By Samantha Peaslee
Congratulations! You designed a first class board game, with an intricate board, beautiful cards, unique mini-figurines, and a nice, concise instruction booklet with rules of play. After putting your blood, sweat, and tears into the development, you want to make sure you protect it using copyright registration – but how?
Before reading this post, it may be beneficial to you to review our post on the four types of intellectual property. If you reviewed that, you may know that if you have a board game, you’ll be considering protection through copyright (for your original works of authorship and creative contributions) and trademark (for your brand identifiers that let everyone know this is your high-quality work).
Obtaining copyright protection for your board game can be confusing, though. The copyright office grants registration by type of work. The general categories are literary works (e.g., books and articles), performing arts (e.g., music and sound recordings), visual arts (e.g., paintings and sculptures), motion pictures, photographs, and digital content (e.g., websites and computer programs). As a general rule, a single work must be registered as a single work. For example, a book is a single work. A photograph is a single work.
A board game, in and of itself, is not really a single work. Think of all those things we listed above – that’s several individual original works of authorship! Does that mean that you need a separate copyright registration for each of those?
Luckily, the copyright office has considered this. Board games are considered a “unit of publication” for registration purposes. The “unit of publication” rule allows a board game’s author to treat all those disparate creations that make up a board game as a single application with a single filing fee if they are physically packaged or bundled together as a single unit. This includes board games, with the full collection of their board, card, pieces, and instructions. It can also include examples such as a multimedia kit that contains a book, CD, and stickers together, or a jewelry set that includes a necklace, bracelet, and earrings.
To take advantage of the “unit of publication” rule, an author or owner needs to make sure their work qualifies. A couple of these qualifications may trip up board game creators or developers. For example, to qualify as a unit of publication, all of the individual parts of the application must have been published as a single unit on the same date. So expansions typically cannot be bundled in with the original version as a single unit of publication. Additionally, a new edition of a game, with updated cards or new figurines, would need a new registration.
Another requirement that may trip up board game creators is that the copyright claimant for all of the components claimed in the unit need to be the same. This is not typically a problem if a company is the copyright owner, with all authors having either contributed under work-made-for-hire rules or having assigned their contributions to the company, but it can be problematic if one artist developed the board and rulebook and another developed the cards. Developers should consider using processes or contracts that allow for them to be a unified owner to create a single application.
If you are a board game developer or creator looking for more information about protecting the art and creative components of your board game, the Copyright Office has issued a circular on registering multiple works, including works as a unit of publication, that contains the requirements. Circular 34. You can also reach out to our attorneys at Polaris Law Group to discuss the ins and outs of your particular application.
