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Subject: Similarity to Existing Games? rss

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Daniel Baba
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Working on preliminary stages of a deck building game and I am using Dominion as a reference. How similar is acceptable (or legal?) to an existing game? The gameplay is different, a little more complex and has a different drafting setup. But some card types in dominion fit this game as well, can I 'copy' those cards? Would it be OK to use the mechanic of the currency 1 gold cost 0, 2 gold cost 3, and 3 gold cost 6?

I feel like through playtesting more and prototype evolutions things will change away from it more, but if some cards stay the same as what dominion has, s that just asking for trouble?

Thank for your input!
 
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Lee Griffiths
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Some of BGG's most loved games are nothing more than clones of other games + tweaks.

Legally speaking the only thing copyright protected in a boardgame is the literal text of the rulebook and the literal text on the cards. You're free to copy mechanics all you like.

You also have to be wary of trademarks, e.g. you can't "Tap(tm)" a card without WOTC coming down hard on you, but you can "rotate it" or whatever.
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Michael Van Biesbrouck
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dbaba133 wrote:
Working on preliminary stages of a deck building game and I am using Dominion as a reference. How similar is acceptable (or legal?) to an existing game? The gameplay is different, a little more complex and has a different drafting setup. But some card types in dominion fit this game as well, can I 'copy' those cards? Would it be OK to use the mechanic of the currency 1 gold cost 0, 2 gold cost 3, and 3 gold cost 6?

As an example of how close you can come, take a look at Tanto Cuore. It does add a couple mechanics and I think that gold costs more, but a lot is identical.

Nonetheless, do something distinctly different for at least part of the game. More people own Dominion and its expansions than will ever even hear of your game; give people a reason to play your game instead.
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Chris Ferejohn
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Poddster wrote:

You also have to be wary of trademarks, e.g. you can't "Tap(tm)" a card without WOTC coming down hard on you, but you can "rotate it" or whatever.

I'm pretty certain that has been ruled against and/or expired, but I certainly don't begrudge anyone *not* wanting to risk the wrath of Hasbro's lawyers.
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Daniel Baba
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Thanks for the response Lee! Many cards are very basic, standard text such as +1 Card, +1 Action. I don't presume this counts as copying the literal text because its such a commonly used phrase?
 
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Daniel Baba
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mlvanbie wrote:
dbaba133 wrote:
Working on preliminary stages of a deck building game and I am using Dominion as a reference. How similar is acceptable (or legal?) to an existing game? The gameplay is different, a little more complex and has a different drafting setup. But some card types in dominion fit this game as well, can I 'copy' those cards? Would it be OK to use the mechanic of the currency 1 gold cost 0, 2 gold cost 3, and 3 gold cost 6?

As an example of how close you can come, take a look at Tanto Cuore. It does add a couple mechanics and I think that gold costs more, but a lot is identical.

Nonetheless, do something distinctly different for at least part of the game. More people own Dominion and its expansions than will ever even hear of your game; give people a reason to play your game instead.

Good example and great point! Typically I try to take a fresh idea an smash it with a game with solid mechanics. Works better for me than coming up with something fresh out of the blue.
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Michael R.
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dbaba133 wrote:
Thanks for the response Lee! Many cards are very basic, standard text such as +1 Card, +1 Action. I don't presume this counts as copying the literal text because its such a commonly used phrase?

I'm not an IP lawyer, but it seems like that should be in the clear, given that they're common gaming terms and not specifically worded phrases.

But this question does make me wonder...how different is your game actually going to be from Dominion? So far, we've got three currencies that work in the same ratios as Dominion, and we've got "many" cards doing the same things as most of the cards in Dominion.
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Daniel Baba
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ski6913 wrote:
dbaba133 wrote:
Thanks for the response Lee! Many cards are very basic, standard text such as +1 Card, +1 Action. I don't presume this counts as copying the literal text because its such a commonly used phrase?

I'm not an IP lawyer, but it seems like that should be in the clear, given that they're common gaming terms and not specifically worded phrases.

