IP, Morality & The Gaming Industry: Bang! — New Copyright Decisions

Bang! BoxEight years ago I wrote an article called “IP, Morality & The Gaming Industry” where I bemoaned the fact that Intellectual Property don’t adequately protect game creation. Games like AquariusBarbarossa, and Commands & Colors got ripped off to varying degrees, and the designers didn’t have a lot of legal fallback. That’s because copyright only protects the concrete representation of a game and patents, which could protect mechanics, are too expensive.

Today, that understanding of intellectual property law seems to be changing, so I wanted to post a short news piece talking about two new US court decisions.

Spry Fox vs Lolapps (2012) got quite a bit of attention a few years ago. It’s about an app, not a board game, but it’s now being used as the basis of more recent decisions, so it’s worth looking at. The suit centered on a rather innovative gaming app called Triple Town. Like many puzzle games of recent years, the object is to move identical objects together in a small grid, but here they form something else. Then another game called Yeti Town came around and Spry Fox, the Triple Town publisher, said it was a rip-off.

The judge held that “the rules of the game are entitled to (at best) thin protection”. This fact has been the bane of game designers for years, but it’s consistent: you couldn’t copy the way someone wrote up their rulebook, but you could copy the mechanics described in that rulebook. However the judge also said: “a writer who appropriates the plot of Gone with the Wind cannot avoid copyright infringement by naming its male protagonist ‘Brett Cutler’ and making him an Alaskan gold miner instead of a southern gentleman.” Through a somewhat impenetrable haze of legal mumbo jumbo, the judge ultimately said this meant that a game could infringe another if they were “substantially similar”, even if all the words and pictures (which are what copyright traditionally protects) were different.

The judge never made a final decision, but he refused to dismiss Spry Fox’s copyright infringement claim, which led the parties to settle out of court. The fact that a copyright claim might be valid for a rip-off of just the mechanics was something pretty new — and something that could offer a lot of new protection to game designers.

DaVinci Editrice vs. Ziko Games (2014) is a more recent court case that caught my attention because it actually was drawn straight from the board game community. DaVinci’s Bang! had been pretty precisely replicated (with some rules additions) as a Chinese game called 3 Kingdoms Kill; when ZiKo Games started distributing an English version called Legends of the Three Kingdoms, DaVinci decided to take action.

On August 8, a judge in Texas ruled on an initial motion by DaVinci for an injunction against ZiKo selling their game. He denied DaVinci’s injunction but (like his predecessor) simultaneously refused to dismiss the infringement claims.

Like his predecessor, this Judge also went to the question of substantial similarity. He tackled the special-ability characters first, saying “Given the similarities between the attributes of the characters in Bang! and in LOTK, a reasonable factfinder could conclude that the characters of the two games are substantially similar despite the transposition and translation from the Wild-West theme of Bang! to the ancient China theme of LOTK.”

He similarly thought the actual player roles might be protectable, saying: “Under the case law, such roles and their expression are not merely rules that prescribe what the players may do; the roles and their expression also describe how the players may do it. If the roles describe the content of the players’ interactions in ways that are ‘sufficiently original or creative to merit © protection,’ players’ roles can be protectable.”

Though this was an initial decision, I wouldn’t be surprised if Divinci and ZiKo are now in talks to get ZiKo’s butt out of a sling.


When I wrote the first article in this series, there was no reasonable way for a game designer to protect what he created, and so he had to depend on the morality of other designers (and of the gaming industry as a whole) not to rip him off. As my original article noted, sometimes that morality failed the designer just as much as the law did.

Today, a few judges are making a new sort of decision about what constitutes protectable expression, and it’s just possible that moving into the 21st century game designers might not have to depend entirely on the good will of their fellows. I’m not generally a fan of lawsuits, but it still would be nice if the law did protect These Games of our Ours, because if not … it’s the Wild West.

Thanks to Christopher Allen for the pointer to the recent Bang! lawsuit. My article here is based in part on a Gamasutra article by Zachary Strebeck and on a Geek Dad article by Jonathan H. Liu.

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4 thoughts on “IP, Morality & The Gaming Industry: Bang! — New Copyright Decisions

  1. Pingback: Today in Board Games Issue #229 - Kickstarter Bubble Analysis; Should I Buy Hyperborea? - Today in Board Games

  2. It will be interesting to see where this goes … because it could be argued that Bang! itself is just a slight modification of an existing concept that’s been out there for years. I agree that protection is warranted in some clear cut cases, but I hope that it doesn’t suffocate the industry.

    • I think you may not realize how similar Three Kingdoms was to Bang!. It was the same game with the same character cards and the same role cards and the same playing cards. There were slight variations, to the extent of what you’d see in a revised second edition of the same game.

      And, the case law is only talking about games that are that similar (“substantially similar”), not the natural evolution of games, say from Werewolf to Bang! I don’t see how this could stifle.

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