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Written by : Wilbur Faulhaber
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we're here to answer your game gaming or game night questions with all the talk of winnie the pooh entering the public domain i found an interesting intellectual property related question in our pile of questions and i thought it'd be interesting to bring up now before we get to that though a disclaimer neither of us are lawyers or have any legal background while the information we present here tonight is carefully researched from credible sources nothing we say should tonight should be taken as official legal advice yeah while i may have played a lawyer once in an rpg i haven't taken a single law course out of the question abe bloom sent us an email that said hi thanks for being available for help if a game has been patented for more than 20 years is it legal to use the card mechanics is it still covered by intellectual property regarding card mechanics if a game is played with numbers shapes and colors and the goal of the game is to collect matches can i still play this exact game if i change the numbers or shapes or colors to a different factor such as size well thanks for the great question ape now this is something i see come up time and time again online on forums on boardgamegeek twitter and i've even had it come up at local gaming events when talking to people about games especially when talking to people considering making games of their own there seems to be quite a bit of confusion about this topic and we're going to do what we can tonight to try to clear some of that up to the best of our ability again we're not lawyers well again i'm not a lawyer or legally trained either as a photographer i have spent more than my fair share working to make sure that i understand certain aspects of ip law well enough to help protect my own work do i need to say we're not lawyers again or if we got it covered i think we got it at this point say something eight times people remember all right let's start with the easy part this is pretty simple game mechanics can't be copyrighted it is very difficult to protect game mechanics you are free to use the mechanics in any game ever published and anyone can take the mechanics in your game and use them in yours and they're sorry this is the reason you see so many versions and variations of classic games so many rolling moves so many skip a turns monopoly being of course the most popular and most obvious game that has a million knockoffs with the official hasbro versions along with other companies putting out their own versions heck one of the companies we work with regularly now and whose games we actually enjoy quite a bit their non-monopoly versions is the op which actually started out as usa opoli as a company that was originally created to sell uniquely themed versions of monopoly so the problem is while this is mostly true today it wasn't always the case and it isn't in fact 100 true that you can't protect game mechanics you can't copyright game mechanics and you can't trademark game mechanics but many games have had their specific combination of mechanics patented monopoly in fact was patented and protected from 1935 until 1952 at which time the term of its patent expired similarly magic the gathering's process of a trading card game method of play was patented in 1994 and its protection only expired in 2014. now for something more related to hobby games so i shouldn't say more related hobby games we're talking about the gathering but board game wise um a few years back a company made a card for card copy of seven wonders all they did was change the names and the artwork on the carts this was produced for promotional purposes with 2 000 copies made and it was never available for sale but was distributed to people who belonged in this company all of that was perfectly legal now that's not to say it should have been done and i gotta say the gaming community came down hard on this company when rob davio the designer of seven wonders discovered it and now i gotta say it takes quite the deep dive on the net to even find reference to this scandal what they did though from a legal standpoint was fine now whether they should have done it or not is a totally different matter beyond the legal issues is the harsh court of opinion plagiarism is something taken very seriously and while in small amounts may not cross into any legally enforceable issues as others before have discovered being called out for such actions can at best draw significant negative attention to your work and at worst lead to an inability to get your product to market at all for an example of an issue where literally no laws were broken and yet a game was brought to its knees one only has to look at the 2019 release of alien uscss nostromo by wonder dice and the claims of plagiarism by designer francois bachelar now what i think is a logical progression from this is the fact that if game mechanics can't be copyrighted or don't fall under intellectual property except in rare cases using patents to protect them and that again is only as sean mentioned for specific combinations of mechanics used together in a unique way what can we do to protect or what can a designer do to protect their tabletop game and the opposite side of the coin what can't you freely use from another game and here i'm going to be passing over the reigns to sean as he's done a lot more research on this topic and has more background in ip law due to his photography business now remember if you actually have questions about the law see a lawyer that's not us remember now to quote from the american bar association specifically board games occupy a nexus of the three primary forms of intellectual property protection copyright trademark and patent copyright is a form of protection provided by the law for a original works of authorship allowing the holder to be the only person able to copy distribute or otherwise share a work under the law now when it comes to copyright ideas versus expressions are the key concept one needs to grasp for instance roll two dice and move your piece is not a copyrightable expression or but the specific wording of the rules governing that mechanism are when it's set down in a rule book are copyrightable just as the words to your novel are no matter how intricate and convoluted you wish to make your game it is unlikely that its actual game mechanisms will have any protection under copyright the imagery artwork text of the rules and specific game text if it's long enough those are copyrightable works so i was wondering uh if you had any examples like the one that comes to mind is everyone in the gaming industry knows that whether the coast did something and i can't remember what to protect tapping you weren't allowed to use the word tapping hey roger in the chat perfect timing just said tapping is patented so the exact wording from the magic the gathering rule book is to tap a card is to turn it sideways to show that it's been used for the turn is that copyrightable so that sentence is not but the rules the set of rules the book of rules is copyrightable uh and using significant portions of it are the same as copying chunks of my novel uh y
Thanks for your comment Tennille Danford, have a nice day.
