Game Design Business: Protecting Your Intellectual Property

Dr. Lewis Pulsipher

Pulsiphergames.comCopyright 2013 Lewis Pulsipher

April 19, 2023

Note about the slides Slides are provided primarily for

those who want detailed notes later, not as an accompaniment to the talk

Consequently, they are “wordy” Available at

http://pulsipher.net/teaching1.htm Or just go to pulsipher.net

(not .com) or pulsiphergames.com and look for teaching material

Who am I Designed my own games while a

teenager Began playing commercial wargames

in 1963 Played the original Atari 2600 and

have played some PC games heavily, but rarely play any video games these days; never owned a game console

My favorite game is “the game design game”

“I am not a lawyer”

Who am I Designer of several commercially-

published board wargames (most recently January 11), more games to come

Active designer of board and card games (playtesters solicited!)

Book “Game Design: How to create video and tabletop games, start to finish”, McFarland (booth at GenCon)

Wikipedia: Lewis Pulsipher; Britannia (board game); Archomental

Some of my games

We’re talking about business, not about game

design But if you want to make money, you have to know the business

Lots of definitions of “intellectual property”

Let’s just call it the products of your mind

How do you prevent others from using the products of your mind?

MOSTLY, YOU CAN’T! But you don’t have to worry about it!

Intellectual Property Rights Ideas are not important, and not valued!

– Ideas are a dime a dozen: execution is far more important

– “There is nothing new under the sun” Game ideas cannot be protected, only

specific expression of an idea– George Harrison was successfully sued for the

tune of “My Sweet Love” being derived from “He’s so Fine”

– But this cannot happen in games, because game ideas are specifically not protected by law

– No, I don’t know why; but imagine if every game idea WAS protected. Few games would be published

Kinds of protection Copyright

– Easy to obtain but not very effective– “Trade dress”– Now expires 70 years after author’s death

Trademark (and Servicemark)– Both common law and registered

trademarks– Does not expire as long as in use

Patent– Almost never used– Very expensive and time limited

Copyright Prevents others from using your

exact words (and artwork/photos) Copyright now inherent

– As soon as you write or draw it, it is copyrighted

– Registered copyright makes lawsuits much easier to pursue and more remunerative

– Forget that “mail to myself” idea – an urban legend

But registered copyright ($35) enables much greater compensation in court cases

Copyright Someone can legally rewrite the rules

to your game, redo the art, and publish it– A dozen Risk clones being played online– But trademark forces a title change

But if they do, the negative publicity will be enormous – it’s a small industry

Some cases:– “The Twin”– “Tetris Strategy Game”– Maharajah– Quirkle

Trademarks Protects titles, characters

– E.g. “John Carter” still trademarked long after the Barsoom books are out of copyright

Two types– Common law – add TM to title– Registered – about $350, ®– Registration makes for stronger court case

Must be in commercial use Look up online, Trademarkia, US Gov

– Dragon Rage, Dragon Rage video, and Dragon Frenzy

Patents Protect a specific expression of

an idea– Usually a product– Also “design patents”

US Patent Office is thoroughly screwed up because it self-funds– The more patents it issues, the

more $$$ it makes Limited duration (26? years)

Patents Far too expensive ($3-10K)

– Successful games very rarely patented Much too expensive to defend in

court Why spend more money than you’re

likely to make on the game? Most well-known: patent on Magic:

the Gathering, not just on “tapping”– “look and feel” come into it again

You can see online the latest patents – virtually all are STUPID!– US Patent Office database

Using Licensed Properties Tie-ins with movies, comics,

books, etc.?– Much too expensive

Often not even worth the IP owner’s time to do the processing for a boardgame—there’s not enough money to bother with it

Those who do get licenses have track records (FantasyFlightGames, e.g.)

Contracts (IANAL) Not enough money to make a lawyer

worthwhile– And how many lawyers have a clue about game

contracts? Everything is negotiable

– But the ultimate strength in negotiation is the ability to “walk away” if you don’t like it

– You probably want publication more than the publisher wants your game

An advance against royalties is possible but not standard

If it isn’t clear, have it changed or deleted What counts is what’s written, not any oral

promises! Contracts exist to determine what happens

when things are not going well

What to include in contract: Publication: if the game is not

published within X time (12-18 months?), it reverts to designer

Reversion: X time after a game is no longer in print (12-18 months?), rights revert to designer

Ancillary/derivatives: who gets what if there is a computer version, T-shirts, other non-game items

Author’s right to use the game system to create other games not destined for same publisher

Digital game rights

Online resources

Boardgamegeek.com (along with sister sites for RPGs and video games)

Sloperama.com – good advice about getting into the video game industry

Board game designer’s forum GameCareerGuide.com (video

games)

Questions? Comments?

