IP, Morality, and the Gaming Industry

IP. Intellectual Property. It's theoretically what encourages creators to create, but here's a dirty little secret: it generally (and I speak for the United States here, but there's an increasing amount of conformity throughout the world) doesn't protect games.

You see, there's two types of IP of general interest to most publishers: copyright and trademark. And, as we'll see neither of them protects what's actually the core of a good game design.

(And before I get going, let me carefully note, I'm not a lawyer, but I have been working with this sort of stuff for a while.)

An Overview of IP

Copyright is the most general type of IP. It covers ideas that have been made substantial and concrete. The idea itself isn't copyrighted, but the specific way in which it's made real is. So, in The Settlers of Catan, the rulebook is copyrighted as are the artwork on the components and on the box. In other forms of media, entire short stories, novels, songs, and movies fall under copyright.

Copyright is really easy to get. Theoretically it magically appears as soon as you write/draw/create something. You can register it if you want, but that's mainly so that you can sue for damages.

Trademark is a sort of marketing protection. It most frequently covers a product name and/or a specific logo in which that name is used, but it can also cover other unique elements that distinguish your product. UPS, for example, has trademarked the color brown for package delivery. Other companies have trademarked things as weird as the specific shape of a box. When you look at trademark violations there's a core question of "Would this cause confusion with the trademarked item?" So, The Settlers of Catan logo and probably name is a trademark in certain areas of entertainment.

Everyone can mark something as a trademark, but to have a legal basis for suits you really need to register it, and that's a labyrinthine process that keeps lawyers and suits in Washington in a job. However, once you've done it a few times it gets easier.

You'll note in these discussions that we've missed a crucial element of game design: the actual game mechanics. They're not covered by copyright, because that only covers the concrete, which is to say the explanation of the mechanics in the rulebook, not the abstract mechanis themselves. Likewise, trademark clearly doesn't cover them.

And there's another type of IP to fill the gap: patents. Patents cover inventions that are new and original, and this is where game mechanics could fit in. The problem? The process to get them is even more complex and convoluted than what's needed to file a trademark. Rigorous and technical documents must be filed, and it can (and does) take years for a patent to be accepted or denied. Even then the patent office (in the US at least) is a hotbed of massive incompetence; they regularly give out incorrect patents, and so having a patent doesn't actually mean anything until it's defended in court.

Patents & Games

As a result of all of this, patents almost never get filed for games. Among other things, it's just too expensive.

I'm aware of the occasional aberration. Wizards of the Coast, for example, was granted a patent for certain aspects of CCG play after they released Magic: The Gathering. However, the rest of the CCG industry thought so little of the patent that Wizards wasn't really able to enforce it--but word is that it gave them the leverage necessary to pull down the Pokemon license when it came to the US.

Very small publishers patent their ideas sometimes too, but it's usually a sign of inexperience and a lack of understanding of the industry. The phrase "Patent Pending" on a gamebox is generally enough to get me to put it back on the shelf.

And, honestly, it's a good thing that patents aren't widely used in the game industry. Because, as I alluded to above, the whole system is utterly and totally broken and corrupt. If there was enough money in the tabletop gaming field to support patent work, someone would have patented "resources depicted as cards", someone else would have patented "the once-around auction as a game system", and a third person would have patented "rolling dice to generate a random event", and the whole Eurogames industry would have come to a grinding and total halt.

However, the lack of patents in the industry, and more generally the lack of anything actually protecting game mechanics, does cause problems in the industry.

Duplicating Games

The most loathsome result of this that I've seen is Covenant Communication's game Search, Play and Ponder, which is an exact copy (mechanically) of Looney Lab's Aquarius. This story was chronicled by Andrew Looney a couple of years ago in Wunderland. In short: the folks at CC took Looney's game, commissioned new art and rewrote the rules, but it's otherwise exactly the same, down to the card counts.

Looney wrote in a rant, "Intellectual property theft has been committed against myself". And, although that's clearly morally correct, legally it wasn't. I'm fairly certain the Looneys never filed a patent on Aquarius' mechanics, and the folks at Covenant Communications changed everything they were legally required to.

There's a good ending to that story: when the Looneys confronted Covenant Communications, the offenders offered to destroy their stock of the game. In the Looneys' last posting on the subject, they were trying to negotiate a license instead.

