Board Games and Intellectual Property
I’ve been researching Intellectual Property (IP) law as it relates to board games. It’s a real minefield, with tonnes of contradictory and confusing advice on the internet, so if you’re looking for reliable advice, the best idea is to speak to a lawyer, but perhaps the following findings might help as a starting point (bearing in mind that this is strictly based on my own opinion and does not constitute legal advice – act on this information at your own risk):
There are primarily three forms of intellectual property that might apply to board games: copyright, trademarks and patents
Patents
- Patents deal with the registration and use of unique inventions – they seek to protect your ideas.
- It could be argued that a board game is a unique invention, in particular the rules, but in practice UK patent law apparently does not allow you to register rules, schemes or methods for playing a game as a patent.
- UK patent law does, however, allow you to register the apparatus for playing a game (eg. board, counters) in association with its rules, providing certain criteria are met.
- From what I gather, US law may differ in permitting the registration of game rules as patents, but I am not certain of this.
- However, regardless of whether or not it is possible to patent a board game or its rules, for most small publishers the legal costs of preparing a patent for registration will be prohibitive. For patents to be of any value they need to be prepared very carefully by experts who know exactly what they are doing, which will cost thousands, or even tens of thousands, of pounds.
- For these reasons, patents are unlikely to be a realistic form of intellectual property protection for self publishers and small publishing companies.
Trademarks
- A trademark is your brand. If your company trades under a particular name, which is recognised in the marketplace in which it operates, the company name is its trademark. Product names could also be trademarks and logos or graphical devices representing the company or product can also be trademarks.
- If another company uses your trademark in the same or similar marketplace to your own, this is known as “passing off” in UK law and is illegal.
- Registering a trademark in the UK costs around £200 and permits you to add the ® symbol to your logo or name, which can act as a deterrent against others using your trademark and makes it easier to prove you have right to use the trademark if a dispute were to occur.
- If you operate internationally, as many game publishers will, it is possible to register your trademark in other countries, using either the European Community trade mark scheme (for European countries) or the Madrid Protocol (for numerous other international countries). However, the cost may be prohibitive, with fees of €900 to file a European Community Trade Mark application and potentially more for a trade mark application via the Madrid Protocol route.
Copyright
- Copyright Law does not protect ideas, but rather protects the expression of those ideas.
- Basically, this means the artwork, written text and other aesthetic and artistic elements of the board game will be protected, but the rules and mechanisms of the game will not be protected.
- So in theory, someone could make a version of your game with different artwork, design elements and reworded rules and not be in violation of copyright law. It might not seem fair, but that’s the way it works.
- Copyright is automatically assigned to the creator of the work as soon as it comes into existence. You do not have to register anything in order to be recognised as the legal copyright holder of a work.
- The issue is not whether you own the copyright, but whether you can prove it in the event of a dispute.
- In the UK, as in many other countries, there is no official registration process for copyright, but it is advisable to lodge a copy of the game with a bank or lawyer, or to post yourself a copy by Special Delivery (the date on the postmark can be used to prove the game was in your possession at that time) to assist in proving copyright ownership.
- In the US, apparently posting yourself a copy is not accepted as proof of copyright, but they do have an official process for copyright registration, unlike the UK. I believe this costs around $50, but don’t quote me on that.
What about countries that don’t respect copyright?
Most countries in which European or US board game publishers are likely to operate are signatories to the Berne Convention, which means that you will be afforded similar copyright protection to the country in which the copyright originated. However, some countries simply do not respect or recognise copyright. China is a notorious example; if major car manufacturers cannot stop their designs being ripped off and sold in China then hobby game publishers don’t stand a chance.
Being pragmatic about intellectual property
The biggest issue for small game publishers is not so much whether they legally own the intellectual property to their products, but more whether they could actually afford to pursue an action or defend themselves if a violation were to occur. The legal costs of dealing with this may for many make it impossible to actually enforce their IP rights.
In my opinion, the emphasis should be on discouraging the theft of your IP more than seeking to take action once it has occurred. Registering a trademark could be helpful, as could ensuring you have proof of copyright, and simply having a good understanding of your legal position is certainly a good start.
Likewise it will pay to do some research up front to ensure your company and product names and logos are not too similar to existing trademarks and to ensure the creative assets in your game are not overly similar to those of existing products and creative works.
Being pragmatic about it, most small board game publishers will be operating within a limited marketplace, with limited potential for sales and profits. Combined with the high costs and difficulties involved in board game manufacture, it seems to me that there is actually relatively little motivation for anyone to copy your game once it has started to make sales and build a following - there are far easier ways for counterfeiters to make money (but that’s just my opinion).
You may be more vulnerable during the development phase of your game, before the game has been published, so it may pay to be careful about what information you share and who you share it with until the game hits the marketplace. And if you’re planning to make a print and play version of the game available, perhaps you might reconsider, as this format is unlikely to make much money due to its narrow niche market, and it makes it far easier to copy and illegally distribute the game – but then the same issues apply to PDF versions of books and they’re extremely popular, so perhaps this is taking paranoia a step too far. Worth thinking about anyway.
Be aware, however, that board game publishers do not apparently respond well to requests for non-disclosure agreements or similar conditions, and are likely to simply ignore the game you’ve asked them to consider publishing. Furthermore, individuals, such as play testers, may perceive you as being mistrusting if you attempt to impose rigorous contractual restrictions on them; they are providing their time and effort free of charge and through their own good will, so exercise your judgement wisely. Additionally, it may be in your interest to have these people spread the word about your game via blog posts and so on.
Useful links
- Hey, that’s my intellectual property (article on Gamasutra)
- Intellectual Property Protection for Board Games (article from The British Library Business and IP Centre)
- UK Intellectual Property Office
- Business Link Company Name and Trademark Checker (UK)
- Intellectual Property Office TradeMark Search (UK)