But this question does make me wonder...how different is your game actually going to be from Dominion? So far, we've got three currencies that work in the same ratios as Dominion, and we've got "many" cards doing the same things as most of the cards in Dominion.

Haha, sounds pretty similar when you put it like that... Drafting piles are small and clear faster and are replaced by a new pile. Card types include cards that do 'worker placement' on shared areas which is the way to get points. The drafting is only half the game, so that part of it should be less complex.
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You can steal mechanics and stats to your heart's content - they're not copyrightable at all. You can't steal names, artwork, background or flavor text - that's totally copyrighted.

You do need to be a little careful with homages / tributes / trademarks. If it's as a friendly (non-disparaging) joke, you're probably fine.

If you have a mechanically similar game with different theme, background stories and art then you should be fine. That doesn't mean that you can't be sued, just that you should prevail if you are sued.
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Ji Dan
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Poddster wrote:
Some of BGG's most loved games are nothing more than clones of other games + tweaks.

Legally speaking the only thing copyright protected in a boardgame is the literal text of the rulebook and the literal text on the cards. You're free to copy mechanics all you like.

You also have to be wary of trademarks, e.g. you can't "Tap(tm)" a card without WOTC coming down hard on you, but you can "rotate it" or whatever.

Yes, the patent involving tap mechanics has expired, but as the poster notes, the term may be protected.

As far as I can tell, there haven't been any game mechanics patent grants since 2013 ("Alice" and related cases), so any given mechanic is likely to be in the public domain.

You do need to be cognizant of trademark infringement, and potentially copyright, but these issues can always be navigated, since the game is the mechanics, not the artistic and commercial elements.
 
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GrauGeist wrote:
You can steal mechanics and stats to your heart's content - they're not copyrightable at all. You can't steal names, artwork, background or flavor text - that's totally copyrighted.

You do need to be a little careful with homages / tributes / trademarks. If it's as a friendly (non-disparaging) joke, you're probably fine.

If you have a mechanically similar game with different theme, background stories and art then you should be fine. That doesn't mean that you can't be sued, just that you should prevail if you are sued.

The ruling related to this issue (cloning a game and merely using a different theme) is SpryFox, LLC vs. LOLapps, Inc.

This case involved app cloning, but would apply to any game. However, it's a district court ruling, and could be overturned. (My understanding is that it's a bit of a "third rail", legally speaking, and no one wants to go near it.)

The plaintiff did, however, prevail: https://www.gamesindustry.biz/articles/2012-10-15-spry-fox-w...
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Ji Dan
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The copyright question can get even more gnarly if you consider Tetris Holdings, LLC vs. Xio Interactive, Inc.

Essentially, because it's a copyright issue, not a patent issue, one can make a game based on Tetris mechanics, but one cannot directly copy Tetris design elements. (Traditionally, this would have been covered by a design patent, so this ruling extends that concept to copyright, where rights are inherent.)

A high-level overview of one of the outcomes is that, while you can make tetris-like game, you can't do it using the same gameboard size and polymino shapes.

So if you have cards that are identical in terms of function (what the cards do,) it probably does expose you if you become a commercial threat to a publisher.

That said, I suspect if you analyzed deck-building games in general, many games would have cards that are functionally identical.


---------------------------------------------------
For any who would rail against this ruling, remember that Alexey Pajitnov created one of the most popular games of all time, which will likely outlast nearly all modern games, and never profited from it until he started protecting his intellectual property to the degree that he could.
 
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Michael Van Biesbrouck
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DukeZhou wrote:
The ruling related to this issue (cloning a game and merely using a different theme) is SpryFox, LLC vs. LOLapps, Inc.

This case involved app cloning, but would apply to any game. However, it's a district court ruling, and could be overturned. (My understanding is that it's a bit of a "third rail", legally speaking, and no one wants to go near it.)

The plaintiff did, however, prevail: https://www.gamesindustry.biz/articles/2012-10-15-spry-fox-w...

