Intellectual Property

and
Roleplaying Games
Robert Fischer (Order #41584348)
 Legal Warning

(Here be Dragons!)
Just so the old law license doesn’t get taken away:

• While I am an attorney, I am not YOUR attorney;

• This is an exploration of the law and NOT an application of the law to your specific situation.
• This exploration document is woefully incomplete, skipping over corner cases and thorny issues like registra-
tion.
• If you want a comprehensive exploration or someone to apply the law to YOUR SPECIFIC SITUATION, hire
an attorney of your own, which, as we’ve just covered, you have not done with me.
• Also, I can only speak to IP law in the United States.
• One more time, I’m not your attorney.

History
This document came out of a discussion on the r/RPGdesign subreddit. You can view that original post, which is
basically this guide without any formatting or fun text boxes blowing out the practice tips, at https://www.reddit.
com/r/RPGdesign/comments/mvw9cs/intellectual_property_in_rpgs_what_is_it_and/.

Copyright
This guide is © Boyd Stephenson, published in 2021. All rights reserved. Violators will be punished to the fullest
extent of the law that I’m able to get enforced. It’s a free product, so take this warning with a grain of salt. But,
it’s about IP protection, so maybe try and do things right.

About the Author

Boyd A. Stephenson is an attorney and former trade association executive and government affairs specialist based
in Washington, DC. As the General Counsel for a small trade association, Stephenson was tasked with ensuring
the association’s publications were not pirated and, when designing new publications, that they were crafted to
be as protectible as possible. After nearly 20 years advocating in the energy and transportation industries, Ste-
phenson acquired the franchise for Game Kastle specialty gaming store in the Washington, DC area. He is cur-
rently building out the first DC-area location. In his spare time, he plays roleplaying games with friends, is part
of several local LGBTQIA+ sports leagues, and—like all Washingtonians—argues about politics a lot. You can find
him online on Twitter at @boydstephenson and on Instagram at the same handle.

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 Table of Contents
What Can Be Protected?............................................................ 3
Copyrights............................................................................3
Trademarks...........................................................................3
Patents...................................................................................4
What is Free for the Taking/What You Cannot Protect....... 5
Game Mechanics..................................................................5
Public Domain Content..................................................... 6
Publicly Licensed Content.................................................7
Scenes a Faire/Stock Characters....................................... 7
Layout....................................................................................8
Conclusion....................................................................................8

List of Practice T ips

Only Idiots Think They Own Ideas.......................................... 3
Should You Register Your Copyright....................................... 3
Trade dress in picture form...................................................... 4
Game Patents Aren’t Happening............................................. 5
Merger Doctrine & Character Sheets.......................................6
Tapping - A Patently Bad Idea?................................................ 6
Copyrighted Iterations on Public Domain Works................ 7
Public License Pitfalls................................................................ 7

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 W hat Can
Be Protected
To start this exploration of the intersection of roleplay-
ing games (RPGs) and intellectual property (IP) law, it’s
probably best to talk about why the various types of
intellectual property exist and what they are meant to
protect. The game designer takeaway here is to learn
what can’t be protected (or isn’t protected anymore, if they are methods/systems of operation which should
you’re interested building on preexisting material). therefore be patented.
So, this introduction will cover the various types of IP, How that coverage arises: By placing that expression
why they exist, what they cover, how that coverage in a fixed medium (paper, computer file, etc.).
arises, and how long that coverage lasts. I’ll also delve
into what content is clearly free for the taking. I’ll save How long that coverage lasts: For individual cre-
what’s murky to use and what’s clearly off the table ators, the life of the author, plus 70 years
for later. These will include things like: developing What’s free for the taking: Content not subject to
your mechanics, organizing your rulebook, laying out copyright and content where the copyright has expired
your rulebook, designing a setting, designing monsters, or otherwise fallen into the public domain.
what’s fair use of unlicensed IP, visual art, the special
status of maps, hiring an artist, licensing existing art,
non-legal considerations when infringing, etc. Trademarks
There’s some debate here, but there are four different
types of IP that are generally recognized: copyrights,
trademarks, patents, and trade secrets. The first
Why they exist: To prevent consumer confusion by
three play a role in game design, the last not so much.
identifying the source of a product or service
So, I won’t be covering trade secrets. If someone can
think of how trade secrets are relevant in RPG design, What they cover/protect: A word, picture, color,
let me know, because I am interested! So, let’s get scent, or design meant to convey the source of a good
down to the other three types: or service; or, when licensed, the approval of the source
of the good or service.
What they don’t cover/protect: Products themselves.
Copyrights A trademark is designed to convey who produced a

