A Trivial Pursuit: Scrabbling for a Board Game Copyright Rationale

Kevin P. Hales

Abstract

People generally think board games are copyrightable. A Google search of “copyright my game” yields millions of results, many of them game creators asking how they might copyright their fantastic new board games. Explaining to those creators why their games are not copyrightable is difficult. Indeed, the answers posted in response to their questions often jumble the law terribly, mixing up patent, trademark, and copyright. And even the most accurate answers seem unsatisfactory as they attempt to explain the idea-expression dichotomy as the underlying reason why a particular rule book language and layout may be protected by copyright while the game behind it may not. One may easily imagine the deflation felt by these creators as they discover that their games legally may be copied with impunity. It is easy to understand their confusion and frustration, particularly when copyright has been extended over the last century to many odd examples of creativity, including short advertising jingles, choreographed dances, yoga positions, and short segments of computer code.

The noncopyrightable nature of board games appears to be generally accepted black letter copyright law. The only protectable elements of board games are particular original expressions of the rules and visually expressive and artistic elements. This protection formula is reminiscent of the useful article doctrine, which states that the only elements of such articles that may be protected are those that can be separated physically or conceptually from the article’s functional aspects. Names of games may well be protected under trademark law, and often are, but the game itself—the manner of play, the way the game proceeds, the very heart of the game—appears to be unprotectable. Surprisingly, however, though it is a very old and only rarely challenged position, it is difficult to find a well-articulated legal reason for the blanket exclusion of board games from copyright protection. In this article, I discuss the historical lack of protection in games and present arguments in favor of extending copyright protection to board games.