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Preparing to Kickstart: PnP, copyrighting, etc.

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commadelimited
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Not trying to sound mysterious, but I'm looking for guidance on the unknown. I'm working on a card game that I'd like to release to Kickstarter this year. This will be my first game and I've gotten some good input from Gamelyn games regarding approach. He said "Build a PnP version as soon as you can and get it up on BGG. Once your page gets to 10k views, start your KS."

So that seems reasonable, but I'm concerned about releasing my game into the wild before it's protected (to some degree at least). Before I drop a PnP should I copyright the game? If so, how? Should I get a lawyer to look over anything?

This question doesn't really cover all of my concerns, but it's a good start, and I expect I'll have more questions as some of you more experienced members respond.

Thanks in advance.
andy

The Professor
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Off to a good start...

Andy,

If your page has 10K views, that's a good start but there's much to do.

First, I would first offer reading the blogs of James Mathe of Minion Games (along with Kickin' It Games, which provides a great primer for first time KS creators) and Jamey Stegmaier of Stonemaier Games. Both gentlemen have a wealth of information on their respective sites/blogs.

Second, check out the video put together by The Game Crafter (it's on the side-bar to the right), entitled, "7 Questions to Ask Yourself Before Crowd Funding a Board Game" as it provides some of the most essential things to consider.

Third, I would highly recommend creating a few prototypes of your game, and I've heard from a number of designers who have used The Game Crafter and have been very pleased with the results. While it's fine to PnP your game for wider play-testing, at some point players like to have the real feel and look of the game.

Finally, and this is something stated by many others, including the aforementioned recommendations...have it play-tested again and again. And when you feel confident that it's been play-tested enough...have it play-tested again.

I had asked the question regarding copyrights, patents, and the like with a friend and attorney last week while running a play-test in PA. The short answer is "no" do not have your game copyrighted, as it will not hold up in court if someone "steals" your idea as elements of games are essentially beyond the scope of a copyright. Save your money and invest it in artwork, a solid editor, and marketing.

From a personal experience, I've run two successful KS projects, currently serve as a Developer for Compass Games and a Developer for two independent Game Designers. There's a lot of work ahead of you, but if you do the research and pace yourself, it's an exciting endeavor.

Cheers,
Joe

Soulfinger
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The Professor wrote:I had

The Professor wrote:
I had asked the question regarding copyrights, patents, and the like with a friend and attorney last week while running a play-test in PA. The short answer is "no" do not have your game copyrighted, as it will not hold up in court if someone "steals" your idea as elements of games are essentially beyond the scope of a copyright. Save your money and invest it in artwork, a solid editor, and marketing.

It's $35 to copyright your game, which will pay for about 700 words of editing or a rough sketch from a decent artist. Copyrighting does not protect the mechanics of a game, but it does protect all of the non-functional and creative elements. Without one you have no substantive legal recourse even if someone were to steal your game outright, by selling POD copies of your pdf in a game store, for example. Your cost in legal fees would outweigh any actual damages that you are eligible to recoup. With a copyright, your ownership of the work becomes a matter of public record, you receive a certificate of registration, you become eligible for statutory damages and lawyer's fees in any successful litigation, and after five years your copyright is prima facie evidence in a court of law. Your copyright also extends to several other countries that our nation has agreements with.

To give you an example, up until last year, the mechanics for Magic the Gathering were protected by a patent. This has since expired, so anyone can produce a collectible card game that mechanically plays exactly like Magic. The filing fee for a patent is $130 with additional $100+ fees for the drawings included, but most people require a lawyer to draft and file the documents, which tacks on another $2k+ in expenses. That said, WotC still felt they had sufficient grounds to sue Cryptozoic over the latter company's game, Hex, on strength of copyright protection and trade dress infringement. This is because their copyright still protects the layout and arrangement of materials on the cards, artwork, and aesthetic themes. I'm not saying that WotC will win, particularly since this is a large company suing a small one, so the tactic is usually just to bankrupt the competitor with legal fees and drawn out litigation. WotC can bear those costs easier than lost sales to a viable competitor. Without that copyright though, they wouldn't even have had a case.

That is worth $35 to me.

The Professor
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True words...

Soulfinger,

No doubt the $35 is well worth it for the copyright, especially as patents last only 20 years. Again, I'm simply echoing the thoughts of an attorney who is not in the gaming industry. If one feels strongly about their game, it's certainly worth the cost, however, I'm unfamiliar of any direct theft in the industry during the past two decades.

You do point out a rather interesting aspect of the industry ~ the pettiness often associated with large companies for fear of losing a negligible amount of market share in an ever-crowded industry. Point taken on the copyright, especially given its relatively trivial amount.

