How to Copyright a Card Game

Creating games is a fun and lucrative side business that designers can turn into a career. Eventually, all game makers say to themselves, “I invented a card game. Now what?” It’s getting harder to prevent game ideas from being stolen, but copyright, trademark and patents can all help.

A game designer invests time, money and effort into developing a card game. Why should he risk someone else reaping the rewards? It's important to take legal steps to prevent someone from stealing the idea. This is different from someone else developing a game that is similar to another.

The market is full of similar ideas. These things happen in all areas of creative license. It’s not unheard of for designers to use one another for inspiration or for two people out of millions to develop similar concepts. For that reason, it sometimes seems difficult to protect a card game concept.

Difficult – but not impossible.

Top three ways game designers can protect intellectual property are:

1. Copyright game text and graphics.
2. Trademark card game name and logo.
3. Patent game mechanics and design.

Copyrights, trademarks and patents are often lumped together, but they represent three distinct types of intellectual protections. Game makers can use a combination of the three to ensure that no one steals their work.

Copyright is automatic upon creation. However, an officially registered copyright makes it easy for a card game designer to protect her rights in court. Copyright law protects expressive elements of a book, movie, painting, card game or other creative work. Yet, there are a few limitations.

According to the U.S. Copyright Office, copyright doesn't protect general facts, short phrases, ideas or methods of play. It can only protect the way they're expressed in the game. Copyright isn't used for names, titles or other short phrases either. However, a game maker might be able to trademark them.

In 2014, a federal case clarified the point that copyright won’t protect game mechanics. In the suit, a company sued a competitor for copying their Western-themed game,"Bang!" The defendants’ game used the same rules, had similar characters and objectives, but set the game in ancient China. Despite the extreme similarities, the court ruled that the defendants had not violated copyright law.

Read More: How to Get a Card Game Copyrighted

So what are the expressive elements of a card game? The text used in the rules, game description, graphics used on the box and the cards, as well as the overall design used in game construction. If the game or the designer has a logo that is particularly detailed, it might also be a candidate for official copyright protection.

This leaves some designers angry because someone can come along, make a few changes, and create a new game using all their work. However, copyrighting is one of the easiest and most affordable ways to protect a card game. So, while it doesn’t offer complete legal protection, it lays a solid foundation for a game maker to defend his rights in court before and after a card game is for sale.

The U.S. Copyright Office recommends copyrighting a game as a literary work if it contains more rules and description than visual elements. If graphics are more important, it’s best to copyright the card game as a visual work of art.

Designers should place a copyright mark on their materials before they officially register their works with the government. This offers a creator extra protection should she wind up in court later. A game designer can do this in several ways, but the mark must include:

• The word “Copyright” or the copyright symbol ©.
• Year of first publication.
• Name of the copyright holder.

Game makers can use either a digital eCO form or a paper CO form for registering a copyright. As of 2019, the cost is $35 for submitting an eCO form and $55 for submitting a CO form.

Along with the forms, designers must file a copy of the game or sufficient identifying material. The appropriate option depends on whether the designer has already published the game, how many pieces the game includes and the size of the finished product.

Specifically, the U.S. Copyright Office wants a copy of any published game smaller than 1,728 cubic inches made of more than three three-dimensional parts. For unpublished games or published games falling outside those guidelines, sketches or photos will suffice.

Photos should show one game element marked with a copyright notice. Photos and illustrations should be between 3 inches by 3 inches and 9 inches by 12 inches. The applicant should label one of the pieces with the title and dimensions of the card game.

For some designers, the best answer to the question “I invented a card game. Now what?” is: Get a lawyer. To trademark a game title, most designers will spend $1,000 or more. Hiring a trademark agent to research and register a mark helps save costs.

According to the United States Patent and Trademark Office (USPTO), a trademark is a word, phrase, symbol, design or combination of these that identifies the source of a product. A game maker might trademark the name of a game or a company, symbols used on dice or a game logo. Designers with a fleshed-out character, like Ajani Goldmane or Liliana Vess, might want to go the extra mile and trademark the names of those characters as well.

This protection allows companies to build up brand recognition. It provides a basis for consumer trust. Trademarks prevent unscrupulous companies from taking advantage of that trust and delivering subpar products. Trademarks protect game manufacturers from other people damaging their reputations or benefiting from their investments and hard work.

