Intellectual Property and Tabletop Games

Abstract

There is a rich body of literature regarding intellectual property’s (IP) “negative spaces”—fields where creation and innovation thrive without significant formal protection from intellectual property law. Scholars have written about innovation in diverse fields despite weak or nonexistent IP rights, such as fashion design, fine cuisine, stand-up comedy, magic tricks, tattoos, and sports plays. Instead, these fields rely on social norms, first-mover advantage, and other (non-IP) legal regimes to promote innovation in the absence of IP protection.

As a comparison to these studies, this Article explores the role of IP law in facilitating innovation in tabletop gaming, including board games, card games, and pencil-and-paper role-playing games. Over the past few decades, the tabletop gaming industry has seen a proliferation of innovation, but there is suprisingly little in the academic literature about IP law and tabletop games. IP rights, including patents, copyrights, and trademarks, each protect certain aspects of games, while at the same time being constrained by doctrinal limitations that leave considerable flexibility for others to develop their own games and adapt or improve upon existing ones. There are also numerous examples of user-based innovation in tabletop gaming. This Article concludes by contending that IP rights, as well as their limitations, play a significant role in facilitating the robust innovation presently occuring in the tabletop gaming industry.

Keywords: intellectual property, ip, legal theory, innovation, negative space, tabletop games, board games, roleplaying games, card games, patent, copyright, trademark, trade secrets, design patents, user innovation

JEL Classification: K39, L82, O31