Why they exist: “To promote the Progress of Science

and useful Arts, by securing for limited Times to Au-
thors and Inventors the exclusive Right to their respec-
tive Writings and Discoveries” (U.S. Const., Art. I, ¶ 8).
I could write a whole essay on this, but the basic idea
(originally) was to provide a short-term but relevant
amount of time for creators to exercise control over
their work so that they’d produce the work at all.
What they cover/protect: The expression of an idea
What they don’t cover/protect: Ideas, methods,
systems of operation, independently existing facts, and
more! Game mechanics are not subject to copyright –

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 product, but it provides no protection for the product
itself. A trademark is so you know your D&D adven-
ture was created by the folks who make D&D rather
than a third-party author.
How that coverage arises: Use in commerce followed
by registration
How long that coverage lasts: Forever, provided
the use in commerce is continuous and the trademark
holder continues to reup their mark
What’s free for the taking: Because the trademark
only indicates source, the underlying product itself is
unprotected
Patents
Why they exist: “To promote the Progress of Science
and useful Arts, by securing for limited Times to Au-
thors and Inventors the exclusive Right to their respec-
tive Writings and Discoveries” (U.S. Const., Art. I, ¶
8). I could write a whole essay on this, but the basic
idea (originally) was to provide a short-term but rele-
vant amount of time for inventors to exercise exclusive
Practice Tip: In the gaming
world, trade dress is often a
flash point. Trade dress covers
the visual elements of how a
product is designed to look
(think the unique look of a
Coke-a-Cola bottle versus other
plastic bottles or the spine
of any D&D hardback book).
Legally speaking, the design of
a book can be considered an
indication of who published it
in addition to what it conveys.
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control over their inventions in exchange for making
their methods public. If it seems like this is repeating
copyright, it is. By design. They are both constitution-
al commands to Congress.
What they cover/protect: Inventions that are useful,
do something new, advance their field in a non-obvious
way, in a method that can be described and is techni-
cally feasible.
What they don’t cover/protect: Ideas, concepts,
(most) living things, things that are otherwise barred
from being patented by law.
How that coverage arises: Registration
How long that coverage lasts: Up to 20 years, with
re-registration required along the way
What they don’t cover/protect: The result of what
the patent does. A patent protects a process, not a
result. The now expired patent on tapping Magic cards
stopped other card game designers from indicating a
card was used or otherwise unavailable by turning it 90
degrees. But, nothing prevented other game designers
from indicating that a card was used by placing a token
on them, turning them upside down, etc.
The official Dungeons & Dragons books all share a common
design, but the third-party monster book is clearly a different
“beast.” It lacks the black spine with red branding and the
spine title is in a different font. On the far right, two official
special edition books are also published by Wizards of the
Coast for Dungeons & Dragons. Even though they differ from
the traditional books, they share a common design with other
speical editions.
 Practice Tip: In the gaming
world, game mechanics would
be subject to patent protection,
but they rarely clear the “do
something new” and “advance
their field in a non-obvious
manner” hurdles. Examples
of patented game mechanics
include polyhedral dice (late
19th century) and the “tapping”
mechanic from Magic the
Gathering (1990s). Both of these
patents have expired, making
them available for all to use.
W hat is Free for the
Taking/W hat You
Cannot Protect
Now that we have a (very) basic idea of the types of IP,
let’s talk about what they don’t protect in the gaming
world. If you’re a new creator, these are things you can
lift from other sources without fear of (legal) reper-
cussions. If you have an existing product, these aren’t
subject to IP protection for one reason or another.
Game Mechanics
Game mechanics are generally accepted as not being
protectible IP. There are two main reasons for this.
They fall into a legal hole in the space between copy-
right law and patent law. Copyright law doesn’t cover
methods, systems, procedures, etc. for at least two
reasons. First of all, these are the arena of patent law.
Secondly, copyright protects the expression of an idea,
not the idea itself.
Robert Fischer (Order #41584348)
Image from US Patent 292563A (iss. Jan. 29, 1884) demon-
strates the then-novel construction of an 8-sided die.
But, when the idea can only be coherently expressed
through a single method or very few methods, the idea
and its expression are said to “merge,” rendering both
the idea and the expression of it outside of copyright
protection. The classic case here is Baker v. Selden,
which invalidated copyrights over printing books
designed for double-entry accounting. Rules and their
explanations often suffer from the same limitations.
There are only so many ways to explain that a player
should roll a 20-sided die (d20), add a bonus or subtract
a penalty and then compare their result to a target
number. The idea (rolling a d20, adding a bonus or sub-
tracting a penalty, and comparing to a target number)
is almost impossible to express in other terms. Try it.
I’ll wait.
Merger doctrine basically says:
• There are some ideas that are incredibly limit-
ed in how they can be expressed
• Copyright law protects expression of an idea
without blocking the idea itself
• Because there are only limited ways to express
these ideas, allowing someone to own the
means of expression would effectively allow
them to own the idea as well as the expression
• That doesn’t advance the goals of copyright
law, so the law treats the expression as merg-
ing into the idea and denies protection to both.
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 Public Domain Content
The public domain covers material that either was nev-
er subject to IP protection (think Beowulf for copyright
or the pulley for patent) or where that protection has
lapsed for some reason. Material that’s fallen into the
public domain is free for the taking. For the most part,
this covers copyrighted works published before 1923 in
the United States. Copyrighted works published 1923-
1978 are a minefield and their status is hire an attorney.

