The legal history of Tetris, a game often cloned by new developers, highlights the importance of copyright protection in video games. While mechanics cannot be copyrighted, the US Patent Office rarely grants patents on game mechanics. However, the Open Gaming License provides a means of reusing game mechanics.
Copyright does not protect the idea for a game, its name or title, or the method or methods for playing it. Some game components, such as game rules and the concept itself, can be copyrighted or trademarked. If you use copyrighted material in your game without permission, the owner of the copyright can prevent the distribution of your product and obtain damages from you.
Courts often focus on the most obvious creative aspects of a game, such as its visual appearance and the game’s overall functionality. Trademarks cannot be copied, and infringing on copyright can occur in reproducing spell descriptions and stat blocks. Names cannot be copyrighted, but they can only be trademarked.
General game mechanics are not copyrightable, so you don’t need a license for core ideas like AC, character attributes, D20 skill/attack/save rolls, etc. Unique names that refer to one character would be considered infringement. Copyrights don’t apply to fantasies or characters, and they can’t be copyrighted.
In summary, copyright only protects the specific arrangement and use of words, not the words themselves. Game systems or processes are not protected by copyright, and the Open Gaming License provides a means of reusing game mechanics.
📹 Someone Copyrighted their Magic: The Gathering Card Deck
A copyright has been registered for a Magic: The Gathering playing card deck. Let’s go over the consequences.
Can magic tricks be copyrighted?
Magical performances are not copyrightable, as courts have ruled that illusions themselves are not. In 2014, the U. S. District Court for the District of Nevada ruled that another magician infringed a trademark belonging to Penn and Teller, who had uploaded videos to YouTube that recreated Teller’s “Shadows” illusion. However, dramatic pantomimes, which include a magic trick or illusion as its central feature, still have copyright protection. Patents can be even more problematic for magicians, as they require the disclosure of how the device or process works.
Magicians’ best protection against theft or exposure of illusions might be their colleagues, as the International Brotherhood of Magicians’ Code of Ethics requires all magicians to oppose the willful exposure of any principles of the Art of Magic or the method employed in any magic effect or illusion.
What names are not copyrighted?
Copyright is an intellectual property law that protects original works of authorship, including literary, dramatic, musical, and artistic works. It does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.
A website can be protected by copyright, including writings, artwork, photographs, and other forms of authorship. Procedures for registering the contents of a website can be found in Circular 66, Copyright Registration of Websites and Website Content. Domain names are not protected by copyright law, but the Internet Corporation for Assigned Names and Numbers (ICANN) administers the assigning of domain names through accredited registers.
Copyright does not protect a mere listing of ingredients, but if a recipe or formula is accompanied by substantial literary expression or a collection of recipes, there may be a basis for copyright protection. However, secret ingredients to a recipe should not be submitted for registration, as applications and deposit copies are public records.
Names are not protected by copyright law, but some names may be protected under trademark law. Contact the U. S. Patent and Trademark Office or see Circular 33 ” Copyright Protection Not Available for Names, Titles, or Short Phrases”.
Copyright does not protect names, titles, slogans, or short phrases, but logo artwork that contains sufficient authorship may be protected as a trademark. Copyright does not protect ideas, concepts, systems, or methods of doing something.
Publication is not necessary for copyright protection, as it is the distribution of copies or phonorecords of a work to the public by sale, transfer of ownership, rental, lease, or lending. A public performance or display of a work does not of itself constitute publication.
Copyright law will protect your photo (or other depiction) of your sighting of Elvis, but no one can lawfully use your photo of your sighting. Copyright law protects the original photograph, not the subject of the photograph.
Architectural works became subject to copyright protection on December 1, 1990, and any architectural works created on or after that date are eligible for protection. Names are not protected by copyright, and publishers of works such as star registry may register a claim to copyright in the text of the volume or book containing the names the registry has assigned to stars, but this does not extend protection to any of the individual star names appearing therein.
Is Owlbear copyrighted?
The names of creatures specific to D&D, such as owlbears and beholders, may be trademarks of TSR, Wizards of the Coast, Hasbro, or another entity.
