IP protection of games

I often have students make computer based games, but warn them to steer clear of protected games, not because I don't believe in fair use, but because I think it is good for them to climb the IP tree a bit to investigate some of its quaintness and curiosity. A student just approached me proposing he make a variant of the game of blackjack, but for two players. An unauthorized derivative of the original expression first played under its current rules in Nevada in 1931? one might wonder. I suggested he find the original rules to "vingt et un" played in France in the 1700's since that has probably entered the public domain (except of course for those darn moral rights which, if I understand them, allow Europeans and those from Massachusetts to crawl out of family trees and avenge any insults to their progenitors).

Many board games like "chess" and "go" date from antiquity and seem, undeniably to transcend IP protection. But if "kick-the-can" were never published, then its rules may still be under copyright, n'est-ce pas? Other more recent games may fall under various forms of protection. USPTO gives a definition of "games" at
http://www.uspto.gov/go/classification/uspc273/defs273.htm ("board games" are subclass 236).

Clearly many expressive elements of a game may fall under copyright protection as well: the rules as written would seem to qualify as would the game board, the game pieces, the box, etc. The merger doctrine might suggest that to the extent that a patent specifies the rules, then the rules are not copyrightable, since they become the only way to play the patented device. I don't know if this argument works though. I do certainly know not to photograph my daughter when she plays "kick the can" not just because it may be illegal for her to play that without a license, but because of the derivative artwork involved in the photography.

Trademark law seems to come into play concerning names of games and various elements of trade dress. The box, the board, the cards, the pieces all may contain value through their marketable iconographic recognizability, e.g. the top hat from Parker Bros. "monopoly".

Does anyone know of a good primer on the general topic of IP protection of games, most specifically of their rules? Seems like a quirky little backwater filled with strangely mutated fish. I'm glad to know that some of you think this is all simple.

TIA,
David Dailey Received on Sat Apr 05 2003 - 04:44:23 GMT