To the best of my knowledge, only one modern court

has considered the copyrightability of board game me-
chanics. I’ll do a separate post about it because what
was going on was fascinating in its blatant taking but
suffice to say the court was clear. The case was Da-
Vinci Editrice SRL v. Ziko Games, LLC (S.D. Tex. 2014).
Although the reasoning in the case is good, it’s only a
district court opinion. Not only could a circuit court or
the Supreme Court reverse it, a different district court
is free to ignore it. Given the much larger size of the
video game market, lots of modern courts have con-
sidered their mechanics. But, there’s a lot of analysis
about code there that isn’t relevant to board games or
RPGs.
Patent law could step in and provide protection, but
there are two big challenges here: novelty (the system/
game rule is new and has not been used before) and
non-obviousness (the system/game rule wouldn’t have
been immediately obvious to an ordinary game design-
er). Because most game rules are about random num-
ber generation or conflict resolution, they are usually
iterations on existing methods. And, they are usually
obvious iterations.
So, if you have a truly special, new, and unique game
mechanic, don’t share what you’re doing until you’ve
contacted an attorney. But, you’d be on the rarer end
of the spectrum, so most designers can share their
game mechanics secure in the knowledge that they
can’t protect them anyway.

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 Works published after 1978 are almost certainly pro-
tected (even if not registered), which makes the data-
base of registered copyrights something of false nega-
tive. You can find out something is protected, but have
no clear way to identify if it isn’t. Trademarks and
patents are a little bit easier – they are based on regis-
tration status and there are online, searchable engines
for both. Patents expire after 20 years and trademarks
expire upon abandonment.

Publicly Licensed Content

Here’s the hot take of the post that’s going to get me
into trouble. Creative Commons and other public
licensing programs are fantastic. And, I hate myself for
saying this, but they can also be minefields if you want
to incorporate them into your product. There’s lots of
fantastic creative commons out there, especially for art.
And, a lot of it is restricted in various ways. Some-
times it’s something easy like only requiring attribu-
tion of the owner of the IP. Sometimes it’s a pre-made
license for use with royalties built in. Sometimes it’s
permission to use, but only for certain uses. This also
deserves a post of its own. For now, I’m designating
this as a riptide in the ocean of useable content. It
looks like it’s free and clear, until it drags you under.

