makes a great deal out of Lizzie Magie being a woman ahead of her time, trapped by a misogynistic society and constantly held back by her gender.

But was she?

Well, she wasn’t held back much because of her game design. The best you can say about Magie is that she was a one-hit-wonder. She designed two versions of The Landlord’s Game, only one of which became popular. She designed other board games that never caught on.

Charles Darrow wasn’t even a game designer, so I have no doubt that Magie trumps him, but that might not be saying much. Many people in the hobby game community positively despise Monopoly for a number of reasons:

  • it’s too long;
  • it has player elimination;
  • it has roll-and-move;
  • it’s too luck based.

There’s plenty of reasons Magie never became famous in her own time for making board games that have nothing to do with her being a woman.

Make no mistake though, from a design point of view, Monopoly _is fun. It’s not an accident that Monopoly has been the world’s most popular game for a century. It has an indirect _take-that element where, instead of deliberately doing things to harm your opponent, you do things to help yourself, which in turn harms your opponents. It has a wonderful two-for-one reward system where the purchase of a property rewards the player twice – first by allowing them to develop the property further with houses and hotels, and also by seeing that same property in front of them in the form of a brightly colored deed.

Additionally, it’s a heavy negotiation game. That negotiation negates a lot of the random die roll elements using player trades, much in the same way _Settlers of Catan _does. And it’s strongly thematic, letting people build their own little real estate empires.

How much of the fun of Monopoly was Magie’s doing?

It’s difficult to tell, but I suspect 50%. Obviously Monopoly has a lot of assistance from follow-on players that have further refined the game. This isn’t a surprise; all games are 50% designed and 50% playtested. It must have been fun enough to get people to play it in its original form.

I suspect that Magie is rather like an inventor who stumbles onto an invention while searching for something else. In an effort to make a political statement about the economics of the time, Magie happened to invent a rather fun game.

Did Magie fail to get the credit she deserved because she was a woman?

As Pilon points out, Charles Darrow was not the only person who was murky about the games true origin. Even before the Parker Brothers version, most people who played _Monopoly _had no idea who created it, a lot of them seemed to believe the person they learned it from invented it.

For modern hobby board games, it seems incredible that a game would only become popular 30 years after it was first introduced.Magie herself didn’t do much to promote or protect the game, aside from acquiring a patent. She didn’t shop it around much, or manufacture her own version and try to sell it herself. The bottom line is, she had 30 years to refine and further develop the game and the community, and instead she put it in the marketplace of ideas and set it free.

For modern hobby board games, it seems incredible that a game would only become popular 30 years after it was first introduced. It really makes one wonder how many amazing games are out that just need a reprint in order to be successful (ed. note – check out my colleague Justin Jacobson’s new venture with Rob Daviau, Restoration Games!).

Thankfully, with the release of books like The Monopolists, Lizzie Magie seems to finally be getting the credit she failed to receive back then. Oddly enough, if Charles Darrow hadn’t have done what he did, it’s unlikely we’d have ever known about Monopoly, Charles Darrow, or Lizzie Magie today. In a way, Darrow’s theft secured Magie’s legacy.

Wrap Up

Those are my thoughts. I would love to hear what everyone thinks, and will plan to get Part 2 out in a few weeks. I’ll discuss whether Parker Brothers was ripped off by Ralph Anspach and Anti-Monopoly.

Hello, it’s Zack again. Thanks again to Jeremy for that excellent post. Looking forward to the next one in a few weeks!

photo credit: Ravi_Shah 168/366 – Classic and SarahDobbs Monopoly pieces via photopin (license)

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