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Copyrights, and patents

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lucasAB
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As some of you know, our company is in the process of producing a card game this year. Finding a printer is just about finished, art and the rulebook is wrapping up. But some questions have been aroused regarding copyrights, so I've come to you guys for some advice, suggestions, and help.

Here's the question: "We are printing a card game, and do not want the whole concept/art/design/rulebook stollen from us by another publisher. How do we prevent this?"

Here's the next question: "Our game includes a stunning swordfighting mechanic/concept that we would like to copyright in of its self. This mechanic could be used with various games, and we do not want it stolen by a company to produce a different swordfighting theme(example, Star Wars). How do we prevent this?"

Could any of you guys help us with this? Replies appreciated!

GamesOnTheBrain
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Can't Copyright Mechanics

You cannot copyright a mechanic.

It's remotely possible to patent a mechanic, but it is very expensive as well as unlikely that it will be granted.

MatthewF
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Copyright and Patent

Speaking here of US law, but it's very similar in most of the world:

lucasAB wrote:
Here's the question: "We are printing a card game, and do not want the whole concept/art/design/rulebook stollen from us by another publisher. How do we prevent this?"

Nothing can prevent someone from copying your idea. However, copyright law allows you to sue them and get paid for your loss of business. If you register your copyright -- http://www.copyright.gov/ -- you can also sue for damages to your good name, etc., beyond your actual business loss.

However, practically no one will copy your game. The odds of you making any money off your game aren't great, and your odds of making substantial money are even smaller. The odds of someone copying your game and then competing with you with the exact same game and them making any money are astronomically small, unless your game is the one in (literally) 50,000 that really takes off.

To sum: copyright protects you financially from anyone copying your game. Registering your copyright provides even more protection, and is quite cheap, $35-45.

lucasAB wrote:
Here's the next question: "Our game includes a stunning swordfighting mechanic/concept that we would like to copyright in of its self.

You cannot copyright a mechanic. You might be able to patent a mechanic, if it actually qualifies, but it is expensive and there's no legal precedent to show that it actually protects anything. Game play mechanic patent lawsuits have yet to be resolved in court, always being either dropped or settled out of court (if the person suing has more money than the person who would have to pay, or gets tired of paying for defense).

Almost inevitably you're going to make $3,000-6,000 more by not patenting your mechanic than by patenting it, by not having wasted that money on the expense of patenting it. In fact, saving that dollar amount could easily be the only way you make any money at all.

lucasAB wrote:
This mechanic could be used with various games, and we do not want it stolen by a company to produce a different swordfighting theme(example, Star Wars). How do we prevent this?

You don't prevent it. Mechanics are reused again and again. I'd bet money that your game uses multiple mechanics invented by others before you. Why should you be able to keep others from using your mechanic when you so freely use others'?

More, I bet that your mechanic is in some way an evolution of previous mechanics, none of which you had to pay for because none of those designers tried to protect them.

Legally, if game mechanic patents actually hold, that's how you'd keep anyone else from using it. But really, my opinion is that you should just make a good game and hope to do well with it. Make more games using the same mechanic if you want, or invent something new. If your mechanic is really that awesome and the game is really that fun, people will enjoy it, buy it, and you'll make money (assuming everything else is well-handled in the business).

rsnail
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Patents and Copyrights

Hello,

I have had some experience with copyrights and patents and it is best to consult a copyright or patent lawyer. (expect a big bill)

Most copyrights will only protect your characters, art, and stories in your game. Trademarks can be used to protect the name or title of your game.

Patents are tricky and expensive. You must be able to prove that your game is unique. Most patents need to be a solution to a problem. Example: you invented a new dice that never rolls the same number, until all the number have been rolled.

If you really think Star Wars would like your game, then pitch your game to them. You need to contact someone in their consumer products or licensing. Negotiate an inventors contract, then pitch.

Good-luck

Katherine
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copyrights and patents

If this game was patentable, the chance to apply for one has probably gone - it has been "made public" via a web page.

That is the down side of patents ... you cannot discuss the "idea" with anyone until the patent is in place, now if another designer comes up with a sword fighting mechanic ownership will come into question.

The IP Australia webpage is a goverment site that has easy to read, factual info on the different types of protection you can take.

check USPTO for USA and EPO for Europe .

If the protection info hasn't come from these pages it probably isn't true.

