Variant: Copyright and its Application to Board Games

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A good friend of mine pointed me toward a Gamasutra article about a recent federal court decision out of the United States District Court for the Southern District of Texas. The case involved DaVinci games (makers of Bang!) against Ziko Games and Yoka Games who make Legends of the Three Kingdoms. DaVinci alleged that Ziko and Yoka copied Bang! wholesale and thereby violated its copyright.

First, a quick primer on copyright law. It has long been held that you cannot copyright ideas, but you can copyright expression of those ideas. For example, you can’t copyright the idea of a man living in a dystopian future where people are subject to a totalitarian government, but you can copyright 1984.

Although this is a fair distinction when applied to books, movies, and music, it can become problematic for other expressive pursuits. Copyrights related to architecture, for example, have been thorny in the past.

When applied to board games, things also tend to get a little tricky. You can’t copyright the idea of roll-and-move or the idea of a deck builder, but you might be able to copyright the way those ideas are expressed graphically (through images or icons) or the way the rules are written. Though some writings are entirely devoid of expression (phonebooks have been held to lack any expression that can be protected by copyright).

So, what do you do when someone copies every aspect of your game, creating a mechanical doppelganger, but changes all of the art, theme, and other obvious areas of expression? It doesn’t seem right that there should be no protection for the designer’s original mechanical ideas. But under a conservative interpretation of existing law, that may be all that’s necessary to avoid violating copyright.

DaVinci has alleged that Ziko and Yoka essentially stole Bang!. The competing game Legends of the Three Kingdoms is played with hidden teams. The Emperor (who reveals his role at the beginning), Ministers (who are on the same team as the Emperor), Rebels (who win when the Emperor is killed), and the Traitor (who wins as the last man standing). Identical to the Sheriff, Deputies, Outlaws, and Renegade roles from Bang!.

Moreover, in Legends of the Three Kingdoms, each player also gets a character with a special ability. And, as the suit alleges, at least seven characters have life points and abilities directly copied from Bang!. The only things changed are the names and artwork to provide a far east theme rather than a spaghetti western setting. Similarities continue with different types of cards that behave like Bang!’s brown and blue cards, weapons, and even beer. But, in every case, the artwork and names have been changed.

Procedurally, Ziko and Yoka (as Defendants) filed a motion to dismiss. Under Federal Rule of Procedure 12(b)(6), a defendant can have a case dismissed entirely if, taking everything in the complaint as true, the plaintiff still doesn’t recover anything under the law. Simultaneously, DaVinci filed a motion for preliminary injunction. If granted, it would force the defendant to immediately cease the infringing activity even before final resolution of the case on the merits. DaVinci would have to demonstrate four factors, the most important of which is that it is likely to prevail in the end.

The Court analyzed existing copyright law and pointed to a few recent cases where game structures in video games had been protected. The line of cases the Court relied on most were that the copyright of characters (in books and film) is not limited to the mere image and name, but also extends to the “attributes and traits” of that character. With that in mind, the Court turned to the copied Bang! characters. Yes, the names and the art had changed, but the “attributes and traits” – specifically the life points and special abilities – had been copied entirely.

The Court’s extended analysis of various other factors (including when a game rule is an idea and when it is an expression) will be interesting to legal geeks and game designers. But the extension of the “attributes and traits” element can lead to significant protection for any game that uses variable player powers.

On the other hand, the Court declined to grant DaVinci’s request for a preliminary injunction. Even though the legal door had been opened for DaVinci to win their suit, the Court was unsure that it ultimately would. To prove a violation, the copyright holder has to show that the copying would seem “substantially similar” to the average person. And, the Court reasoned, the changes in imagery alone may be sufficient for it to be dissimilar to the average person. So for now, the challenge continues.

It will be interesting to see whether this case resolves out of court or whether further precedent will be set.

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