I recently developed a card game. I created the cards myself, and began play-testing it among friends and relatives with some positive reviews.
My next question is, how do I go about protecting myself? Do I copyright the game? Do I apply for a patent? And would I go about doing either of these?
Any advice would be helpful and greatly appreciated.
Thanks.
Zev Steinhardt
Well you should get a patent. Hire some workers or a warehouse to begin manufacturing the game. Then…I’ll await to see it around Wal-Mart and Toys R Us. 
Don’t end up like the guy who invented “pai gow”. He was told he couldn’t patent it. So he didn’t. And he lost out on a lot of money.
Be prepared to spend tens of thousands of dollars to obtain your patent however.
I believe that copyright applies here. You want to prevent people from making copies of the game.
Getting a copyright is quite simple: go to the copyright office and download a form and send your $30. Information is here: http://www.copyright.gov/circs/circ1.html
Patents are much more complicated.
You can copyright the artwork on the cards, and patent the game itself. You can go to the Patent and Trademark Office search site and look at U.S. Patent No. 6,497,410 to see a recent “game” patent (there are lots more - that was the first one to come up in a brief search).
It’s best to consult an actual patent attorney or agent about getting a patent on your game. You may be able to get a provisional application on file for not too much money while you work on selling the product to afford a “real” patent application (must be filed within one year of the provisional).
I disagree; the game is a system of rules and therefore uncopyrightable; this is the realm of patent. I agree with ENugent that the artwork and other elements can be themselves copyrighted, but not the underlying rules system. By all means, get yourself an IP lawyer immediately; this stuff is much too complex for a non-expert to sort out.
–Cliffy
A Patent is what you are looking for. Be forewarned, the entire concept of the Trading Card Game has already been patented by Richard Garfield and Wizards of the Coast, patent number 5,662,332. If you want to patent your game, you’ll need to make sure that your game mechanics haven’t already been protected. Searching for “card games” will help you determine that.
It will be tough to come up with a system that has not already been patented. If you can, however, that’s promising. Getting funding will much tougher. Yes, you can fund it on your own, but good luck finding a game store that will carry a game that isn’t sold through a distributor. Cheapass Games (www.cheapass.com) used to take submissions, but I don’t know if they still do.
Good luck!
–
Justin
Thanks for the replies. It’s not a collectable card game, so I don’t have to worry about WOTC. It’s just a simple game where there is a goal to achieve and the player has to achieve it.
To my knowledge (and I am somewhat knowledgeable about games) there is no game out there with a similar idea.
Funding could be a problem. I don’t have tens of thousands of dollars.
Of course, I would imagine that it is a very bad idea to submit the game to anyone for manufacture or distribution without getting a patent first, no?
Zev Steinhardt
Well, the best defense is to get them to sign a non-disclosure agreement (NDA) first. Of course, all that really does is make it easier for you to sue them if they DO steal your idea. An patent or copyright accomplishes about the same thing.
You say you’re knowledgeable about card games. That probably means you’re pretty friendly with local card shop owners. One thing you may try is to chat with them to see if they know (and trust) anyone at Avalon Hill, WotC, Hasbro, FASA, West End Games, ICE (jeez, how many of those are out of business now…), etc, and try to get a trustworthy contact.
Justin
I would suggest that a copyright would be the cheapest and most effective, especially if the design of the cards and/or wording on the cards is a major component of the enjoyment of the game.
As has already been mentioned, a copyright costs about $30 as compared to the tens of thousands of dollars for a patent.
You may be interested in the following information, taken from Don Lancaster’s “Case Against Patents” (that and more is available for free at www.tinaja.com ):
A patent doesn’t stop someone from stealing your idea. It only guarantees you the right to sue someone who does.
The average patent defense costs more than $240,000.
Less than one in one hundred patented products shows a positive cash flow.
Almost any patent can be broken by showing “prior art”. You may have researched the idea thoroughly and not have found anything like it in gaming literature. But how many hundreds of years have you gone back with your research? Card games, in particular, have been around a long time. And in how many foreign languages have you done your research? All it takes is one other person anywhere in the world who wrote down the same basic idea behind the game in order to invalidate your patent.
What Mr. Lancaster suggests, rather, is that you make a profit on your product by finding a manufacturer and distributer willing to carry it, and hope to make a large profit on a short term basis. You could also try manufacturing and distributing it yourself, by having it made by a local printer and selling it at gaming conventions. Eventually, if the product sells well enough, it will be copied and there won’t be a whole lot you can do about it, because the big companies have the better lawyers.
A copyright will at least slow them down or force them to change the design when they copy the game. If the design of the game is a part of the enjoyment of the game, then a copyright may be more effective than a patent.
Again, I have to vociferously disagree. It’s kind of hard to analyze without knowing more of the game, but I’ve never seen a card game where the ultimate draw wasn’t in the rules. It’s not that hard to get around copyright when what you’re trying to duplicate is the rules system, which is uncopyrightable. For instance, let’s say Magic: The Gathering were not patented, but merely copyrighted. Then some other publisher could come along and create a “brand new” game with the exact same mechanics, but with, oh, “Generators” instead of lands, “Power Points” instead of manna, and cards duplicating exactly the same effects of Serra Angels or Circles of Protection. They could probably even advertise the game as “Based on the rules of Magic: The Gathering!” Quite simply, games, and especially card games, are usually a set of rules with accoutrements, and the rules cannot be copyrighted.