Cheers,
Joe

-Eberhardt-
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Legal Information

Myth Busting: https://boardgamegeek.com/thread/493249/mythbusting-game-design-and-copy...

Quote from BGG Article (referenced above):

Copyright

Copyright protects printed works of artistic expression. You do NOT have to register a work for copyright protection, nor are you required to put a copyright notice on your work. You are automatically protected when your work is published (i.e. offered to the public).

Games, however, have virtually no coverage under US Copyright Law:

According to the U.S. Copyright Office:

Copyright does not protect the idea for a game, its name or title, or the method or methods for playing it. Nor does copyright protect any idea, system, method, device, or trademark material involved in developing, merchandising, or playing a game. Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles. Copyright protects only the particular manner of an author’s expression in literary, artistic, or musical form.

Material prepared in connection with a game may be subject to copyright if it contains a sufficient amount of literary or pictorial expression. For example, the text matter describing the rules of the game or the pictorial matter appearing on the gameboard or container may be registrable.

Other Helpful Links

Copyright: http://www.copyright.gov/
Copyright FAQ: http://www.copyright.gov/help/faq/faq-general.html

Public Domain: http://fairuse.stanford.edu/overview/public-domain/welcome/

Soulfinger
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The Professor wrote:I'm

The Professor wrote:
I'm simply echoing the thoughts of an attorney who is not in the gaming industry.

More importantly, does he specialize in IP? I'm not mentioning this to inflate the worth of my own opinion, which is just that of an enthusiastic layman. Having a surprising number of lawyer friends and dealing with countless doctors these past few years, I've learned that professionals tend toward specialization. Asking someone who specializes in Health Law about IP is like asking a History professor for help with an English question. The answer will likely be informed but is not necessarily qualified. The experience that drove this home for me was speaking to a surgeon about H1N5, only to discover that he was as knowledgeable about epidemiology as the FOX pundits he was parroting.

The Professor wrote:
I'm unfamiliar of any direct theft in the industry during the past two decades.

Which is strange since there is open discussion of IP theft on this site. People enthusiastically encourage others to borrow or steal mechanics from other games because the original innovator may have moral ownership but did not patent the functional aspects and has no legal protection under copyright law. Direct theft is rampant in the industry. It is just that game designs "inspired" by someone else's hard work is a deeply ingrained practice, so people take the ethics of it for granted, which goes to show how important any degree of legal protection is.

As far as copyright litigation goes, there is plenty of that. I'm too lazy to compile a longer list, particularly considering how much gets resolved out of court or by a simple cease and desist (as with this example: https://groups.google.com/forum/#!topic/turborisk/26p_SQWpACk ), but here is a list of some recent and relatively random copyright cases:

-- Bang! versus Legends of the Three Kingdoms
-- Games Workshop versus Chapterhouse Studios
-- Jeff Dee and Jack Herman (creators of Villains and Vigilantes) versus Scott Bizar, publisher
-- Scrabble versus Scrabulous
-- Parker Bros. versus Gay Monopoly
-- Mayfair versus the maker of Island Settlers: I love this one because of the lawyer's argument that the "rules create a protectable 'fable' that will then extend to the rules of the game that derive from the fable." Elegantly phrased.
-- Hasbro versus Ghettopoly creator, David Chang

-Eberhardt- wrote:
Copyright protects printed works of artistic expression. You do NOT have to register a work for copyright protection, nor are you required to put a copyright notice on your work. You are automatically protected when your work is published (i.e. offered to the public).

This part is misleading. There is a substantial difference between a copyright and a registered copyright.

-Eberhardt- wrote:
Games, however, have virtually no coverage under US Copyright Law:

The functional elements do not. The artist expression does. So, that guy who was launching a game about flipping over tiles to spell out words would have very little reason to copyright his work -- except that it's only $35 to do so. The game is nothing but mechanics. The creator of that Hard Days Knight game has much more motivation as there is an aesthetic element.

What I think is silly is that people look at copyright protection and observe what it doesn't offer them while failing to consider what they can do to maximize their protection under existing copyright law. Personally, I feel that the elements of creative and artistic expression have major consumer appeal. Integrate a lot of story fluff, strong characterization of the pieces, etc. that the consumer will see as integral to play. Mayfair's lawyer may just have been doing a fancy legal tap dance when he said it, but "rules create a protectable 'fable' that will then extend to the rules of the game that derive from the fable" really is brilliant advice for how designers should approach their games. Anyone can make a game about red and blue chits, but the copyrighted story elements are what make your red and blue chits so damn compelling. It's why WotC did so much work creating identifiable characters for MtG while gearing up for their patent expiration, or why GW has been swapping out generic identifiers for signature trademarks following the hullabaloo with the Spots the Space Marine suit.

