Zach Strebeck (aka the Board Game Lawyer) is an attorney who has covered the legal aspects of board games before. In this interview I speak to Zach about some issues that board game fans such as ourselves might encounter in our cardboard travels and how not to get the pants sued off us.

Hi Zach! Could you start by telling our audience a bit about who you are?

My name is Zachary Strebeck. I am a video game and board game lawyer, which means that I help game companies at all stages with the many legal needs they face. I’m also an avid gamer and have been a digital nomad for the past 4 years.

Please tell me about your favorite board games.

My favorites are 1) Bohnanza, because I love the negotiation aspect of it, 2) Lords of Waterdeep, because it combines a lot of the different mechanics I love into one slick package, and 3) Lord of the Rings, the LCG, since it’s got a theme I love and is playable solo (though Arkham Horror LCG is slowly taking over)

What is it you prefer about Arkham that takes it above such a beloved and venerable title like the LOTR LCG?

I stopped buying LOTR sets after the first cycle, when I started traveling full time. So I’m not even remotely caught up. Getting in on the ground floor on Arkham allows me to stay caught up! I actually prefer the theme of LOTR.

One of the things that is happening a lot right now are fan made re-themes of games such as this amazing Mad Max adapation of a classic game, Mille Bornes.

http://www.analoggames.com/story/fan-made-mad-max-movie-custom-tabletop-card-board-game/

How far is a person allowed to go with these? What are the lines that they can’t cross?

Here’s the thing with fan games - to remain totally legal, you can’t really go very far at all under US law. The artwork, the Mad Max and Milles Bornes trademarks, the distinctive Mad Max trade dress, and potentially some of the Milles Bornes base game are all protectable and give their creators/owners exclusive rights. When you use those without their permission, you’re infringing those rights.

There’s fair use defenses, but these aren’t nearly as broad as some people think, and are something that you would need to prove in court, anyway. Not selling the product could help, but probably not - you’re still taking pieces of artwork wholesale and using an existing trademark to advertise an unlicensed product. That’s a big no-no.

There’s also a de minimis defense, which could apply if you’re only making one copy for home use. But if you’re selling or distributing copyrighted material you don’t own, that’s a problem.

Now, some things, such as the game mechanics and ideas, aren’t protectable. So you can make use of those. I recommend that anyone looking to use game mechanics from another game check out my write up of the Bang! court decision from last year. It (and the court’s written opinion) discuss what is and is not protectable in a game under copyright law.

How likely is it that someone will get in trouble for a de minimis copy, and what sort of trouble could they potentially get into?

It really depends on the exposure and the amount of money potentially at issue. The chances of a big company suing someone very small with no assets is much lower than if you are an established company with lots of money. There just isn’t enough there to justify the costs of a lawsuit, which can be in the hundreds of thousands of dollars and up! There’s also the issue of exposure - if the copyright owner never sees your copying, especially if it’s tiny, they most likely won’t be suing.

However, in this age of the Internet where your enforcement mechanisms are crowdsourced through a rabid fanbase, there are a lot of eyes out there. I have clients that are alerted to infringement regularly through their fans, and we take appropriate action to protect their trademarks. For the tiny infringements, however, we generally just send a letter notifying the infringer and they will stop. Neither side wants a legal battle and often it is an honest mistake. It’s the bigger, more established companies who should know better that we get the big guns out for.

What about fanmade companion apps (score keeping, automatic shufflers)? Are those in the clear? What if I did up a digital version of my favorite game and published it for free online?

A fan made companion app could potentially be fine. It depends on what you’re using from the original game. Using their trademark (usually the game name or the company name) in a way that isn’t allowed by the law is infringement. This is legally actionable and not recommended. I cover this kind of thing more in a post on my blog about making unauthorized game accessories.

On the other hand, making a digital version of your favorite game without permission is usually going to be a copyright and/or trademark violation. This is almost always a bad idea.

