Board Games and Intellectual Property

120px-Monopoly_game_logo.svgI just finished teaching from The Knockoff Economy in my Law and Technology Seminar.  The book, as I’m sure many of you know. describes thriving creative fields where copyrights and patents are either unavailable or play no meaningful role.  Examples include:  (1) fashion, (2) cooking; (3) team sports; (4) databases; (5) tattoos; (6) hairstyles; (7) fonts; and (8) magic tricks.

One industry that the book does does not discuss but that does fit this paradigm involves board games.  The rules of a board game are not copyrightable, and getting a patent on a game nowadays is almost impossible.  The name of game can be trademarked and aspects of the game’s appearance might qualify as trade dress, but that is all that the inventor or owner of the game can rely upon.

The board game business, though, seems to be doing just fine.  Entry barriers are low, of course, which helps explain why a relatively open system can work.  There must be something else to this though.  Why are classic games like Monopoly, Scrabble, Clue, and Risk able to survive?  In other words, why do brand names or trade dress seem so crucial for games?

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4 Responses

  1. Bruce Boyden says:

    Great question Gerard. It seems intuitive that the availability of “MIlwaukeeopoly” or whatever does not really reduce demand that much for Monopoly. (My intuitions are subject to being displaced by actual facts.) My own theory for copyright at least is that board games are not copyrightable, except for their surface appearance as opposed to the substance of how they play, because they are systems for game play excluded by 102(b). And I think that might explain why they do well without protection for game-play elements, because one value of a successful system is the network benefits of other people using the same system. Why do people play “Hearts” and “Spades” but not “Clubs” or “Diamonds”? It’s because no one else plays “Clubs,” so there’s an initial learning curve, and also a lack of an authoritative source on the rules. Which leads to an interesting question about what exactly the rules of Monopoly are, the ones everybody uses, or the fairly different ones that Hasbro actually prints.

  2. paean says:

    Have you done any sort of comparison of the market value of these, uh “fields”? Team sports, fonts and magic tricks? Is there really a lot of economically valuable innovation there as compared to the smartphone industry?

  3. Gerard Magliocca says:

    Well, I didn’t say that they are comparable to miracle drugs and your iPhone. But I suppose you’d have to read the book and decide for yourself whether they are significant innovative businesses.

  4. Joe says:

    The movie “Clue” was on recently & I was looking into it and reading the story behind the game on Wikipedia, it was explained that it was originally a British invention and the inventor did get a patent for it. The laws in British of course might be different than here on this question. The page has a link that sources this tidbit so those interested can check it out.