Legal implications of cloning a board game
I want to build an electronic version of an existing popular board game that will use the same game mechanic and follow similar rules, but without requiring a physical board to play or any of the gaming figurines.
I followed the Hasbro vs. Scrabulous debacle and I would like to avoid a lawsuit, even though if my version were to be successful, it would be in their best interests to acquire it. That is not my aim, but plenty of fans will appreciate an online version which the publisher is very unlikely to pursue.
- What are the legal implications of blatantly using a game's rules and building an electronic version? There are a myriad of "Monopoly" copies. Do they pay licensing fees?
- What is considered fair-use in terms of the registered trademark? Am I allowed to use the game's name in any way as long as I declare it is an unofficial version?
- To avoid potential legal repercussions, do I need to "nudge" any rules or gaming terms? Scrabulous nudged their rules a bit and relaunched as Wordscraper. Is the name the biggest issue?
- Is there any just cause for prosecution if I own a domain name with the game's title in it?
I would love to build and play an online version of this game with my friends and it is highly unlikely that the game's publisher will even think of developing an online version, not within the next ten years.
What are the legal pitfalls when building a digital version of a fun, popular board game and publishing it online?
Update: I want to make it clear that I do not intend to willfully infringe on or squat on the publisher's trademarks or property. I am asking this question specifically to steer clear of any unfair use or infringement.
My IP Research
From what I've read on intellectual property (I'm no IP lawyer, so correct me where I'm wrong):
- Game mechanics cannot be copyrighted any more than an idea or a mechanism, but...
- You can patent a mechanism, which is sometimes done for games (read WotC card tapping).
- Particular pieces of text and images can be copyrighted.
- Trademarks can prevent similar usage for similar purposes, which was definitely an infringement for Scrabulous and in this case a domain name containing terms similar to a trademark would be an infringement.
...build a new game on a different (online) medium that is based on an existing game mechanic. A jarringly similar clone of the board game in question is currently published under a different brand with:
- an identical core game mechanic,
- the same packaged items,
- a different board with changed artwork
- slightly altered rules.
If that's legal, then surely a web application following the same game mechanic would not infringe as long as there are no utility patents in place on mechanisms (whether enforceable for software is disputable) and no trademarks are infringed?
So now I have a (draft) list of things not to do.
IP Precautions:
- Don't use any names (including domains) similar to existing trademarks.
- Don't copy any art or text without permission.
- Don't misrepresent any affiliaton.
- Alter rules where possible when implementing an existing game mechanic.
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Have you tried the obvious - coming to a license agreement with the publisher? You might find a small royalty on sales is all that is required. (Keep in mind that an online version might increase sales of the board game, so both you and the publisher would win out. And that way you could use the actual name, the same rules, etc.) – Mike 14 years ago
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Should I build a game under a different brand first and then approach them to brand it, or should I first approach them empty-handed at risk of being turned down with nothing on-hand? – Pate 14 years ago
4 Answers
Short overall answer: You are heading toward intentional copyright and trademark infringement.
Responding to your specific Qs:
- By copying the rules (by which I mean the written rules that the user reads, rather than the mechanics of the game) you will be committing copyright infringement. Yes, there are many Monopoly licensees - please see the Wikipedia article at http://en.wikipedia.org/wiki/Monopoly_%28game%29.
- By using the trademark, even with a disclaimer, you would be committing trademark infringement. Such use would not be considered fair use. (Copyright and trademark fair use under U.S. law are discussed in "The 'Fair Use' Defense: One Term, Two Different Meanings" at http://dana.sh/9iL51T.)
- Minor changes will not suffice to avoid copyright infringement - the revised rules will be a derivative of the copyrighted work, and creating derivative works is an exclusive right of the copyright owner.
- You may be considered a cybersquatter under ICANN's Uniform Domain Name Dispute Resolution Policy (UDRP); if so, you could be forced to turn the domain name over to the trademark owner. Please see "How to Defeat a Cybersquatter" at http://dana.sh/cfBZJU.
Disclaimer: This post does not constitute legal advice and does not establish an attorney-client relationship.