The way I think of it is - you’re going to be spending a lot of time and effort to create something. Why just recreate someone else’s work? The whole industry moves forward if we create new art, new experiences, and new intellectual property.

Also, if you’re only using existing works in order to get an easy leg up against the competition and trade on an existing fanbase, that’s exactly what trademark and copyright law is trying to stop. So it makes sense that it would be illegal.

As a media creator, what can we do to protect ourselves? What if I write a review that a publisher deems unfair or overly negative, do they have any recourse? Where is the line for defamation/libel cases against us? Should someone in the industry be super trigger happy with litigation how can we respond?

We’re gonna be sued by this guy

Anyone who creates media and puts it on the Internet for the public to see should have a basic knowledge of their rights and liabilities as a media creator. You could be unknowingly defaming someone, but the analysis of this is a little murky and depends on a number of factors.

For a good background on this, I recommend the EFF’s page on the subject, or you can check out a post I wrote for Stonemaier Games’ Kickstarter Lessons blog on defamation law for Kickstarter creators.

As far as responding goes, if you know the law, you can make a quick judgment and respond accordingly. However, at the risk of being self-serving, it’s often a good idea to leave the response to an attorney who understands the law. The mere presence of an attorney can also stop frivolous attempts to quiet free speech without any further trouble. Often, people send out cheap and easy cease and desist letters just to shut you up or shut down competition. An attorney letter in response shows that you’re serious and can weed out these weak attempts to scare you into compliance.

Let's say I come up with something really cool, like a new form of card drafting that will be the next smash hit. What can and can't I do to protect my new mechanic?

The action wheels of Noria

For game mechanics, the only thing that can really help you is a patent. Unfortunately, these are quite expensive and not worth it for small game developers. The only other thing you can really do is create the definitive version of that mechanic, and be ubiquitous in the industry as the one who invented it. Easier said than done, I know.

I'm not very familiar with law myself but one of the things I DO know is that you can't patent mechanics. However, at the same time, Magic: The Gathering, titan of the industry that it is, has patented Tapping, the act of turning a card sideways – however I the patent extends only to the word Tapping and the icon? Is that something I understand correctly?

My understanding is that it was the sequence of gameplay events that was the subject of that patent (which is now expired), and tapping was just part of that. The tapping icon may have been protected by copyright, and the term “tapping” may be protected by trademark.

I think that the real protection offered by that patent is Wizards of the Coast’s large amounts of money to go after you. After all, a patent is only as good as the amount of money you can spend going after infringers (unless you’ve got an attorney working on contingency).

What about the patenting of the meeples of tiny epic quest where they can slots where they can hold things in their hands? Does this mean no other game can have meeples holding things?

Patents don’t actually give you any affirmative right to use the patented thing. This is because your patent may include other “nested” patents, which you may not have any rights to.

What patents actually do is allow you to prevent others from using the patented invention or process. So in this case, if a patent for meeples with slots in their hands is valid, they can theoretically prevent others from making use of it.

Zach, thank you for all these highly technical answers. I’m sure I speak for most of our lay readers when we say you have really helped us out.

My pleasure! But remember, I’m a lawyer, but I’m not YOUR lawyer. So please realize that this is just general legal info, and that you should get your own attorney for specific legal advice.

Finally, if I asked you to make a board game about board game law, how would you make it? What would it be about? (Bonus: Do you have an artist in mind?)

I think that it could work as either a deckbuilding game or as a solo/co-op card game where you fight an encounter deck (ala LOTR or Arkham Horror LCGs). As for an artist, I’m partial to Robert Ball, who does the Beautiful Death posters for every episode of Game of Thrones. I feel that he would really convey the kind of work I do ;)

Thank you for the interview, Zach! How can people find you online?

You can find me, my writing and my podcast all at gamelawyerblog.com! That’s probably the easiest.

Interview with Zach Strebeck - The Board Game Lawyer

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