Intellectual property Protection

Ideas

A big question that many new designers have is - How do I protect my idea?

The short answer is - don't worry about it. No one is going to steal your idea. Most game designers and publishers have more ideas than they know what to do with. The tricky part of game design isn't the idea - it's the hard work that goes into executing on that idea. The benefit you will gain from having other people play your game vastly outweighs any risks.

Having said that, it is useful and important to understand the different types of intellectual property protection, and how they apply to tabletop games.

NOTE: The discussion here is based on US law. Most other nations have similar IP laws, but please confirm with local experts.

Non-Disclosure Agreements (NDAs)

NDAs are used to protect parties when disclosing confidential information.

At first glance it may seem like it would make sense for designers to ask publishers to sign an NDA before pitching a prototype. The reality is, however, that this is never done for a variety of practical reasons. Publishers are inundated with designs, and to have to review and sign a legal document before reviewing each would become extremely onerous.

Some contracts may contain non-disclosure clauses about revealing the details of the contract to third parties, or other information. It is fine for a publisher to ask you to not share information about their business or customers that you would not normally have access to. However, sometimes these can go too far.  TTGDA's contract review services can help advise you on what is customary.

Sometimes NDA's may be required for playtesters when testing games with licensed IPs, or to preserve secrecy prior to a marketing program. The playtesters should be told in advance that this is a requirement of the test, and the test itself should be help in a private area to preserve confidentiality.

Copyright

Copyright protects a specific expression of an idea. In tabletop games it is normally the rules and the artwork that can be awarded a copyright.

Copyright is gained automatically when the game is published.

Mechanics cannot be copyrighted. Courts in the US have ruled that mechanics can be freely copied as long as the exact text of the rules and artwork are different.

When a designer licenses a game to a publisher, there is typically a clause that says that when the license lapses and the design returns to the designer, that they get the rights to publish the game with a new publisher, but that the copyrighted material stays with the publisher. This means that a new edition with a new publisher must use new art, and the rules cannot be written exactly the same way.

The name of the game is typically not copyrighted, but it can be Trademarked, which brings us to...

Trademarks

A trademark is a logo, phrase, icon, or other element that is distinctive to a product. Unlike copyrights, trademarks are typically registered with the government. Game names and logos are good candidates for trademarks. Certain icons, like the "tap" icon in Magic: the Gathering have also been trademarked.

It is important to specify that when a license lapses that the trademarked name of the game also reverts back to the designer, so it can be published again under the same name.

Patents

Patents protect an invention for up to twenty years. There must be something novel and useful about the idea to receive a patent.

It is possible to get patents on tabletop games, but it is rare. Magic: the Gathering had a patent that protected the overall concept of a collectible card game with a 'tapping' mechanic. Note that while mechanics cannot be copyrighted, they can potentially be patented.

However patents can be very expensive to secure, and defending them can mean legal expenses. There is also no guarantee that your patent will be awarded even after incurring the expense. It is generally agreed that patents are not a useful option in most cases for tabletop games.

Learn More...

The US Patent Office offers free webinars on a variety of topics. Here is a link to their Trademark Basics Boot Camp, which should be useful to designers and publishers.

Other resources:

• Here is an excellent article that goes into more depth on these topics.
• This article discusses game-related IP in the EU and Latin America.
• An article from the American Bar Association
• A paper from the Iowa Law Review
• This article outlines fundamental principles of attaining permission.