A final decision has been handed down in the 2-year copyright infringement case involving the card game Bang! and its clone, Legends of the Three Kingdoms.

The backstory

Back in 2014, the creators of the card game Bang! filed a copyright infringement lawsuit against Chinese company Yoka Games and their US distributor, ZiKo Games, LLC. At issue was Yoka’s game Legends of the Three Kingdoms, which Bang! publisher DaVinci Editrice SRL claimed was a clone of their game.

The two games were aesthetically different – the rules text, character names and art, as well as the themes (Wild West versus Chinese themes) were not the same. The various character abilities and the game mechanics themselves, however, were exactly the same in many cases.

Going off of traditional notions of copyright protection, one would have thought this a meritless case. Traditionally, game mechanics are not protected by copyright. This type of intellectual property is solely in the realm of patents, which are uncommon in tabletop games (outside of the big players) due to their high cost. Copyright, on the other hand, only protects the original creative elements of a work. Functional parts (game mechanics, in this case) are not protectable.

There was some doubt cast on this notion, however, by a couple of cases that preceded the Bang! case. I detail these cases in this blog post from back when the Bang! case was originally filed. The court’s response to a motion in the case made it seem like they were open to expanding copyright protection for certain parts of a game’s mechanics, namely the powers of the characters and how they interact with each other.

Any hopes that this would change copyright protection for games, it seems, was entirely unfounded.

Summary judgment motions

Since the last post I wrote on this case, the two parties have conducted discovery (which is where they gather evidence for their cases, essentially), and have submitted motions for summary judgment to the court. A summary judgment motion is one that basically asks a court to rule on a case where there is no dispute as to the facts; the court only has to make a decision about the law.

In this case, the parties basically agreed on the facts, even on the fact that the games were essentially the same (barring the artwork and other elements mentioned above). However, they disagreed on whether those facts would lead to a ruling of copyright infringement. That made this appropriate for a summary judgment ruling. On April 27, 2016, the court’s ruling on those summary judgment motions was released.

Copyright protection for game mechanics

The court looked at the facts presented by the parties, including the undisputed fact that the games’ mechanics were essentially the same. The court pointed out the major statutory limitation to copyright protection, which is that:

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

The court points out that “Unlike a book or movie plot, the rules and procedures, including the winning conditions, that make up a card-game system of play do not themselves produce the artistic or literary content that is the hallmark of protectable expression.” They note that past game copyright victories were won by parties based on infringement of visual appearance or other protectable elements. Pac-man’s gameplay, they recall, was not considered protectable back in 1982.

The court’s opinion on the case

Given these rules and precedent, the court looked at the issue in the case – that of the similarity between “the roles and characters and their interactions” in the two games. Ziko argued that these roles and interactions were no different than other rules and mechanics in the game, and therefore were unprotectable. DaVinci, on the other hand, argued that those roles and interactions were protected, using precedent from the Triple Town case.

The court distinguished this case from the Triple Town case, though. In Triple Town, that court analogized the gameplay hierarchy in Triple Town to the plot of a movie. In doing so, they imbued it with copyright protection.

However, the Bang! court rejected this comparison in the current case. Rather than being like the plot of a movie, the court likened the character interactions of Bang! with something more akin to a game of basketball. They held that this is not protectable. According to the court, the plot and gameplay progression of something like The Legend of Zelda would most likely be protectable. Bang!’s gameplay doesn’t rise to that level.

The court also found that many of the abilities given to character cards in Bang! are “stock” abilities, which are not protectable. “Even if the Bang! characters’ abilities were not stock, they are still not expressive because they are essentially rules of game play,” the court held.

The court held in conclusion that, “The undisputed summary judgment evidence shows that Bang!’s characters, roles, and interactions are not substantially similar to those in LOTK. The aspects of the roles, characters, and interactions that are similar are not expressive, and aspects that are expressive are not substantially similar. ZiKo and Yoka are entitled to summary judgment of noninfringement.”

What does it mean for game designers?

Those hoping for a little stronger protection against clones are most likely disappointed with this ruling. However, it appears to be in line with established principles of copyright law.

The ruling does shed some light and clarify a bit of copyright law specific to tabletop game developers. This is great for those who have questions related to the copyrightability of their game mechanics, or their use of established mechanics. It doesn’t, however, negate the need for the consideration of existing patents when borrowing existing mechanics (if those patents exist).

It should be noted that this is only one case in one federal district in the 5th circuit. Other district and circuit courts could potentially rule differently. Nothing is ever truly the “law of the land” until it is ruled on by the Supreme Court, as the various circuit decisions don’t have precedential effect against the others. It also remains to be seen whether any appeals will be filed by DaVinci in this case. I’ll keep you updated here on the blog.

Have questions about copyright law and your game? Contact a game lawyer to set up a free consultation.

Ashitaka wrote:
There was a patent from WOTC/hasbro on 'tapping'

(or an attempt - I can't remember)

 PsychoticStorm wrote:
Yes, but they copyrighted it (not patented it IIRC) first and this underlines some of the biggest problems such systems have.

I doubt there are many patented game systems, especially since the system referenced from the description sounds more like an activity than a pure game system.

 PsychoticStorm wrote:
Given the monopoly clones out there I would really be surprised there is a patent indeed.

I would expect it to be more feverishly copyrighted than patented.

 Jin wrote:
There're tons of clones because the patent came out in 1935. It's WELL expired.

 PsychoticStorm wrote:

 JohnHwangDD wrote:
I think this is excellent law.

Now for me to re-skin Tokaido as "Route 66", a crass Ameritrash game driving from Los Angeles to Chicago, where you eat at McDonalds, meet People of Walmart, take selfies and compete to see who gets the most Thumbs. Actually, that would be a pretty solid game...

Sounds like an interesting reskin, not sure how more appealing it would be over the original and what tweaks it may (if any) need to match the new theme mechanically.

It will definitely not be the first game to do so and it might also be one of the games that outshine the originals.

 Kilkrazy wrote:
"Tapping" was patented, not copyrighted.

ou can't copyright an invention or an idea.

I personally don't think "tapping" should have been patentable, but IANAL.

It was patented and the patent has run out by now so the point is somewhat moot unless someone else tries to patent a similar "invention" or it gets used as a precedent in some way.

 Korraz wrote:

They tried to patent the mechanics of Trading Card Games as a whole.
We all know how insubstantial that was, though. The market just established the name "Collectible Card Game" instead and used other words than tapping, like Exhaust, Bend, Kneel, Change or so on. And, to be fair, "Tapping" as a word is very specific to the idea of drawing Mana out of a Land, so the word itself isn't a huge loss.
They also hold the rights to the tapping symbol, which is just a circle with a bendy arrow, so, again, nothing really substantial. So, all in all, the WotC patent has always been completely toothless.

Albino Squirrel wrote:
I could just re-print the rules for, let's say, Terminator Genesys, but without refrencing the background of the Terminator universe, and sell it (probably for a lot less than the actual game since I wouldn't have to pay for the licensing). Doesn't that completely de-value the work Alessio Cavatore did to create what is apparently a very good, tight rules system? It's basically saying the rules part of a rulebook is worthless and has no artistic merit, the important part is the little fluff bits that accompany it.

 JohnHwangDD wrote:
Indeed. It is why Games Workshop is a models company, a stories company. Not a rules company.