These were interesting links (and the first link contains many references to suits in which reuse of game elements didn't infringe copyright). However, my reading gives a different interpretation:
* the first link was the response to a motion to dismiss the original suit, in which the copyright claim was allowed to proceed
* 6Waves had privileged access to the original game, so they could have copied elements of the implementation while replacing the art
* the matter was settled out of court (second link)

The copyright claims were never actually tested and my understanding is that they were allowed to proceed because of aspects that wouldn't apply to a board game.
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Michael Van Biesbrouck
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DukeZhou wrote:
That said, I suspect if you analyzed deck-building games in general, many games would have cards that are functionally identical.
Dominion has included pretty much every variation on the Market card, but every mechanic on these cards probably has prior art in non-deck builders.
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Ji Dan
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mlvanbie wrote:
DukeZhou wrote:
The ruling related to this issue (cloning a game and merely using a different theme) is SpryFox, LLC vs. LOLapps, Inc.

This case involved app cloning, but would apply to any game. However, it's a district court ruling, and could be overturned. (My understanding is that it's a bit of a "third rail", legally speaking, and no one wants to go near it.)

The plaintiff did, however, prevail: https://www.gamesindustry.biz/articles/2012-10-15-spry-fox-w...

These were interesting links (and the first link contains many references to suits in which reuse of game elements didn't infringe copyright). However, my reading gives a different interpretation:
* the first link was the response to a motion to dismiss the original suit, in which the copyright claim was allowed to proceed
* 6Waves had privileged access to the original game, so they could have copied elements of the implementation while replacing the art
* the matter was settled out of court (second link)

The copyright claims were never actually tested and my understanding is that they were allowed to proceed because of aspects that wouldn't apply to a board game.

Great points that I glossed over. (The privileged access was a huge factor.) Definitely never been tested, and it doesn't seem like there's an appetite to test it.

They might say it wouldn't apply to boardgames, but I wouldn't trust that. If the financial incentives are high enough, parties will litigate.
 
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DukeZhou wrote:
GrauGeist wrote:
You can steal mechanics and stats to your heart's content - they're not copyrightable at all. You can't steal names, artwork, background or flavor text - that's totally copyrighted.

You do need to be a little careful with homages / tributes / trademarks. If it's as a friendly (non-disparaging) joke, you're probably fine.

If you have a mechanically similar game with different theme, background stories and art then you should be fine. That doesn't mean that you can't be sued, just that you should prevail if you are sued.

The ruling related to this issue (cloning a game and merely using a different theme) is SpryFox, LLC vs. LOLapps, Inc.

This case involved app cloning, but would apply to any game. However, it's a district court ruling, and could be overturned. (My understanding is that it's a bit of a "third rail", legally speaking, and no one wants to go near it.)

The plaintiff did, however, prevail: https://www.gamesindustry.biz/articles/2012-10-15-spry-fox-w...

That's a good find, but it simply says "on first glance, plaintiff *might* be have a case". No final ruling was made, only that the case could proceed to trial if plaintiff wanted to push forward.

The case was settled out of court, but I suspect the settlement was due to "unclean hands" from the business relationship, versus a competitor building a similar clone from scratch. If you look at Zynga, for example, they steal and copy everything they can to the edge of the law.
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mlvanbie wrote:
DukeZhou wrote:
That said, I suspect if you analyzed deck-building games in general, many games would have cards that are functionally identical.
Dominion has included pretty much every variation on the Market card, but every mechanic on these cards probably has prior art in non-deck builders.

Another excellent point. My overall sense is that nearly every game mechanic is in the public domain, and that novel, fundamental mechanics are rare. (Especially when you start reducing games to graphs, per the most recent math!)

One of the underlying concerns is that the legal dimension in terms of litigation is typically determined by how much is at stake financially. So, even if there is no basis, a deep-pocket publisher may choose to sue.

(Not to mention, recall the Blurred Lines copyright case--prior to that, copyright violation in music was based on copying melody, not atmosphere.)