For me, a big reason to register a copyright these days is to have clear authority should your game be reproduced in part or in full on the Internet. The legal status facilitates matters when asking a site like Scribd to remove content or sending out a cease and desist. Does that happen? Do small time games end up being distributed on sites like these. Absolutely. I see them up for grabs all the time.

kos
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Game mechanics are not protected (and nor should they be)

Soulfinger wrote:
Which is strange since there is open discussion of IP theft on this site.

I respectfully, yet strongly, disagree with your statement. I have been reading and posting on this site for many years and I have consistently seen the regular posters defending IP. For example, there have been many times over the years that an enthusiastic newcomer has written about their great idea for a Robotech/Star Wars/other-copyrighted-fictional-universe game, and every single time they are gently reminded by the regular posters that they must seek permission from the IP holder before publishing such a game.

Soulfinger wrote:
People enthusiastically encourage others to borrow or steal mechanics from other games because the original innovator may have moral ownership but did not patent the functional aspects and has no legal protection under copyright law.

And here is the key point with which you contradict your earlier accusation. Let me contract your sentence for clarity: "Mechanics [have] no legal protection under copyright law."

In this sentence you are absolutely correct. There are frequent discussions on this site about game mechanics, and these discussions frequently use existing games for comparison and explanation. These discussions are not IP theft, because there is no IP on mechanics.

Similarly, it is true that users on this site "enthusiastically encourage" others on this site to read, play, or otherwise research games similar to the ones they are working on. Indeed, I've seen at least a half-dozen such encouragements in the last week.

There is nothing, I repeat, nothing wrong with making such statements. Nobody's "ownership" (moral, legal, or otherwise) has been infringed, because nobody owns game mechanics.

Every art school encourages its students to research and learn from the artists of the past. Once the student has learned the basics, they can then apply the techniques to create something new.

The same principle applies to every creative endeavour, including game design.

The point at which a student moves into the advanced stage of learning is when they are able to "apply the techniques to create something new", rather than copying verbatim. I have seen hundreds of such inducements on this site, and long may it continue.

In summary, there are two key points which have been stated and repeated many times for many years on this site:
- Artwork, characters, settings, game worlds, etc are protected by copyright/IP. You cannot copy these unless you get permission from the owner.
- Game mechanics have no legal protection. You can copy/modify/recombine game mechanics in any way you like.

Regards,
kos

The Professor
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Informative

Kos, Soulfinger, and Eberhardt,

At least this has proven an informative thread and will hopefully assist the OP moving forward.

Cheers,
Joe

-Eberhardt-
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Soulfinger wrote:-Eberhardt-

Soulfinger wrote:

-Eberhardt- wrote:
Copyright protects printed works of artistic expression. You do NOT have to register a work for copyright protection, nor are you required to put a copyright notice on your work. You are automatically protected when your work is published (i.e. offered to the public).

This part is misleading. There is a substantial difference between a copyright and a registered copyright.

Information was duplicated from link to provide a excerpt for reference as I found it very helpful in dealing with a copyright attorney in discussing S.t.U. initially.

Art once published (Paintings/Prints/etc) are considered copyrighted. http://copyright.gov/circs/circ40.pdf Exceprt from link "A work is automatically protected by copyright when it is created, that is,
“fixed” in a copy or phonorecord for the first time. Neither registration in the Copyright Office nor publication is required for copyright protection."

If the entire link is read and the sub links within the document on BGG it will be more relevant and less misleading.

Soulfinger wrote:

-Eberhardt- wrote:
Games, however, have virtually no coverage under US Copyright Law:

The functional elements do not. The artist expression does. So, that guy who was launching a game about flipping over tiles to spell out words would have very little reason to copyright his work -- except that it's only $35 to do so. The game is nothing but mechanics. The creator of that Hard Days Knight game has much more motivation as there is an aesthetic element.

What I think is silly is that people look at copyright protection and observe what it doesn't offer them while failing to consider what they can do to maximize their protection under existing copyright law. Personally, I feel that the elements of creative and artistic expression have major consumer appeal. Integrate a lot of story fluff, strong characterization of the pieces, etc. that the consumer will see as integral to play. Mayfair's lawyer may just have been doing a fancy legal tap dance when he said it, but "rules create a protectable 'fable' that will then extend to the rules of the game that derive from the fable" really is brilliant advice for how designers should approach their games. Anyone can make a game about red and blue chits, but the copyrighted story elements are what make your red and blue chits so damn compelling. It's why WotC did so much work creating identifiable characters for MtG while gearing up for their patent expiration, or why GW has been swapping out generic identifiers for signature trademarks following the hullabaloo with the Spots the Space Marine suit.