- Wilbur Faulhaber, Staff Member
well hello everyone uh thank you for joining us this lunch time we um are just going to wait a couple of minutes uh to make sure we get the numbers in obviously people get a little bit delayed in hanging out from one zoom meeting to the next so if you'll be patient thank you and we'll get underway in just a couple of minutes what i think i'll do i'll watch my counter and when it gets to 12 35 i think we'll begin we are taping this presentation so uh you know it will be available if you have to miss some of it or you'd like to watch it again or if you know other people that may be interested so i am aware of people's time so we don't want to delay this too much so we'll just give it another minute and we can get started all right we might uh to get underway well welcome everybody my name is richard jagger and before we start i'd like to begin by respectfully acknowledging the traditional custodians of the land we are all virtually meeting on today and they are the the banaran boon werong and the waranjuri werong peoples of the eastern coolin nation and i pay respect to their elders past present and emerging as i mentioned my name is richard jagger and i'm a director of the victorian clean tech cluster i'm excited that you've joined us today because we're discussing a really important area for every development company and that is your ip and how to develop a strategy to protect it before i introduce our speakers i would like to mention a little bit about the victorian cleantech cluster as we have people today who are with us who are not members well not yet anyway let's hope they might see the value in joining so the vcc is a member-driven voice for cleantech in victoria with an aim to support companies institutions and indeed the government as well to help drive sustainable growth in a number of sectors that involve clean technology we aim to provide a platform for members to come together to share expertise and receive advice to drive the uptake of clean technology and economic growth ultimately helping us achieve a more sustainable and circular economy if you aren't yet a member i would encourage you to visit our website maybe connect with some of our members and look at how you could contribute and benefit from being part of the group so today we will hear from two very experienced and talented people catherine morris and janelle borum who are both principals in the chem life group at griffith hack catherine is a chemist whose expertise lies in natural products ag products battery technology water treatment and pharmaceuticals janelle is also a chemist and her expertise covers general chemistry energy polymers and food technologies janelle is also the vice president of the institute of patent and trademark attorneys of australia so there's a lot of synergy between our two speakers and the markets covered by the members of the vcc so i think we will gain a lot by the insight our two speakers have today it is my understanding that together they have over 50 years experience in managing ip and supporting companies in managing their ip strategies i will make the assumption that they started their journeys in this field when they were both teenagers so anyway today they will discuss the various types of ip and how they might be managed to derive the greatest benefit to your company or your organization so without further ado i will hand over the floor to catherine thank you richard and thanks for the lovely introduction um just as a matter of housekeeping before we start that if you have any questions um we'd ask that you please put them in the question and answer section of the event screen um and our moderator gemma will collaborate sorry we'll collate collate them and we can discuss them at the end of the talk also please keep in mind that there are if there are things that you're particularly interested in and would like to be expanded on in more detail please let us know those topics because we are planning a second talk later in the year uh where we we will present a case study showing how a company may use ip and its business strategy over a period of time so right let's get to today's agenda we're going to be talking about intellectual property or ip as it's shortened to and how it what it is i guess and and generally how it's used in business and and we're going to talk about some of the um particular rights such as patents and trademarks and copyright trade secrets and those sorts of things as well as some issues around freedom to operate and capturing your ip um next slide please duma okay so what is ip ip is a really it's really a broad umbrella term that encompasses tangible and intangible products of intellectual or creative effort and intellectual property rights are the legal means by which such intellectual property is protected next slide please gemma and there are different types of ip and different categories i guess and some are registrable rights and some are non-registerable rights so some of the registrable rights are patents designs trademarks and plant breeders rights and these rights must be applied for they must meet certain criteria and they are usually managed by a patent office or trademark office such as ip australia oh sorry go back please gemma the non-registerable rights include things like copyright confidential information circuit layouts and passing off these rights are automatically accrue to a person that owns them but they still need to be managed so both kinds of rights uh need to be need to be managed um appropriately when you have a registered right timing might be crucial and an applicant needs to be proactive in registering their um their rights so okay next slide uh please gemma and over to you janelle great thanks very much catherine we're off mute now so it's nice to uh be speaking to you all so i'll touch first on one form of uh registered rights which is trademarks so trademarks are fairly familiar to a lot of people and there are a number here shown on the screen so they act as a badge or a symbol that distinguishes your goods or services um from those of others so that you can uh demonstrate your connection to those goods or services about 95 of trademarks that are registered are things like words or logos or a combination of the name with the logo and some of those are shown here it's also possible to get protection for what we call non-traditional types of trademarks which might be something like the shape of a product so the toblerone bar might be an example of that so any chocolate bar that is shaped in that triangular form you would immediately associate with toblerone and also scent sound and color marks are also registerable forms of trademarks so brands have a great deal of value and particularly for businesses that have been established for a long time the trademark rights and the brand value can be can amount to very large sums whilst uh that is the case in fact and and often it's thought that intellectual property protection can be something that's quite expensive to obtain in fact at the outset for trademark filing and registration the costs aren't too great applying for
Thanks fupib your participation is very much appreciated
- Wilbur Faulhaber
About the author
I've studied industrial policy at South Texas College of Law in Houston and I am an expert in economic history. I usually feel dorky. My previous job was standards engineer I held this position for 4 years, I love talking about vintage clothing and video editing. Huge fan of Hayden Panettiere I practice gaelic games and collect scouting memorabilia.
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