Wasteful Patents 4/30/2011 Game patents for a month.

– Most game patents are ridiculous– Text below often copied from PurplePawn.com

Conditional application of hit card – A blackjack variant, where you are dealt an optional card which you can exchange, along with a variable payout table if you do so.

21 to the river – A blackjack/poker combo, described in news article.

Educational game apparatus – Roll the dice, use math to figure out numbers to flip. The patent was written by someone with a loose grasp on English syntax and grammar. The game is called Funberz by Dane Compton, currently without a website.

More wasteful patents The Euchre Cube The Euchre cube, designed by Patrick O’Donnell and

self-published, differs from your typical Euchre scoring pads and peg tracks in that it prominently indicates the dealer (the guy next to the cube) and trump. The inside has a recessed Euchre scoring track.

It’s patented, includes a bag to hold the cube (a deck of cards will also fit in there), and costs $45 (plus shipping).

Board game – The game “Enlightenment” by Norman Vail. Chakras, deadly sins, and spiritual enlightenment, etc.

Funny, but to me the game looks a lot like Hustler’s adult

7 Deadly Sins game, whose object is not enlightenment. Next we have seven design patents for card game tables from

Marcus Katz: Yes, 7 complete design patents, thousands of dollars each, for

tables that, to the untrained eye, all look nearly identical with each other and with all card tables that already exist.

Surfing board game – A board game, by Carlos Echecopar, a surfboard designer who lives in Peru, where the board actually curls and you have to surf (with magnets) your meeples down the wave.

More wasteful patents Interactive game and method of play – From Rehco (aka Rehkemper), a

toy and game design studio. A card game with cards that have oval portrait spaces for you to put in pictures; several games include versions of Indian Poker and Charades. Several games on BGG are cited as precedents.

Low/max card game method and apparatus – A gambling card game from NJ company New Fun Enterprises (casino supplies). Player and the dealer each get an odd number of cards, split them into two “half hands” (discarding one), and bet if their “low” hand is lower than the dealer’s AND their “high” hand is higher than the dealers. And the apparatus? A half table (like the above ones) with markings on which to place your high and low hands.

Strategic pattern building board game – From a little company called Hasbro. For the game Connect 4 x 4.

In order to point out the inadequacy of previous games (in order to promote the need for this patent), Hasbro had to diss its own game of Connect Four: “Connect Four.TM. is limited because only two players can play, because the suspended matrix only allows a player to insert the colored discs into a single plane, and because only one type of disc is used. Consequently, the difficulty and the enjoyment of the game are limited.”

Gaming devices and methods of playing card games with indicator of cards played from previous hands – Electronic assistance for card counting in Blackjack … which makes no sense, since casinos typically try to prevent that.

More wasteful patents Pool billiard game with course thereof determined by cards – A set

of cards with pictures of billiard balls, to be used to create a multi-player billiard game (pick a card, shoot that ball). may include additional random event cards, such as miss a turn, etc.

Poker game – Though the patent uses the terms “attack” and “combative”, it’s not a war game version of poker, sorry. Based on Texas Hold’em, players are dealt additional cards, and cards they discard will neutralize or cancel out center cards (and possibly cards in other players’ hands), causing them to be discarded and replaced.

Playing method and gaming machine for a card game including a plurality of card games – A Baccarat game where bets are made on both values and colors. I think this is primarily a gaming machine patent, but not exclusively.

Special multiplier bonus game in Pai Gow Poker variant – As stated. From Shuffle Master.

In Pai Gow Poker, each player is dealt seven cards and makes two hands: one of five cards, and one of two cards.

Integrated game system, method, and device – Inventerprise is back, for some reason.

Wobbling game system – From David Gray of Texas. A pirate-themed game of balancing coins on a wobbling surface, as well as other games using the objects. It’s pretty long.