And dont fall for the "post something to yourself" for a date stamp - it is a crock.

MatthewF
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Patent Timing

shazzaz wrote:
If this game was patentable, the chance to apply for one has probably gone - it has been "made public" via a web page.

That is the down side of patents ... you cannot discuss the "idea" with anyone until the patent is in place, now if another designer comes up with a sword fighting mechanic ownership will come into question.


Well... not exactly. You have a year from the public display of the invention to apply for a patent in the US, if I recall correctly (99%, checking http://uspto.gov will verify). It's just that you have to be able to prove that you actually did invent it first.

Also, where has it been made public?

shazzaz wrote:
And dont fall for the "post something to yourself" for a date stamp - it is a crock.

It sure is.

Katherine
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copywrights and patents

um...

My apologies, I should have wrote; ...it has been made public via a web page and patented....

A sword fighting mechanic exists ... the "idea" is known. The fact that Lucas may have a better mechanic is irelevant. If it is remotely like the listed patent then he will need to get permission to use it.

http://www.freepatentsonline.com/7234701.html
http://patft.uspto.gov
search by patent number

MatthewF
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Patent Exists

shazzaz wrote:
A sword fighting mechanic exists ... the "idea" is known. The fact that Lucas may have a better mechanic is irrelevant. If it is remotely like the listed patent then he will need to get permission to use it.

I see what you're saying. Well, it is of course trickier than that. Lucas could easily contest the existing patent, if he found prior art to that 2004 patent. Like, say, from the 1980 game Swashbuckler. Not saying that that particular game would serve as prior art, but it might well, and there have been dozens (probably hundreds) of published games with a swordfighting mechanic over the years. Odds are fairly good that neither Hungerford's patent (the one you referenced) nor Lucas' would hold up in a real patent fight.

lucasAB
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Not really

"And don't fall for the "post something to yourself" for a date stamp - it is a crock."

I know someone in the credit card industry that won a lawsuit with this trick. Even though it may not be useful for the board game industry, I will try it along with many other forms of copyright. I was just throwing out the idea of patents, although I don't think we have the time/money to do that at this point. I guess we'll copyright the game/artwork/rule system, and provided the game has our company's logo on it, we should be fine(or company has all of the legal stuff worked out).

Thank you for your comments, I love getting your feedback!

apeloverage
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by the way,

registering copyright doesn't give you copyright - you're considered to have copyright automatically. It's a way of proving it, and in the US gives you the right to sue for more damages.

MatthewF
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Copyright Registration

apeloverage wrote:
registering copyright doesn't give you copyright - you're considered to have copyright automatically. It's a way of proving it, and in the US gives you the right to sue for more damages.

Yes, sorry if that was unclear. That's exactly what I meant when I said, "If you register your copyright -- http://www.copyright.gov/ -- you can also sue for damages to your good name, etc., beyond your actual business loss. " The "business loss" part you can sue for without registering.

gameprinter
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Copyright, Trademark, Patent

I attended several of the Seminars at GenCon last week. A mixed bag, at best, but occasionally useful. One of the panelists - the venerable Lou Zocchi, if I recall - was discussing copyright. Copyright protects your words. The problem is that if you say "Pass go and collect $200" and your imitator says "Collect $200 as you pass Go" it might not be considered as an infringement. Citing Col. Zocchi is NOT the strongest case one could make, but it's worth noting.

Copyright can be claimed at will. Trademark can be claimed (tm) or registered (circle R). Registering costs money and (I believe) is only done after the product has been released. Trademark will protect the look and feel of your game. Patents are expensive. I wouldn't bother.

If you are concerned about pre-release pilfering, have people sign NDAs. I occasionally have to sign one, even though for manufacturing I rarely need to know anything other than the physical dimensions.

None of these tools offer bulletproof protection. You have to have money to enforce them - and ask Hasbro if that helped them during the Anti-Monopoly trial in the 90s. That one went all the way to the Supreme Court, where Hasbro lost.

Take reasonable steps, but concentrate more on the selling/marketing of the game. No one copies a poor selling game!

MatthewF
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Lucky!

gameprinter wrote:
Take reasonable steps, but concentrate more on the selling/marketing of the game. No one copies a poor selling game!

Exactly! You're doing damned well if anyone wants to copy you.

Katherine
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LucasB is better off with

LucasB is better off with some form of protection if he intends to market.

