Copyright registration is as important a consideration for board game designers as is the design of the game itself.
At least, it should be.
Along with trademark registration, the copyright registration of the board game’s logo, box and board artwork, and other “creative” elements are, in fact, the protectible components of the game. (Trademark registration protects the name itself, any slogan used on the box lid or in advertising or social media. It also protects the stylization, or logo, for the game’s name use in “trade” of that sort.)
The mechanics of the game are not registrable as either a copyright or trademark. They typically cannot be registered, either, under US patent law.
This is why the board game marketplace includes many “re-themed” games. This is why a board game designer (and genius!) like Reiner Knizia can re-theme his classic strategy board game Samurai, first, into Samurai: The Card Game, and, then, recently Pollen.
Each of these Knizia iterations represents an entirely separate set of trademarks and copyrights to be registered. None represents a patent that is registrable.
We have already written on the subject trademark registration for board game designers here.
This Article will focus on copyright registration for board game designers or even tabletop RPG designers. In particular, it will discuss what to do—and not to do—before launching your game. In particular, what not to do before launching it on Kickstarter or any other crowdfunding platform.
What Is a Copyright?
US copyright law exists to provide an ownership right in a creative work created by an “author.” It is an intellectual property right that has market value and is enforceable in US courts.
An “intellectual property” is itself a form of legal property ownership. Just as is “real property” or “realty” (real estate or land). Also like “personalty” or “personal property” (non-land physical property or money or claim interests).
It is “intellectual” because … Well, because you thought it up. You created it intellectually. Importantly, copyright registration creates a record of copyright ownership for public notice. It provides standing for possible legal action.
In fact, under US law, a copyright ownership exists the moment the work is created. Automatically.
However, once you have registered your copyright, you have the right to:
- Issue cease and desist letters to infringers;
- File take-down notices on e-commerce and social media platforms, and
- Sue for infringement in US Federal Court.
Without a registered copyright, in fact, you cannot sue for infringement in US Federal Court. So says the US Supreme Court.
The purpose of US copyright registration is to foster the creation of creative works. This by allowing authors to solely benefit financially from the effort. Protecting creative works from infringement enables board game designers and other creators to exclusively reap the profit of their creations.
How Long Does a Board Game Copyright Registration Last?
The copyright registration for a board game does not last forever. As is well known, copyrighted works will eventually slide into the public domain.
A new copyright registration persists for 70 years from the death of the author. If a “work for hire” (see below), the registration lasts for 95 years from publication, or 120 years from creation. Whichever comes first.
Board games typically go out of print fairly quickly. Most board game publishers are small companies. They produce limited numbers of copies and, then, depending on the success of the release, may not release anymore.
The statutory timeframe for copyright registration, above, is therefore more than sufficient to accommodate the commercial lifespan of most games.
Games like Monopoly or Diplomacy, still selling decades after initial release, are certainly exceptions. Settlers of Catan is going strong to this day, roughly 30 years from the date of its initial release.
What Can You Register As a Copyright?
Creative works that can be registered with the US Copyright Office include literary works, works of the visual arts, musical compositions, dance choreography, dramatic works, and more.
The key, however, is that the work must be creative. Or it must at least be creative enough in the eyes of the Copyright Office to qualify for registration. Thus, very rudimentary logos or computer code sometimes run into problems when game designers attempt copyright registration.
For example, as a game designer, you created the game, you conceived its theme, you play-tested it, and it’s your baby. Your labor of love. Your Kickstarter campaign.
It’s been a very creative endeavor for you, so that means you can register your game with the US Copyright Office, right?
Wrong.
Creative Works Only!
Essentially, the “game” itself is its system. Its mechanics. A game-system is not a “creative work” as defined under US copyright law. If a system is registrable as any form of intellectual property, patent law would be the applicable form of intellectual property protection.
A discussion of patent law is outside of the scope of this Article. We do not practice patent law in our firm: trademark and copyright law only. Discuss the possibility of patent protection for your board game with an experienced US patent attorney who is a member of the US Patent Bar for more information.
The name of the game, any tag-line or advertising phrase or slogan, and the logo under which the game is marketed and sold are registrable as US trademarks.
What portion of the game can be registered as a copyright, then? The logo, if it is sufficiently creative, can be registered as a copyright.
The artwork for your board game can also be registered as a US copyright. Any background text, the printed rules themselves if sufficiently creative, scenario or storylines booklets or manuals, can also be registered as a US copyright.
