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Copyright Abuse?

December 4th, 2005

My regular readers (which I learned last night is one more than I original believed… hi Julianna) know that I worked last summer for Wizards of the Coast, the gaming company behind the hugely popular Magic: The Gathering and Dungeons & Dragons. Wizards, in turn, is owned by Hasbro. Hasbro is the Microsoft of the boardgame universe. While working at Wizards I was told that Hasbro controlled 80% of the gameboard market. We’re talking major market control.

Risk, the popular tabletop war game, is but one of the many games Hasbro owns. A few weeks ago an enterprising computer geek developed an online game conjoining the Google Maps API (which lets programmers create third party applications using Google Maps) with the game mechanics of Risk. Essentially Risk online.

Today I learned that Hasbro wasn’t all that pleased. They have sent a cease & desist letter to the developer. The letter claims two things: first, the game violates Hasbro copyrights, two, the game violates Hasbro trademarks. Now, I never actually played this online version, so I have no first hand knowledge, but with a few assumptions I think we can make a pretty good case that Hasbro is reaching for straws here.

The trademarks issue is solidly in Hasbro’s corner. But our hapless developer could have just as easily renamed the product “Online War Simulation” (the most generic term possible) and been in the clear. He could even have said “this game is like Risk” and been just fine under fair use. That doesn’t mean that Hasbro didn’t try to overreach even thought they had a winning argument. No, they also made a claim of dilution in their letter. Dilution isn’t something to be thrown around lightly… it requires a showing that the mark is very well known and that there is some sort of loss of consumer respect for the mark because of this third party use. Dilution is usually only brought out when there is a famous mark and someone else is using it in a non-related goods manner (like selling clothing under the brand Starbucks). Hasbro is just trying to scare them.

The interesting issue for me is the copyrights claim. Let’s look at the letter to understand exactly what they are claiming.

Your Game appears to copy elements of Hasbro’s RISK game and rules as well as its trademark. The RISK game, including the rules, is the copyrighted property of Hasbro. Hasbro also owns the trademark rights to the RISK name. Your unauthorized use of the RISK game constitutes copyright infringement in violation of 17 U.S.C. 501.

First, that’s bogus because the statute they cite is the infringement section which says you can’t violate this big list of items listed in a whole other section… they don’t bother to identify which of the myriad of items is at issue… not surprising, as we shall see.

I’ve seen how Wizards copyrights games and I’m guessing that Hasbro uses a similar model. That model boils down to “we copyrighted the game… and thus everything inside.” But as anyone who recently took Copyrights should know you can’t just copyright anything.

The game arguably breaks down into three distinctive pieces. First, the box and board artwork. The developer wasn’t using a box, so that’s out. Which leaves us with the board itself. Risk uses the world map divided into historically significant territories, all of which are public domain. Not much of a copyright there. Second, the text of the rules (distinctive from the rules themselves, which I’ll get to). The actually text is copyrighted, no question. Someone decided to put a comma here and a phrase there and that’s all expression owned by Hasbro. If the developer just copied that verbatim then he’s got a problem. But, if we assume he played the game a few times with his friends and then wrote new rules based on those experiences, Hasbro has no claim. Independent creation is a sufficient defense in these sorts of situations.

Lastly, number three, are the game mechanics (that’s the industry term… you and I know them as rules). There a lot of fighting about the proper IP protection surrounding game mechanics. I think that patents are the perfect fit. It’s a method of accomplishing something… bang, 20 years of protection. Problem is, patents are expensive and most game companies don’t bother (although Wizards got a patent for card games and makes a killing). So the game companies decided, ipso facto as far as I can tell, that you can also copyright game mechanics! I grappled with this extensively while I worked for them and eventually decided that it was okay because it essentially was an industry agreement that Game Company A would not rip off Game Company B. But when applied to a third party hobbyist I think that you’ve got to do the full analysis.

The full analysis says that copyright protect expression, not ideas. The written rules are an expression… the game mechanics are not. You want to get a patent, fine, pay for a patent. If not, the game mechanics are there for others to take and tinker with.

All that being said, the developer took down his game because there is no way he’s paying for a lawyer to defend against this arguably untenable legal claim.

probonogeek Uncategorized

  1. srcastic
    December 5th, 2005 at 15:01 | #1

    This of course highlights the abuse of copyrights. Risk has been around for well over half a century, and long since should have entered the public domain.

    As you mention, the trademark issue is different.

  2. Anonymous
    January 7th, 2006 at 01:52 | #2

    So if I read you correctly the game’s mechanics which would be protected by a patent are not sufficiently protected by its copyright. The reason that I am curious is because my friends and I have developed a Risk variant that goes far beyond the base rules, but at its heart are the same die rolling to resolve battles. For this reason, we have never tried to publish/copyright/bring to market this game. From your legal background, would you say that we could do this as long as we don’t copy the rules/expression and don’t use name Risk, the map, or any of the marketing visuals on the board, box or map??

    Very curious.

  3. Sean Kellogg
    January 7th, 2006 at 04:45 | #3

    Way too many unanswered questions here for me to give a useful answer. If you are serious about bringing your game to market you would be well advised to seek legal counsel. You’re going to have to before you market it for other reason, might as well make sure you have no IP problems while your at it.

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