A card game maker can only get a trademark for a product currently used in commerce or intended for commercial use. Use in commerce means that the trademark appears in marketing materials used to generate income in transactions in more than one state. So, if a designer only intends to give away copies of a game or if he limits sales to an annual statewide convention, he won't be able to register a trademark at the federal level.

Game makers can establish common law trademark rights without going through the process of federal registration. However, it’s more difficult to defend these rights in court without it. There are different symbols used to denote common law rights from those with federal recognition. Use these symbols to identify trademarks:

• ™ for common law rights or those awaiting registration.

• Ⓡ only for marks that are federally registered.

While U.S.-based applicants can apply for a trademark on their own, it’s a good idea to hire an attorney with experience in trademark law. Foreign applicants are required to hire a U.S.-licensed attorney to handle the trademark search and application process. However, there are some free and low-cost options available through the USPTO.

A designer can file online through the Trademark Electronic Application System (TEAS) or by calling the USPTO at 800-786-9199. All applications require a drawing of the mark. Use-in-commerce applications also require a specimen showing the mark used in marketing of some kind. For instance, a logo on a shirt is not an adequate specimen, but a logo on a sales tag on a shirt would qualify.

The most important aspect of securing a trademark has nothing to do with filing paperwork – it’s the research that goes into making sure no one already has the trademark and that no one else has the right to use it.

The owner of a mark or a representative of the owner may file for federal registration. However, sometimes a game maker has a word, phrase, symbol or other mark he wants to protect, but it isn’t a good candidate. Generally, this is because of confusion with an existing trademark or challenges involved in protecting the mark.

Registration with the USPTO helps a game designer stop others from using her trademarks, but registration will not help the designer uncover violations or sue the offenders in court. Additionally, to retain a trademark, creators must be consistent in defending their rights.

For instance, the USPTO would likely reject a trademark application for the use of a common industry term. Even if a designer secures registration, it could take an overwhelming amount of time and money to prevent infringement. In cases where a trademark isn’t advisable, a designer might still secure a card game or trading card game with a patent.

Filing the application for a card game or trading card game patent costs between $1,000 and $2,000, depending on the complexity of the card game’s mechanics. However, attorney fees could top $10,000 or more. While a game maker isn’t required to use a professional, it helps to ensure patent approval.

A 2016 decision by the U.S. Court of Appeals for the Federal Circuit determined typical card game mechanics were too abstract to qualify for a patent. The case of In re Smith centered on the rules to a wager-based card game using a standard deck of cards. The USPTO denied the application as the acts of shuffling, dealing and placing bets are standard practice in the gambling industry. The court upheld the decision on appeal.

According to the USPTO’s Inventors Assistant Center, a designer may secure a utility patent on the process, machine, article of manufacture, composition of matter or the improvement of any of these.

Design patents are available on ornamental designs of an article of manufacture and asexually reproduced plant varieties by design and plant patents. A designer can secure a card game or trading card game patent for both utility and design purposes. Design patents cost less than utility patents and are less likely to run into violations. However, a designer should still complete a thorough search. Because of the complexity of searching federal and international patent records for similar items, it’s recommended that a designer use an experienced attorney or patent agent.

Designers who don’t follow the steps to secure a patent at the right time or in the right order can forfeit their rights. A designer has 12 months from the first public use or offer of sale to file for a patent.

A designer can file for a provisional one-year patent or a nonprovisional 20-year patent online through the USPTO Electronic Filing System (EFS-Web) or complete a paper application by calling 800-786-9199.

A provisional patent protects an invention for a year while the designer finishes development. There is a simpler application process, but the standards for accuracy are just as high. Mistakes made in a provisional application can prevent patent eligibility in the future.

Along with the nonprovisional application, a designer must include:

• A description or claim.
  
• A drawing to application specifics.
  
• Declaration.
  
• Inventor information.
  
• Filing fees.
  

Clerks examine the application for completeness and perform a patent search to ensure there aren’t any conflicts. The process takes roughly three years. The exception is the provisional patent which gives a game maker one year before the examination begins.

Some designers ask themselves, “I invented a card game. Now what?” and decide to sell their games. Independent publishers should go through the process of copyrighting, trademarking and patenting their intellectual property. The same isn’t true for freelance designers making a work for hire. In those situations, the rights to the card game belong to the client who paid the designer's fee.

While registering for copyrights and trademarks, and securing a card game or trading card game patent takes time and investment, the work pays off. The success of games like Pokemon and Magic: The Gathering have depended on it.