Who Can Register a Copyright?
The “author” of a copyright is anyone 18 years old, or older, who creates an original, creative work in fixed form. A joint or co-author is a further creator who has contributed sufficient creative, original material to the work.
Thus, if, in addition to designing your board game system, you also created all of the artwork personally, including the logo, you are indeed the “author” of your board game for US copyright registration purposes.
However, if you paid an artist or graphic designer to do these things for you, this may not be the case.
As noted above, upon creation of a work, the actual creator of that work owns the copyright automatically. This is true even if you pay that creator to do the work for you. It is true even if you provide specifications for the work.
It is only not true if the work is created as a “work for hire.”
If not a “work for hire,” only that artist or graphic designer has the legal right to register a trademark for your board game design artwork.
Works for Hire in Board Game Design
A work for hire is a work created within the scope of a creator’s employment or pursuant to a work for hire agreement.
A work for hire agreement is a written contract providing that the actual creator of the work is not the “author” for copyright registration or ownership purposes. Generally, money changes hands as consideration for a creator’s relinquishment of his or her copyright ownership.
Thus, if your board game design publishing company employs staff artists, the works created will be works for hire. (AIt will still be wise to have an employment contract or other written work for hire agreement in place to prove later, as needed, that this was the case.)
If you pay freelance designers, writers, or other independent contractors to create artwork for your board game, you will want to have a written work for hire agreement in place, drafted and signed prior to the creation of the art, text, or other works.
Without ensuring that you own the copyright before publication of your board game, you run the risk of receiving a cease and desist demand from your own artists in years to come.
How to Register a Copyright for Your Board Game
Registering a copyright for your board game or its constituent registrable components is initially simple if handled for you by an experienced Michigan copyright attorney.
Your copyright lawyer will ensure, first, that board game materials you hope to protect are, in fact, registrable. Next, work for hire and other authorship questions will be ascertained.
Once your right to the registration for the board game ensured, your copyright lawyer will draft a copyright application. This may be done in hard copy form, depending on whether your board game design components are being submitted electronically or not.
Depending on how many works are being registered, for what type of work, one at a time or in collective form, the US Copyright Office will charge a variable filing fee that your attorney will collect from you in advance.
Once your application is complete, the Copyright Office will review it and, if approved, will register your copyright. The registration process can take several months.
If the Copyright Examiner refuses the registration or has other issues, your copyright attorney will work to resolve them, with your cooperation.
Trademark vs. Copyright—One or the Other, or Both?
Finally, a common question from board game designers inquiring about trademark registration or copyright registration: Which one do I need, or do I need them both?
The short answer: You need them both.
As noted above, trademark registration and copyright registration are 2 different areas of US intellectual property protection.
Trademark registration protects your right to exclusively use a “mark” in connection with a “trade.” This may be a business or product name or a logo or a slogan. That is, you have the right to registration of a trademark when you use a mark in interstate commerce. The mark must be used in association with the transaction of specific goods or services. It must be unique enough to identify you as the source of your game design product or game publishing service.
Copyright registration protects the creative components of the games themselves once affixed in tangible form, as noted.
- If someone takes the artwork from your game box and prints it, say, on a t-shirts for sale on Amazon, this is copyright infringement.
- If someone publishes a games with a confusingly similar name as yours, this is trademark infringement.
As all of these forms of infringement are possible, yes, you need to cover all of your bases as a game designer or publisher.
No product or business has long-term value if it cannot enforce its brand exclusivity against infringers of any variety.
Copyright Registration for Board Game Designers: The Bottom Line
Copyright registration for board game designers is a vital step toward protecting the long-term marketability of the game.
By registering your board game copyright, you’re taking a proactive step in safeguarding your rights and making your work more attractive to publishers.
Board game design and publishing is as much a labor of love as a prospective investment, if not more. Thus, it may be tempting to attempt to cut every corner possible and go it alone, without professional assistance.
Retaining an experienced US copyright lawyer, however, will maximize the odds of a seamless and successful copyright registration for board game designers.
Noble Path Trademark Law is a boutique US law practice located in Metro Detroit and assisting entrepreneurs, solopreneurs, artists, musicians, start-ups, and larger enterprises with robust intellectual property portfolios in all industries and in all states with copyright registration, as well as trademark registration, trademark renewal, trademark monitoring, and Office Action refusal response matters.
We offer virtual consultations, premium customer service, and the expertise you need to maximize your odds of copyright success.
