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In the game industry, copyright, trademarks, and patents don’t work. We need something else.

Recently, a federal court in Texas handed down a judgment that game mechanics aren’t covered by copyright laws. The makers of the card game “Bang!” had brought the case against Ziko Games’ “Legends of the Three Kingdoms” for copying their game mechanics with a new theme. It’s old news that a copyright can’t protect game mechanics, so I wasn’t surprised. Trademark wouldn’t have helped, either.

Regarding patent law, the picture isn’t a lot rosier. The blog article I read about this, from BGD Legal (who should change their name to BGG Legal, perhaps), mentions that “Patent law can protect the rules and methods of game play, and patents directed to methods of playing card games have been issued (Magic: The Gathering, Apples to Apples). However, the courts’ evolving interpretation of patent-eligible subject matter has made obtaining patent protection on rules and methods of game play more challenging.” And it’s not uncommon for a patent to run your budget dry ($10,000-$20,000). Even a provisional patent cost me $700, once (through a law firm specializing in patents).

So let’s face it. For small game manufacturers, we’re generally screwed for game mechanics protection. If we (the game industry) need to come up with some brand new protection besides the inadequate copyright/trademark/patent routine, we need to look at other industries with similar problems and see what they’ve done. I know a lot of people out there enjoy the frontier-like feel of being able to pick and choose game mechanics and meld them into something brand new. I want to see that continue, myself. Some of the best games in the world exist because of that exchange and melding of ideas. And I know this subject is controversial, and by the time I finish here, I’m going to introduce some extremely controversial ideas. I’m not trying to push them, I’m just trying to open the conversation to see where it goes.

So how do other industries operate? Well, because everybody likes examples in groups of three, here are three for you to chew on. The music industry (conflicts about “similar music” and plagiarism). The software industry (conflicts about similar coding and processes). Machinery (taking a bunch of patented processes and combining them).

What do other industries do?

MUSIC

With only a dozen different notes to organize, you would think that it would be nearly impossible to write a song without accidentally copying someone, and the fact that most of the combinations of notes will suck reduces your options even more. Various rhythms and harmonies can mix this up a lot, and yet, lawsuits for plagiarism are rife in the music industry based on similar lyrics and similar note/rhythm sequences. Imagine if the game industry functioned this way and that there were only a dozen basic game mechanics to choose from. Well, why doesn’t it? The difference is that we have hundreds of “notes” to choose from. But still, how is this different from a sequence of notes creating a pleasing sound, or a sequence of player actions creating a pleasing game experience? Rather than defining the text and graphics of the game as the copyrightable material, could we define a mechanic as a “phrase” or “sequence of notes” in the game, thus giving it copyright protection? Could we establish a list of “jingles” in the game industry that copyright law would recognize?

piano

As with music, many game mechanics have been around for hundreds of years and would be public domain. Dice rolling, putting pieces on the playing board (Go), moving pieces along a path (many games in the 1800’s), and so on. If I wanted to write a music piece, I might start by plagiarizing some classical piece from the 1800’s so as to avoid any chance of copyright infringement. Likewise with games; if each mechanic was treated as a sequence of copyrightable note sequences, then I’d use those mechanics that already were provably public domain. Even card drafting has been around much longer than one might think (Granny’s Kitchen is an old poker game that drafts cards from a common pool, so you build a poker hand as you play). If such a system of copyright were formalized, it may be difficult to establish the nuances of one mechanic over another, and whether it was derivative or not.

SOFTWARE INDUSTRY

Little chunks of code are like little machines, each one performing a certain function. Plagiarism can be fairly easy to establish in the computer industry where long sequences of code are duplicated, but as everyone in the industry knows, you can usually perform a certain task numerous ways. More recently, the functionality of the code and the task it performs have caused bitter fights in the industry. One example is Amazon’s patent on their “1-Click” action on their website. It’s hard to believe that something this simple could have a patent on it. Ebay has a patent on its online auction process, while Paypal has a patent on the way they move money around, though clearly there are other online auction houses and pay services available. So even though we have a wide variety of ways to write the rules (code), they have protection on their “game mechanics” (the end process of the code). Why doesn’t this translate to the game industry?

Roborally

It does, in some respects. Some game companies have deep enough pockets to patent some game processes, like Wizards of the Coast when they patented the MtG mechanics. So, game designers could go along and patent every new mechanic they create, but this would be hugely expensive and only offer protection for 20 years (or 14 for a “design patent”). But you would rarely recover the cost of the patent, and you would have to be able to pay the lawyers to protect it in court when someone else infringed on it. If the game industry could modularize a game mechanic, such that the company using that mechanic could license it, like licensing software code, then that could function much like the aforementioned music industry analogy, without obligating the creator of the mechanic to purchase an expensive and possibly ineffective patent.

