In today’s world of high consumerism and corporate welfare, the owners of popular intellectual properties [IP] can get rich by merely selling the rights to allow other products to use their IP for branding and flavor. Billions are made from Star Wars licensing alone. The same can found with professional sports licensing.
While the sales are significantly smaller, the world of roleplaying games is not any different. Gamers will often buy product just because its cover is branded with their favorite system or setting logo. The product is often purchased without regard to quality or value.
Thus the keepers of lucrative IP zealously guard their rights and often bring hell upon those that would sip from their holy grail. There are entire organizations dedicated to keeping works out of the hands of the people (RIAA and MPAA may be the largest).
Dungeons & Dragons has a storied past of IP conflict including the TSR vs. Judge’s Guild, Mayfair Games, and Game Designer’s Workshop cases (which never made it to court). Intellectual property concerns have reared their ugly heads recently in the RPG Blogosphere with regards to who owns a comment on a blog and the 2008 Anthology of RPG Blogs currently being edited by Jonathan Jacobs.
The most recent ripple in the online community is the closing of Ema’s Character Sheets site. Wizards of the Coast sent a cease and desist letter to the popular site and the website complied by shutting down activities. If you would like to read more about it, Geek Related and the World of Alidor have more information.
Hopefully, this article will shed some light on what the forms of intellectual property protection are available and how they relate to table top roleplaying games. Though, I should say that I am not a lawyer and this is merely how I understand things and is in no way, shape, or form to be considered legal counsel.
IP Protection Intent
Article I, Section 8, Clause 8 of the United States Constitution states:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
The intent of Intellectual Property Law is to encourage new creative works by providing a limited time monopoly to IP developers, but after that period of time elapses, it allows these works to fall into the public domain to be utilized without restraint. IP law is not about protecting an author’s interests indefinitely or to protect corporate cash cows; however, current legislation would appear to prove otherwise.
Methods of Protection
United States intellectual property law affords protection of IP assets under four different methods:
- Copyright: protects the expression of original works of authorship (literary, musical, or artistic)
- Trademark: protects the use of logos, slogans, names, and trade dress for marketing
- Patent: protects against the use of an invention (machine), process, or compositions of matter
- Trade Secret: uses contracts and non-disclosure agreements to keep information secret
U.S. copyright law is pretty clear on whether or not a game can be copyrighted. It can’t be. At least the rules that is. Ideas cannot be copyrighted, only the expression of those ideas. So the manner in which the rules are presented and expressed are protected by copyright, along with any images published to support the game.
Also, works do not need to be registered to be protected. As soon as a work is fixed on a tangible medium (this could even be a webpage or a hard drive) it is protected by copyright. So the presentation of the rules of a game can be copyrighted, but not the rules themselves.
The United States Copyright Office Flyer 108 states:
Copyright protects only the particular manner of an author’s expression in literary, artistic, or musical form. Copyright protection does not extend to any idea, system, method, device, or trademark material involved in the development, merchandising, or playing of a game. Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles.
So while someone cannot recreate a publisher’s rulebooks wholesale, intellectual property law does allow the system to be utilized in another author’s work. Rules, systems, and devices are all the purview of patents.
Trademarks are the slogans, names, and logos used to market a product (Dungeons & Dragons, “Fast, Furious, Fun”, and the “D&D” logo). It also refers to the trade dress of the packaging of products which can include the three-dimensional shape, color, graphic design, and even smell or sound (shape of a bottle of soda, Fed Ex graphic design, and THX’s “Deep Note”).
Trademarks may be established through actual use in the marketplace or through registration. Which explains difference between the TM (not yet registered) and ® (registered) symbols, if you were ever curious.
It is important to note that a trademark may [eventually] be ruled as generic, and cannot be protected under trademark law. Much like salt is the common (or generic) name of sodium chloride. Such is the case with cellophane and aspirin, which were at one time trademarked brand names (victims of their own success). So a publisher needs to maintain distinctiveness with their trademarks, lest they become public domain through common use.
The Lanham Act permits a non-owner of a registered trademark to make “fair use” or “nominative use” of a trademark under certain circumstances without obtaining permission from the mark’s owner. The fair use and nominative use defenses are to help ensure that trademark owners do not prohibit the use of their marks when they are used for the purpose of description or identification (Publaw.com).
Trademarks are perhaps the biggest grey area when it comes to whether or not you can utilize the names of various mechanics and proper names from a roleplaying game. Is “Beholder” a trademark?
If a publisher truly wanted to maintain exclusive rights over the rules of a roleplaying game they invented, then applying for a patent would be a sure-fire method to do so. However, the rules would have to be patented within a year of their publication and would only last up to twenty years. However, a publisher would be able to patent each significant improvement of the rules, allowing a publisher to maintain a stranglehold on any current edition of their rules.
No company to date has been granted a patent for their rules that I am aware of. One of the primary reasons for this is the prohibitive cost of application and renewal fees involved in the process. One can easily spend nearly $8,000 searching and filing a patent application (IP Watchdog). I could also argue that the larger companies have done reasonably well protecting their interests with threats of litigation.
For more information on patents and trademarks, I recommend you visit the United States Patent & Trademark Office.
Trade Secrets do not really apply to any published roleplaying game, so they are not of much concern. Where they do apply would be for unpublished material that is still under development. If a company like Wizards of the Coast were developing a sourcebook for evil outsiders, they would most likely require non-disclosure agreements before they would allow any freelancers to begin work.
Trade Secrets are meant to protect IP by keeping it a secret during development, which prevents competitors from bringing similar products to the market. It would also apply to some secret in ingredient/process employed during the printing process (like a ritual cast upon the pages to compel readers to purchase more books).
I think it is fairly clear where I stand on the issue. I am a fair use advocate. While I think the Open Gaming License does a wonderful job at protecting both parties; it allowed game designers the freedom of developing game without worrying about legalities. I am of the opinion that most publishers do not even need it.