But designers shouldn't worry overmuch because IP litigation is expensive and involves a high degree of uncertainty, so you'd likely really have to be impacting someone's bottom line for them to spend the money to go after you.
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GrauGeist wrote:
DukeZhou wrote:
GrauGeist wrote:
You can steal mechanics and stats to your heart's content - they're not copyrightable at all. You can't steal names, artwork, background or flavor text - that's totally copyrighted.

You do need to be a little careful with homages / tributes / trademarks. If it's as a friendly (non-disparaging) joke, you're probably fine.

If you have a mechanically similar game with different theme, background stories and art then you should be fine. That doesn't mean that you can't be sued, just that you should prevail if you are sued.

The ruling related to this issue (cloning a game and merely using a different theme) is SpryFox, LLC vs. LOLapps, Inc.

This case involved app cloning, but would apply to any game. However, it's a district court ruling, and could be overturned. (My understanding is that it's a bit of a "third rail", legally speaking, and no one wants to go near it.)

The plaintiff did, however, prevail: https://www.gamesindustry.biz/articles/2012-10-15-spry-fox-w...

That's a good find, but it simply says "on first glance, plaintiff *might* be have a case". No final ruling was made, only that the case could proceed to trial if plaintiff wanted to push forward.

The case was settled out of court, but I suspect the settlement was due to "unclean hands" from the business relationship, versus a competitor building a similar clone from scratch. If you look at Zynga, for example, they steal and copy everything they can to the edge of the law.

Very good points, but there is always the uncertainty. And, when combined with Tetris vs. Xio, there may actually be some basis.

(Consider that every other form of artistic endeavor carries inherent intellectual property rights, but only game have traditionally required patents. With over 100 years of US precedent on the eligibility of mechanics in question, games may be the only form of artistic endeavor for which the creator has no rights! So it's not entirely crazy that other areas of intellectual property protection could be extended. My sense is that, historically, courts tend to favor artists getting paid.)

If a boardgame designer were to straight clone another game and merely slap on a new theme, and that game was successful and started impacting the original game's revenue, I suspect there would be litigation and that the cloner would lose. But that's just a guess, and the history of Monopoly clones suggests otherwise. However, there is an axiom in patent law that might extend to IP law in general, which is the only certain thing is uncertainty, in that the law is imperfect and continually evolving.

Found an interesting blog on the general subject: https://www.plagiarismtoday.com/2018/07/24/the-rise-of-board...
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Michael Van Biesbrouck
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In the case discussed earlier the trade dress part was successfully squashed. However, earlier this year I went to a movie and was very confused. I expected Captain Marvel to be female, but the backstory was completely unexpected. The next day I watched a DVD with a trailer for SHAZAM! (DC, not Marvel) and realized I needed to do some research. Long ago, DC sued the creators of Captain Marvel because they had basically cloned Superman (with a different origin story) and were out-selling them. The suit was sufficiently successful that the publisher left the comic industry entirely. Marvel's Captain Marvel is a totally different creation made when the original Captain Marvel was no longer in existence. Later, DC bought the rights to the Captain Marvel they had sued out of existence but called the series SHAZAM! to avoid confusion and/or trademark issues.
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mlvanbie wrote:
In the case discussed earlier the trade dress part was successfully squashed. However, earlier this year I went to a movie and was very confused. I expected Captain Marvel to be female, but the backstory was completely unexpected. The next day I watched a DVD with a trailer for SHAZAM! (DC, not Marvel) and realized I needed to do some research. Long ago, DC sued the creators of Captain Marvel because they had basically cloned Superman (with a different origin story) and were out-selling them. The suit was sufficiently successful that the publisher left the comic industry entirely. Marvel's Captain Marvel is a totally different creation made when the original Captain Marvel was no longer in existence. Later, DC bought the rights to the Captain Marvel they had sued out of existence but called the series SHAZAM! to avoid confusion and/or trademark issues.

Highly salient! (I was unaware of this history.)