–Cliffy
But the rules are written works, aren’t they? And simply changing the names wouldn’t work either, I would imagine.
For example, I would imagine that I would be in violation of copyright law if I were to take the first Harry Potter book and simply change the name of all the characters, places, etc. Wouldn’t I? If someone simply changed M:TG to have “Generators” and “Power Points” they would still in violation of copyright, no?
Zev Steinhardt
It’s expensive to be issued a patent (full disclosure, application, back and forth with the PTO, etc.), but it’s relatively inexpensive to file a provisional application. Once the provisional is filed, the filing date for the provisional is then used as the date of invention.
If you’re considering any kind of marketing, I’d strongly suggest speaking to a patent attorney or agent (an agent hasn’t passed the bar, but has the necessary background and expertise to do patent and trademark work) and filing a provisional. Once you’ve got the provisional, you’ve got a year to decide if you think the game is marketable and worth investing enough money to pursue the patent.
My first suggestion if you actually feel this idea is worth proceeding with is to talk to a good IP lawyer – preferably one who would not be involved in collecting fees associated with patenting your idea, and who’d thus be able to give you some straightforward advice.
As has been noted, a copyright is much easier and cheaper than a patent. But it may not be what you need.
OTOH, patents are notoriously easy to break. I’ve heard people who should know say that it’s almost always possible to unearth “prior art”. If the patent breaker has money, you will probably have to spend a lot of yours just to bring them to court, with no assurance you’ll prevail.
Your best bet may be to give the game a distinctive visual appearance and then go the copyright route, hoping that it looks like a poor target to knock off.
But again, the IP attorney is the one whose advice you should follow.
There is a distinction between copying the rules and your example with Harry Potter. When copying the rules, you’re correct in that someone stealing your idea could not simply copy your rules word-for-word and simply change some words. However, it would not violate the copyright to copy the concept of the rules, and then rewrite them using the new words. Oversimplifying incredibly, ideas and concepts are not copyrightable, only the expressions of those ideas and concepts; thus the need for patents.
I forgot who said it, but I strongly agree that if you’re serious, you should consult an intellectual property lawyer.
Speaking as one who had to negotiate a settlement with an attorney regarding my inadvertent breakage of a patent on a card game, I say patenting it is the thing to do.
AmbushBug
[sub]It was Caribbean Stud. And I got off cheap.[/sub]
It is not true that the rules to a card game, even if it uses a “standard” deck of 52 cards, cannot be copyrighted. The American Card Company invented and copyrighted the game “Five Hundred” in 1906. They technically could have charged anyone for its use (for example, for printing the rules in collections of card games), or sued anyone for unauthorized use, but never chose to do so.
Of course, Five Hundred the game had the support of American playing-card manufacturers and was lucky enough to be invented at a time when card-playing was America’s number one polite pastime. So, I guess what I’m saying is…best of luck to you Zev. 
I should have done this earlier in the thread:
Your description of the rules is a written work which can itself be copyrighted, but the rules themselves are an “idea, procedure, process, system, [and/or] method of operation” for playing the game. As long as someone rewrote their own descriptions for the rule system, they would not be in violation of your copyright.
Now that I’ve quoted the statute, you should see the distinction; the book qualifies as a protectable piece of written work, while the rules system, being specifically exempted from copyright protection by Sec. 102(b), is not.
No. M:tG is a system. It’s a system used for the manipulation of specific cards, which are themselves copyrighted, but the system itself is not copyrightable. Of course, in the case of M:tG, the system is patented and protected that way, so someone creating the Generators/Power Points game would still be in violation of WOTC’s intellectual property and would be sued over it, it would just be a patent cause of action, not a copyright one.
–Cliffy
I agree with the others who have said you need a patent, not a copyright.
Copyrights arise automatically when you write/draw something, and you only need to mail a copy to yourself as proof of the day you wrote it (keep it sealed). You can apply to register your copyright, which is useful if you come into conflict with someone about it, but it’s not necessary to portect your interest in it.
Patents are difficult to get, because you have to go through the long, expensive process. But if you want to protect your invention of an idea, you need the patent.
Patents cover ideas, and copyrights cover expressions of ideas. I wish I had my Property text with me, I could look up the major USC case that laid out this theory-- a guy published a book on an accounting method. Someone else took the method, and published his own book. First guy sued, but discovered he only had a protected interest (copyright) in his actual composition of words. He had never applied for a patent (or possibly the patent had expired, don’t remember), so he didn’t have a protected interest in the methods. First guy lost.
So yes, get a patent. Get a lawyer to help you, especially one who also has experience representing games inventors to the major companies-- it may be more prudent to sell your idea, and let the games company put up the patent money and take the risk. Or maybe not-- but get a lawyer.