MACHINERY

In some respects, this is one of the strongest analogies for the game industry. You take a bunch of patented devices, put them together, and they perform a certain function. Generally, the function they perform, like a hay bailer, isn’t something you can patent, it’s the way the machine does it that can be patented. With games, the end goal is essentially the same for all games; one player wins using the “machine” of game mechanisms that have been put together to provide a fun game experience. So you can have patented parts and a patented overall process in a machine, but the way the pieces are painted isn’t really relevant. Back to the start of the article with the example of “Bang” and “LTK”, we would find that the individual mechanics are the same, the overall machine operates the same, but the paint is different.

P1010028.JPG copy

As with the other two examples (software and music), we see a need to somehow modularize the game mechanics into bite-sized identifiable chunks, recognizable riffs, object-oriented modules, that can be protected under relatively inexpensive copyright law. Or something new. A registry of public domain and private game mechanic modules. Rules to modify existing modules, perhaps. Grandfathering any mechanic over 20 years old. Or modification of existing copyright law so it recognizes each mechanic as a word in a new language of game design. I’m sure there are many of you out there that don’t think this is necessary and would create an onerous load on the industry, and that we should continue as we have been. I could see that happening; it’s one of the things we’d have to avoid during implementation.

But these are just some thoughts to start the conversation.
What are your thoughts? What do you think would work?

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Tom Jolly

Game Designer at Wiz-War, Drakon, Diskwars, Cavetroll, Vortex and More

Electrical engineer, writer, game and puzzle designer. I’ve an interest in physics, space travel, fantasy and science fiction, hiking, bad jokes. I enjoy having a pint or two with friends on occasion, usually with games involved.

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  1. Paul on June 13, 2016

    There is no reasonable way to recover damages (as neither the original designer or the infringer has much money) – and, honestly, anyone with half a brain will make it impossible to get anything anyway (operate as a corp, pay yourself 100% of the revenue, nothing but physical assets which are virtually worthless remain to go after).

    The laws aren’t on the side of mechanics. Furthermore, the prohibitive costs of protecting those rights would be beyond all but the very well funded anyway.

    The *best* way to deal with this is community awareness and licensing. Simply put, if every company who had a game they thought was all that provided a licensing fee contract (open to anyone) based upon the size of the production runs of the derived product – they would be able to profit from other’s work based on their work and, it being widely known and community supported, would gain the support of the community (everyone wins). Those who refuse to apply for the licensing fee can first be shamed in the community, second, have the main companies form an alliance and essentially tell distributors whomever carries infringing products will lose the ability to carry their products, third, setup an appeal process (with a third party arbitrator) who would rule out abuses from existing manufactures (for example, “hey, we have a Cthulhu game, you can’t make one” which would be too vague) and, finally, fourth, they can file a lawsuit – after going all of these steps, the suit should be less expensive (you already have discovery done with the arbitration).

    None of this requires changes to laws (which always favor cronyism) and leverages the community and social media. It does require people put their ego’s aside (but *my* idea is so awesome no one should be able to do anything remotely like it cause it is soooo unique) because there is nothing new under the sun, everyone’s work is built on other people’s work one way or another. Of course, this is exactly why this wouldn’t happen, everyone thinks they are “special”. But that would actually help their work (wonder why d20 was so popular and the explosion of games that helped DnD until they ruined it w/v4). More games bring in more people which increases the pool of potential buyers which enlarges the economic pie for everyone to take part in.

  2. Guilherme Pinto on June 13, 2016

    An good way to go now could be using Creative Commons licenses. They allow you to protect your creation (the game mechanics, rules, illustrations, etc) and still leave it kind of open for other people to create new stuff based on your creation… The change it would bring would just have to cite, just like in scientific papers maybe, the parts that you have adapted from other sources into you game.
    IMO, creative commons are the way things will go in the future, not only in board games, but everything else too =D

  3. John Shulters on June 13, 2016

    Hi Tom. Thanks so much for the insights on this topic…I know it’s been a hot one recently. I think a lot of creative folks (especially low-budget indie ones) get a little itchy when we try to come up with new regulations for the “art”, while at the same time more established designers long for better laws to protect their hard work and monetary investment. It certainly seems that the current state of affairs leaves creatives in the lurch when it comes to protecting their ideas (and products) from copy cats.