When I was researching Tetris, I found info suggesting that, because of the wild popularity, publishers were licensing the game from people who didn't even have rights to it. Hard to fully vet that info, but it does suggest how crazy the world of licensing and intellectual property can get, as does the history of Captain Marvel.
 
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DukeZhou wrote:
GrauGeist wrote:
DukeZhou wrote:
GrauGeist wrote:
You can steal mechanics and stats to your heart's content - they're not copyrightable at all. You can't steal names, artwork, background or flavor text - that's totally copyrighted.

If you have a mechanically similar game with different theme, background stories and art then you should be fine. That doesn't mean that you can't be sued, just that you should prevail if you are sued.

The ruling related to this issue (cloning a game and merely using a different theme) is SpryFox, LLC vs. LOLapps, Inc.

That's a good find, but it simply says "on first glance, plaintiff *might* be have a case". No final ruling was made, only that the case could proceed to trial if plaintiff wanted to push forward.

The case was settled out of court, but I suspect the settlement was due to "unclean hands" from the business relationship, versus a competitor building a similar clone from scratch. If you look at Zynga, for example, they steal and copy everything they can to the edge of the law.

Very good points, but there is always the uncertainty. And, when combined with Tetris vs. Xio, there may actually be some basis.

(Consider that every other form of artistic endeavor carries inherent intellectual property rights, but only game have traditionally required patents. With over 100 years of US precedent on the eligibility of mechanics in question, games may be the only form of artistic endeavor for which the creator has no rights! So it's not entirely crazy that other areas of intellectual property protection could be extended. My sense is that, historically, courts tend to favor artists getting paid.)

If a boardgame designer were to straight clone another game and merely slap on a new theme, and that game was successful and started impacting the original game's revenue, I suspect there would be litigation and that the cloner would lose. But that's just a guess, and the history of Monopoly clones suggests otherwise. However, there is an axiom in patent law that might extend to IP law in general, which is the only certain thing is uncertainty, in that the law is imperfect and continually evolving.

Found an interesting blog on the general subject: https://www.plagiarismtoday.com/2018/07/24/the-rise-of-board...

Game mechanics are more similar to cooking recipes / how-to instructions than anything else, and therefore fundamentally not deserving of much protection whatsoever. It's a recipe that the player follows in a stepwise fashion. If you don't copyright "measure 3/4 teaspoon" or "stir until thickened", you don't copyright "roll a dice and consult the table".

Monopoly clones aren't a good example, because I believe that almost every so-named "X-opoly" game is licensed. The non-licensed variants tend to get sued pretty quickly.

The post-Magic TCG boom would be a good boardgame example of clones, as would the various not-Warhammer things that have appeared. In the direct software game section, there are huge numbers of not-Clash, not-PUBG, not-X-Ville games on the App Store / Play Store. Supercell and Zynga and Tencent have the financial wherewithal to destroy competition, if they knew they would prevail in court. But it's obvious that they wouldn't, which is why so many similar games are out there.

Again, it's not a question of whether you can be sued - you always can be sued at any time (and lose!) for no reason whatsoever. The question is whether you could reasonably defend yourself on the merits.
 
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GrauGeist wrote:
Game mechanics are more similar to cooking recipes / how-to instructions than anything else, and therefore fundamentally not deserving of much protection whatsoever. It's a recipe that the player follows in a stepwise fashion. If you don't copyright "measure 3/4 teaspoon" or "stir until thickened", you don't copyright "roll a dice and consult the table".
Interestingly, the amount of a cookbook that is considered to be excerptable under fair use is less than a recipe, no matter how long the cookbook. Sequence of operations is a patent issue, of course, but particular written embodiments of them can be subject to copyright even when short.

Don't get me started on API copyrights in Oracle vs Google.
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Want to reinforce to the poster of this thread that you shouldn't be worried about this.

I referenced some legal precedents just to give an idea of the dimension and complexity of the IP issues--I'm not an attorney but I work with them, and the attorney's job is to be paranoid and think about contingencies.

The likelihood of getting sued over a similar card, or even a similar but distinct game, is very very low, unless you make a ton of money and become worth going after.
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