Much more insidious is an Italian game called Vive L'empereur. All reports seem to indicate that it uses Richard Borg's "Commands & Colors" mechanics, but places it in the Napoleonic wars. The publisher simply says that they "stand by their product" and makes no apologies for co-opting Borg's work. Unfortunately, it's probably entirely undercut Borg's ability to ever design a Napoleonic C&C game for the European market.

And, he has no options because of the bad integration of IP laws & games.

Barbarossa & Cluzzle

Which brings us, finally, to what got me started on this article: Klaus Teuber's Barbarossa and Dominic Crapuchettes' Cluzzle two similar games that on the other hand show that this sort of issue isn't black and white.

In Teuber's game each player make clay models, but they can't make them too good or too bad. If they're easy the player will lose points when they're guessed, and if they're hard they'll never get guessed (costing the player the opportunity to get points).

Players get points when their puzzles are guessed (as long as they're not guessed too early) and when they guess other puzzles.

Besides guessing you can also ask "yes or no" questions and request letters in an answer.

In Crapuchettes' game each player makes a clay model, but they can't make them too good or too bad. If they're easy the player will get just 1 point when they're guessed, and if they're hard they'll never get guessed (costing the player the opportunity get points).

Player get points when their puzzles are guessed and when they guess other puzzles.

Besides guessing you can also ask "yes or no" questions.

Now, there are a lot of differences in the details of gameplay. Barbarossa has fantasy theming and players get to take different actions each turn, depending on where their pieces land on a small board. In Cluzzle there's no actual board, and instead questions are asked in quick-fire 2-minute rounds. Crapuchettes also says that his Cluzzle is really directed at a different audience: it's an easier game with less rules.

Nonetheless when Crapuchettes recently asked me if I'd liked to review some of his games, I told him I wasn't comfortable doing so because of these similarities.

My viewpoint goes something like this:

1. Mechanics aren't generally protected by law.
   
2. But the tabletop gaming industry is a very small one, and it behooves its members to act politely and morally toward each other, because the industry doesn't have the money to file patents or talk to lawyers and we want to encourage our designers to keep designing.
   
3. When two games can be (correctly) summarized as similarly as the two summaries I offer above, that's too close for me.
   

Crapuchettes offered an interesting alternative point of view. He entirely understood the issue of patents & gaming IP, and said that he'd waited until a patent would have expired if Teuber had actually filed one before he released Cluzzle.

(This isn't actually true, by-the-by, but it's close. Teuber released Barbarossa in 1988, while Crapuchettes released Cluzzle in 2004. That's a 16-year difference. Before 1995 the U.S. length of a patent was 17 years after the patent's release, while since 1995 its been 20 years after the patent's filing. Because there is often a 1-3 year gap from filing to release, the two lengths were about the same thing. If Teuber had filed a U.S. patent in 1988 it would have expired somewhere between 2006 and 2008. Crapuchettes says that he thought that patents lasted 15 years at the time that he released Cluzzle.)

Since Crapuchettes actually went to the heart of IP by imagining a world where games could be protected he somewhat side-stepped the whole issue of morality & legality, and instead offered the question how should things be? In other words, when Teuber's theoretical patent expired this year or in a few years from now, would it then be OK for other people to entirely stripmine his game, even moreso than Cluzzle does?

Crapuchettes said the following in one of his emails to me:

"Do you know why patent law exists? It is to benefit the people. Allowing 17 years of exclusivity gets individuals to risk years of their life (as is the case with me) to invent things that are better than what currently exists. Ending that exclusivity and returning the idea to the public domain allows others to build upon these ideas. Why? Because it is in the best interest of people. If things did not return back the public domain, we would not have electricity, we would not have cars, we would not have running water, we would not have plumbing. In short, we would have nothing. We would cease to be a civilization."

He's right, that is the purpose of IP, and it's something I sometimes overlook because of my own strong interest in IP as a creator.

But, on the other hand, I'm still not convinced that it's fair in the gaming field. If Klaus Teuber were a writer, his work would be protected for an absurd amount of time (namely, for about 95 years, which is honestly too long). But, as a game designer instead he only gets 20 years, even if he could file a patent. This difference doesn't strike me as right--that a creative writer gets a lifetime of protection and a creative game designer doesn't because his games are considered "inventions" if they're protected at all. I still think that an industry of the size of tabletop gaming needs to protect its creators even (and especially) when the law doesn't do so adequately.

But I understand Crapuchettes' point, and I can see some validity in putting out similar games that nonetheless aren't direct copies (and Cluzzle isn't) as games age. Even when there's a whole lot of similarity.

It's overall a difficult question, and so I also open it up to you, the readers.