    I wonder if we as an industry can try to self-regulate, sort of like how the video game industry does with ratings (which seems to have done a fairly decent job providing information to the general public to make an informed purchasing decision, especially for kids). There are a lot of industry experts, influential figures, and alpha gamers that know a lot about the history of games and the current state of the hobby. If we provided a common repository or destination for this shared knowledge (maybe part of BGG, but probably needs to be more public-friendly), perhaps it would facilitate better public awareness of plagiarism and the like. Not that we necessarily need to have a public square for shaming copy-cats (lots of us, me included, have inadvertently created something new that bears resemblance to previous material we were unaware of). But if we could bolster those creators who are blatantly copied and who don’t currently have the support and awareness of the public, could we perhaps make it less appealing for copy-cats to enter the market knowing there are watchdogs looking out for them?

  4. Lewis Pulsipher on June 13, 2016

    Tom, I enjoy most of what you write, but this focus on mechanics, as though a game is just a collection of mechanics, is somewhere between wrong-headed and foolish. But even if individual mechanics were the heart of games, your suggestions would amount to disaster.

    Stith Thompson’s book “Motif Index of Folklore Literature” – a zip of the revised version is less than 1,900K – was an attempt to list *every* plot point in *every* bit of folklore in the entire world. If someone tried to do that, listing game mechanics, it would be a much smaller list. Music, on the other hand, doesn’t have just a dozen notes, owing to many octaves and the timbre of different instruments. There’s more room there than in game mechanics. Do you want games to be buried in litigation? Do you want only a small number of games published each year, the ones that are either extraordinarily unusual, or that are published by people with deep pockets? Do you want to stifle innovation (innovation is highly overrated, it’s true)? Even if laws could be arranged, why subject the industry to a field (US litigation) where money is *far* more important than being in the right? What a bad idea.

    Intellectual property law is designed to protect creators, but not at the expense of stifling all creation. That’s why you cannot copyright game ideas and methods, and why even patents are fool’s gold (see the screencast referenced below)..

    Keep in mind also, the USPTO is broken. Years ago it was required to self-fund: the result (of course) is that they approve far too many doubtful patents, in order to make more money! Not surprisingly about two thirds of patents are invalidated when challenged in court.

    Free screeencasts:
    Game Patents are a waste of your time: https://youtu.be/7BByIE1LO2U
    What is “IP”? https://youtu.be/Iv2wFvPN2EQ

  5. David Liu on June 13, 2016

    Well, I think the result would be that you will find that most games would be consisted of 90% mash-ups of existing mechanics, and only about 10% original new mechanics… Sure, a repository that documents the 10% innovation a designer adds to the world of boardgaming is nice, but for the uneducated general population, they will probably view that as justification to do more Bang!/Cards Against Humanity clones, since “Most games are less than 20% original” in the first place.

  6. Brandon Raasch on June 14, 2016

    Tom, great article. I will wait for part 2 for my long rant. One early thought; your focus on protecting the rules (mechanics) over the art and imagery (theme) is what designers believe in… while the less ‘educated’ masses (and courts) just see a board with dice that does or does not ‘steal’ a well known character. Theme yet again rears it’s ugly head…
    @Paul- nailed it!
    @Guilherme- Open License is why Paizo was crushing WoTC with Pathfinder. Open license everything…
    @Lewis- great Youtube. Breaks my heart that movies aren’t worth indie designers, I am going to try to break that one…

  7. Eliot Hochberg on June 19, 2016

    Or, we could use the system comedians use. And which the gaming industry sort of already uses:

    Shaming

    There are rampant rumors about some comedians stealing material. And comedians and comics are definitely sensitive about it. But rather than sue one of their ranks, if someone can actually prove a joke was stolen, the stealing comedian is outed, and it effects their relationship with the whole comedy community.

    I think the idea of registering mechanics to at least acknowledge which ones are used where is a good one. Then, if a game designer actually comes up with something new, the list could be referenced. The designer could be asked by other designers if they can use the mechanic or not.

    And if a game has all the same mechanics in the same order as someone else’s game, that designer can be warned and then if the warning is ignored, shunned.

    It’s probably all we have.

  8. Tom Jolly on June 20, 2016

    Thanks for all the comments, everyone. This discussion will inform and shape the next entry (when I finally get around to writing it). There are some interesting ideas here!

  9. Tom Jolly on June 20, 2016

    Also interesting to note; Bang has 18,000 comments on BGG, while LTK has about 500. This reflects on actual sales. Whether this was a function of the lawsuit, shaming, duration on the market, or the “got there first” effect, it’s interesting to observe.

  10. Isaac Shalev on June 30, 2016

    Before we try and solve the problem, I think we should articulate what it is and quantify it. I’m not sure copying is really a problem in this industry.

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