People do take ideas in commercial world, poor selling or not.

They also copy in the design stages ...

I have vague recollection of a bgdf discussion where someone had posted a game design they were working on, less than twenty four hours later, a second designer came back with "I made your board" much to the original poster's charign.

It does not happen often, but it does happen.

MatthewF
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Hmm...

shazzaz wrote:
It does not happen often, but it does happen.

I defy you to show me one example of where it actually happened to a published game, or where an idea copied off of a design discussed here became a published game.

Katherine
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I would classify dogopoly;

I would classify dogopoly; sold by the games board company, a close copy of something else - to the point that a warning is on their web page advising that it is not made by Hasbro.

as to ideas from this site being published after some one else ran with it, not sure. Did Darkehorse get Samuel's Quest published? (see archive).

MatthewF
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Monopoly has been copied many

Monopoly has been copied many times, I won't argue that. It, however, is different than most games because it turns out that Charles Darrow, who sold the rights to Parker Brothers way back when, had not in fact invented the game, and as such Parker Brothers (now Hasbro) was unable to defend it against cloning as they never had the rights in the first place.

On the other hand, they had no problem defending Scrabble, despite having no patent on it, as they actually owned the copyright and trademark rights.

To clarify, the challenge I'm presenting is about patent. I have never seen any court case or example where a boardgame patent stopped someone from copying a game. Copyright is plenty, and if your game is super-successful, trademark the name and likeness. Don't waste money on a patent in the name of "protection" that is entirely unnecessary.

Katherine
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agreed - don't waste money

agreed - don't waste money patenting a game. As long as lucas B has tight copywright & trademarks (some form of protection) he should be fine.

bluesea
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Burten v. Milton Bradley Co.

MatthewF wrote:
...
To clarify, the challenge I'm presenting is about patent. I have never seen any court case or example where a boardgame patent stopped someone from copying a game. Copyright is plenty, and if your game is super-successful, trademark the name and likeness. Don't waste money on a patent in the name of "protection" that is entirely unnecessary.

If you want to sift through an actual case of intellectual property law as applied to a board game, there is a wealth of information in the links below. They are related to the case of Burten v. Milton Bradley Co. concerning the game Dark Tower, aka Triumph. Some summaries:

The suit was brought by two men who claimed to have presented the original concept for "Dark Tower" to Milton Bradley in the late Seventies, at which point, MB declined to pursue it. Thereafter, they claimed, MB independently developed the game based on their proposal. As part of the resolution of the lawsuit, Milton Bradley pulled the game off the market, and it was never republished.

and

In early 1981, the two inventors attended the annual two-week toy fair in New York City. There they saw the first public display of Dark Tower, Milton Bradley's new integrated electronic board game -- the first such game on the market. Burten and Coleman immediately concluded that Milton Bradley had stolen their idea and used it in creating Dark Tower. Milton Bradley denied this charge, and refused to pay any royalties. Dark Tower enjoyed great commercial success, while Triumph gathered dust instead of profits.

Burten and Coleman brought suit in Federal District Court in Rhode Island, claiming that Milton Bradley had misappropriated the trade secrets embodied in Triumph. Following a lengthy trial, a jury awarded them $737,058.10 for lost royalties.

Despite this judgement, Milton Bradley still had a powerful card to play. Based solely on the non- disclosure waiver form that Burten and Coleman had signed at Triumph's demonstration, Milton Bradley asked the court to set aside the jury's verdict. The company argued that this agreement disclaimed any relationship between the parties, and therefore precluded the establishment of a confidential relationship.

The "confidentiality" of the relationship was an essential element of Burten and Coleman's trade secret claim. The court found that without the written waiver, a confidential relationship would have existed, and Milton Bradley's behavior would have constituted a breach of that relationship. However, since the waiver did exist, the court found Milton Bradley protected from liability and set aside the jury verdict, observing that "Coleman and Burten made their bed when they eagerly affixed their signatures to the disclosure waiver form in order to induce Milton Bradley to look at their wares; they cannot sleep elsewhere."

Burten and Coleman appealed the district court's decision to the First Circuit Court of Appeals in Boston, which reversed the district court and reinstated the jury verdict. The Court of Appeals acknowledged that a confidential relationship, which would otherwise protect a trade secret, can be defeated if both parties expressly disclaim such a relationship. However, here the court found that Milton Bradley's non-disclosure waiver agreement was not sufficiently explicit to waive a confidential relationship. The court also found that the addendum obligating Milton Bradley to pay $25,000 if it held the game for longer than 30 days that Milton Bradley had not intended to waive any claim to royalties for use of the idea. Following this decision, Milton Bradley paid Burten and Coleman the amount determined by the jury verdict.