For me, a big reason to register a copyright these days is to have clear authority should your game be reproduced in part or in full on the Internet. The legal status facilitates matters when asking a site like Scribd to remove content or sending out a cease and desist. Does that happen? Do small time games end up being distributed on sites like these. Absolutely. I see them up for grabs all the time.

There are three things that need to be done:

1- Copyright of Mechanics
2- Trademark of Logo
3- Protect you work when you find an infringement

Please see the entire BGG link as they speak about art/rules/mechanics/etc. at length and sub links are provided with reference.

The Professor
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Great post

Eberhardt,

That's a great, concise primer on the topic for anyone in the industry...thanks again for posting!

Cheers,
Joe

Soulfinger
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kos wrote:And here is the key

kos wrote:
And here is the key point with which you contradict your earlier accusation. Let me contract your sentence for clarity: "Mechanics [have] no legal protection under copyright law." . . . In this sentence you are absolutely correct. There are frequent discussions on this site about game mechanics, and these discussions frequently use existing games for comparison and explanation. These discussions are not IP theft, because there is no IP on mechanics.

There is nothing, I repeat, nothing wrong with making such statements. Nobody's "ownership" (moral, legal, or otherwise) has been infringed, because nobody owns game mechanics.

Let me rephrase my point since you seem to have misunderstood. To begin with, I didn't intend anything as an accusation or condemnation. I'll steal a good idea the same as the next guy, but I don't consider it wholly ethical just because it isn't against the law. To me, borrowing an idea for a game mechanic is like finding ten dollars on the street, something I may do but also find to be a moral conundrum. Fortunately, the law has changed many times to affirm our evolving standards of human decency. I hope that some day the law will extend greater protection to the works of game designers. This could happen, as IP law is a relatively recent innovation in a historical sense. To argue from a Utilitarian perspective, better protection would give incentive for better games with fresher ideas rather than the insipid nature of cloned titles "inspired" by the innovations of their peers, although this attitude proves contrary to how IP law has been purposed until quite recently.

By IP, I meant "a creation of the mind," the notion of ideas as intangible property, not the exclusive rights afforded to IP holders that constitute IP law, as you were referencing. An idea that originates with you is your intellectual property even if U.S. law accords game mechanics as much protection as the personal property of slaves in mid-19th century Georgia, who likewise couldn't own what they created. Of course, no idea is original and people have the same idea all the time, which makes demonstrating a superior claim so important when it comes to legal matters. Your position, as I understand it is that there is nothing wrong with taking something from someone if they have no legal right to it. I disagree in that I do think that there is a moral consideration outside of the law. From a Lockean standpoint, that person has put hard work into constructing their game mechanic, certainly more work than Stephanie Meyer put into writing Twilight, and as such deserves to profit from it.

commadelimited
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Wow. Thanks a lot everyone.

Wow. Thanks a lot everyone. I've skimmed every post in this thread, and I'll be reading links in more detail. I just wanted to take a minute to say thanks to everyone so far.

Since it appears that the act of me making my game available for download makes it copyright, I'd like to ask a few follow up questions. Feel free to suggest a new thread.

• Here's my cards so far: http://startupcardgame.herokuapp.com/
• Here's my rules so far: https://docs.google.com/document/d/1G3Vx2J7sMREPz76afXlxMbyx5ztOMpcQrGtY...

I've got almost all of my cards "done", not counting artwork. I feel decent about the mechanics so far, but I haven't yet playtested this game. I plan on doing that over the next 2 months with various groups of friends.

So my question is this...given where I'm at right now, is it reasonable to think I could run a Kickstarter this year?

The Professor
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You've only started this road trip...

Andy,

While you have finished the cards (this I'm sure is a typo: "Marketer
Administrative I can make anyrhing look interesting") and the rulebook, play-testing is one of the most essential things you need to accomplish in the months ahead. I've run successful KS projects and they're a blast...but I've also run one unsuccessful campaign and in retrospect, I knew that I had rushed things a bit.

Definitely take the time to read all of the posts...Jamey does an outstanding job in combining around a dozen essential posts and Kickin' It Games provides a laundry list of things to do in preparation for running a KS. Most notably, the Game Crafter Video cites solid numbers (and ones with which I, as a Developer would agree) regarding play-testing. You want your game play-tested about 100 times by about 100 people. Also, play-testing appears more than any other singular piece of advice.

It shows up in almost every thread regarding board game design and development...even Tom Vasal has a Top 10 list of "Things Every Board Game Designer Should Know"...and it's right near the top of the list. We're excited for you...but we also want you to succeed. Take the time you need...and KS the project only after you've done all of the homework.

Cheers,
Joe

commadelimited
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Great thanks! I've got my

Great thanks! I've got my work cut out for me. Thanks for all of your input.

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