Scenes à faire/Stock characters

Scenes à fair and stock characters are characters or
concepts so central to a concept or genre that they
cannot be separated from it. Dragons and wizards (in
general) are great examples here. The concepts of drag-
ons and wizards are so central to the fantasy genre that
they are inseparable from it. Writing a game where the
players take on the roles of characters in a telenovela?
Fear not, your meddling older (usually female) relative
mechanic is in the clear.

The good news is that these ideas are open for your
use. The bad news is that if there’s a close case, the
line between what’s a stock character and what’s
infringement has to be judged on a case-by-case basis.
The more your character is uniquely your character or
safely generic, the safer you are.

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 You have a wizard? That’s fine. That wizard smokes in their work, but if that other publisher decides to
a pipe, you say? No problem, I can think of a few set their book up so that it looks like the trademarked
pipe-smoking wizards off the top of my head. He book’s trade dress, there’s infringement.
lives in a tower you say? (If it were a she, we might “But,” you say, “WotC has published an InDesign tem-
get out to stock character territory since, tradition- plate that allows independent creators to follow their
ally in literature at least, the stock wizard character style! You, author, have no idea what you are talking
is an old man. Want to better protect your wizard about!” To which I respond, go and take a look at the
IP? Make your wizard diverse!) Well, lots of wiz- product page for the template and take a note of the
ards live in towers. This wizard does a lot with fire words, “…you are licensed…”
magic? Probably okay. Oh, he’s also famous for
using that fire magic to provide for others entertain- Which brings up another topic: licensing. And that
ment? I’m starting to think your wizard might be seems like a good place to stop for now.
somebody else’s wizard under an assumed name. You
tell me your wizard also makes a habit of embroiling
hairy-footed food-loving midgets in adventures that
will change the mystical geopolitics of the world? Conclusion
I’ve got something for you, and it’s a cease-and-desist
letter from the J.R.R. Tolkien estate! I hope that you enjoyed this and have a better idea
The most famous case looking into this concept is about what’s going on with intellectual property in
Nichols v. Universal Pictures Corp. (2d Cir. 1930) the gaming world after reading it. It was a lot of fun to
where Judge Learned Hand (real name) broke down put together and I want it to be a resource for creators
the characters from Shakespeare’s Twelfth Night. A across the RPG genre.
“riotous night who kept wassail to the discomfort of I wrote this guide for a couple of reasons. First of all, I
the household,” or a “vain and foppish steward who think that small creators need to have at least a rudi-
became amorous of his mistress,” are too general and mentary understanding of how America’s intellectual
allowing others to use the general idea is “the penalty property laws do and don’t protect their creations.
an author must bear for marking them too indistinct- Secondly, I’m considering writing something that dives
ly.” (45 F.2d 119, 121) into this topic in a much bigger way! But, if I’m going
to do that, I want to see that an overview like this sells
well.
Layout So, if you are interested in seeing a larger guide or even
something full book-length, download this one, tell
I really wanted to be done with this overview, but I re- your friends, and–even though this is pay what you
alized I hadn’t hit on anything that covered trademark want–send a few bucks my way. I’m not going to do
yet. That’s an oversight we can’t allow! Trade dress the hard work if I can’t get paid on the other end.
is how a product is designed to indicate its producer.
If you have a few hardback RPG books from the same
producer, go look at their spines lined up next to each
other. See how they’re all the same? That’s trade
dress. There are some elements of rulebook design
that are fine (nobody’s going to sue you for using
two columns of text or page numbers). But, copying
layout elements that are unique to one publisher is a
good way to get in trouble. So, I wouldn’t publish a
black-spined book with a portion that’s red exactly
like the 5th edition D&D books unless you’re looking
to closely engage with WotC’s legal team in a less
than amicable fashion. Generally trade dress protec-
tion can’t stop another publisher from using an inno-
vation that’s necessary for conveying the information
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Robert Fischer (Order #41584348)