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thanks for the great, accurate and precise answer. – Alain Raynaud 14 years ago
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Thanks for the insights - I updated my question in response. With regards to #3, how are game rules protected by copyright and how is that different from a core game mechanic or idea? Short of copying a booklet's exact text (which is silly), how does a game system based on an existing game's rules infringe copyright? – Pate 14 years ago
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Yes, please clarify on #1 and #3. The US Copyright Office says: 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... Dana, how would you apply your notes to the Scrabulous case? – Henry The Hengineer 14 years ago
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Responding to FreshCode's (and implicitly to NeoTycoon's) Qs: I originally assumed that "rules" referred to the rules as expressed (written) for the existing game, i.e., what a user typically would consider the rules. I believe, from your additional comments, you mean "rules" to refer, instead, to the mechanical aspects of the game, rather than a written expression of those mechanical aspects. I see no copyright infringement from using the same mechanical aspects. – Dana Shultz 14 years ago
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@Dana I think you should rephrase or define your use of "rules" in your answer because anyone that I know who speaks of the "rules" of a game are not talking about the written text but the manner in which a game may be played. – Davy8 14 years ago
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@Dana, I've accepted your answer, but I went ahead and built it anyway :). I will approach the board game owner soon with a licensing agreement. Will ask a separate question for help on that. – Pate 13 years ago
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I edited my answer as recommended by Davy8. – Dana Shultz 13 years ago
Note: This isn't really legal advice, but more philosophical in nature.
Go for it.
Ultimately, the question becomes, what are you hoping to achieve. If you're looking to make a large profit and create a new wave of interest in an old board game, you will most likely get into a legal predicament and/or be required to license rights to the game.
Remember that most of these legal protections are to protect someone's income. So, if you're interested in simply providing a service that is currently lacking and not in making a sizeable profit, you shouldn't expect much trouble. You may end up making a few dollars in the process and will be sure to develop a decent fan base before the company in question becomes aware. If/Once they become aware, they will of course contact you and look to use forceful tactics to acquire the company. Depending on provisions you take (namely, getting an attorney to help protect your rights before hand), you may have the ability to be acquired at a decent sum; however, you may on the flip side, have no such opportunity. If your main interest is simply to provide what you see as a needed service, I'm sure many will appreciate what you build and you can gain other positive indirect benefits. These include good will towards your future projects, notoriety in the community, and experience of building something, which is something most just talk about and don't gain.
Thus, I say that if you're not just looking for a buck (which it doesn't seem you are) go for it! Ultimately, I suggest that fear of legal repercussions shouldn't be considered enough to stop you from attempting the project, as you can make either make business or legal arrangements once you've gained traction. However, without any traction, this conversation is relatively unimportant.
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I doubt good intentions will affect the legal implications. – Pate 14 years ago
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I suppose my advice maybe a bit more philosophical than legal and thus would explain why it's not entirely germane here. Essentially, I'm suggesting that in the grand scheme of things, create something is ultimately better than doing nothing. Getting legal counsel once the site gains the slightest bit of traction would be advisable, but conversations are otherwise not as valuable. – Michael Merchant 14 years ago
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empirical examples of pirates getting acquired (instead of sued) would be nice – Henry The Hengineer 14 years ago
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-1 It's great to take action, but better to do it in a way where you don't have such a great risk of being sued. Honestly, I think this answer is irresponsible. – Susan Jones 14 years ago
I'm not an IP lawyer, so I'm not going to give you any legal advice, but common sense makes it clear that if you are infringing on the IP of a big company, they are going to come after you with all they've got to protect it, even if it is unclear where you are legally infringing or not.
I think you have two options:
- Negotiate a licensing agreement - they might be quite open to this and it could be advantageous to you to have their support especially if they will back you in marketing and distribution. Of course you need to go about this in a way that protects your interests rather than just handing the idea to them on a plate. Also, don't be suprised ifthey already have plans for an online version.
- Look for another idea that doesn't have legal issues. Starting a business is full on and stressful enough without taking on built in legal problems. Save your energy for the actual business
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I asked a [separate question](http://answers.onstartups.com/q/23890/3127) on how to approach them for licensing. – Pate 13 years ago