So there is a whole new legal term for us there: Trade Secrets. As if we weren't confused enough. By the way, for those of us who can remember, $737k in the 1980's was a hell of a lot of money!
By the by, I think MB took out a patent on Dark Tower.

EDIT: They did take out a patent. See it here:
http://www.boardgamegeek.com/file/download/33780/Dark_Tower_-_USD270650.pdf

EDIT No2: FYI http://www.boardgamegeek.com/geeklist/20416

Sources:
http://gozips.uakron.edu/~dratler/2006tradesec/materials/burten.htm
http://www.gesmer.com/publications/article.php?ID=157
http://well-of-souls.com/tower/triumph.htm
http://en.wikipedia.org/wiki/Dark_Tower_(game)

seo
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Samuel's Quest

I guess shazzaz is talking about this thread: http://archive.bgdf.com/tiki-view_forum_thread.php?topics_offset=1&forum...

And I think there's some confusion going on here. One thing is a designer stealing a design from someone else from the forum, and quite another a designer being inspired by another designer to the point of taking the original idea as a starting point to develop a prototype.
We're talking friends here (as I think there's at least some degree of friendship between Tom and Michael), we're talking about a game idea posted on a forum intended to discuss half-cooked ideas and spark interest among other designers, and we're talking about a prototype built for 4 and 5 year old sons and daughters to play.

I'm pretty sure Tom didn't intend to have the game published, but even if he did, I'm also sure Michael wouldn't mind, since his original forum post was just about a game idea, not a finished game. There's a huge difference there.

Katherine
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Thanks Bluesea ... At the

Thanks Bluesea ...

At the very least your response sends a message that designers need to make sure the waiver they sign doesn't surrender their rights to future claim.

Timely given that Willie B advises the company will ask for a waiver as protection against future claims.

gameprinter
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This is why...

A) I can't find a copy of Dark Tower anywhere for less than a zillion dollars.
B) Why Hasbro does not EVER meet with private inventors.

From my perspective the reality is that a huge percentage of all the games we print for people disappear without a trace. Some rightfully so, and some that deserved better. Thus, protect your game with copyright and trademark, document dates and processes whenever possible, but devote more time to marketing than rooting out possible legal problems in advance. Burten and Coleman probably wouldn't have sued Hasbro if Dark Tower had failed in the marketplace.

A couple years ago I heard Mike Grey and Mike Hurdle of Hasbro speak at ChiTaG. Between the two of them they could not remember a single instance in the past 30 years of someone's game idea being stolen. Dark Tower failed on appeal (Hasbro wins) and the Monopoly case won on appeal (Hasbro loses). In both cases, the verdict was that nothing was stolen.

Let's look at the wargame market for a moment. In the early 90s Avalon Hill released 'We the People' designed by Mark Herman, a game about the American Revolution. The game featured point to point movement, combat cards, and - uniquely - event cards that could be played either as historical political events or to drive more mundane things like moving troops and generals. AH released 'Hannibal', 'For the People' and 'Successors' using this system and was then purchased by Hasbro.

Subsequently, GMT Games released 'Paths of Glory', a card driven game by Ted Racier using much the same mechanics. It was a massive hit by historical/war game standards. Since then GMT and every other historical game publisher has released variations on this theme. Hasbro has not sued and no one anywhere has decried this as stealing. Is it stealing or is it simply an evolution in gameplay? I'd argue for the latter, but a case could be made for the former. I'd also argue that this evolution reinvigorated the entire historical market and created more wealth for the original designer as a result, but again, you could make the case that it was stolen.

bluesea
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I'll sell you mine

gameprinter wrote:
A) I can't find a copy of Dark Tower anywhere for less than a zillion dollars.

I'll sell you mine for less than a zillion dollars...well just less. ;)

gameprinter
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Less than a zillion? What a deal!

Working copies on eBay are going for $235 to $275 if the Buy It Now prices are any indication. Too rich for my blood! I suppose that's a lot less than a zillion, but a lot more than I am willing to pay for a game with 30 year old electronic components! :)

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