Are magic spells copyrighted?
The Berne Convention allows member states to define copyright protection for works that are “fixed” on a physical medium. In the U. S., copyright law only protects works that are fixed in a tangible medium of expression. This means that the processes or movements required for a trick are not copyrightable in the U. S., but recordings, written descriptions, or photographs of the performance may be. The idea-expression dichotomy states that ideas are not entitled to copyright, but only their expression. Magic creators can also protect their work through choreography or pantomime copyright, as demonstrated by Teller’s 2014 case against Belgian entertainer Gerard Dogge.
Is Tiefling copyrighted?
The word “TIEFLING” is a trademark owned by WotC, and in D and D, tieflings are a race of demonic humanoid. However, trademark law varies depending on the specific case. If you create a version of an official D and D race not found in the SRD, you may infringe on WotC’s trademark if the name is similar in sound or appearance. If the race has a different name but shares significant unique characteristics with the official version, copyright may apply. Can something be a registered trademark and be declared Open Game Content?
Are spell names copyrighted?
While names are not protected by copyright, they may be subject to trademark protection.
Is the name Hogwarts copyrighted?
Hogwarts, the fictional setting for the Harry Potter series, was trademarked by Warner in 1999. The trademark covers various categories, including toys, jigsaws, decorations, clothing, printed matter, stationery, motion picture films, digital audiotape recorders, video game cartridges, and pool toys. The Wizarding World of Harry Potter, the Harry Potter-themed attraction at Universal Orlando Resort, was filed in 2007 and first used in 2010.
The trademark applies to various categories, including ornamental lapel pins, printed matter and paper goods, bags, pen and decorative decals, umbrellas, toys, skateboards, nonalcoholic beverages, ice cream, pretzels, sugar confectioneries, snow globes, clothing, glass, ceramic, and earthenware goods, and washcloths, bath linens, and towels. The first use of the trademark was in 2010.
Can you get sued for copying game mechanics?
Imitation in game development has become a cultural norm, leading to backlash against attempts to protect mechanical IP. While game mechanics cannot be copyrighted, they can sometimes be protected by patent law. For example, Warner Bros. patented Middle Earth: Shadow of Mordor’s innovative “Nemesis system”, which was criticized for its perceived hypocrisy. The game also borrowed heavily from Batman: Arkham games’ brilliant yet unprotected combat system.
Video games serve as a case study for artistic innovation without complete copyright protection. Developers are still barred from copying each other’s code, art, and writing, but they can riff on each other’s mechanics like a multi-billion-dollar musicians’ coop. This has led to limitless creative tools, solved technical problems, and provided a variety of choices and subgenres of games with mechanics that game aficionados enjoy. The Copyright Law of 1976, which serves as the foundation for modern copyright law, predated even the primitive Atari 2600 home game console.
Are D&D names copyrighted?
D&D, a fantasy tabletop role-playing game, was first developed in 1974 and has been published continuously since 1997. Intellectual property rights afford protection to specific elements of the game, including the stylized ampersand logo and text from WoTC’s books. Nevertheless, these rights do not extend to the ideas themselves. The game’s trademarks and copyrights are safeguarded by a multitude of intellectual property regimes.
Can you patent a game concept?
The granting of patents is based on three principal criteria: novelty, non-obviousness, and functionality. The game idea must be novel, commercially viable, and constitute a non-obvious invention as perceived by specialized professionals.
Can you copyright Harry Potter?
J. K. Rowling is the exclusive copyright holder of the Harry Potter series, which grants her the exclusive rights to reproduce, distribute, display, and perform her work, as well as create derivative works based on the original. This ensures that no new Harry Potter story, movie, or play can be legally created.
📹 Dirty Devs: Laniatus Games Magic 2 Master | Copyright Abuse, Legal Threats, Fake Reviews, Fake Game
Chrono.GG ▻ https://Nexus.GG/SidAlpha Ko-Fi ▻ https://ko-fi.com/sidalpha Patreon ▻ https://Patreon.com/SidAlpha Discord …
I suspect that the consequences of trying to enforce such a copyright, especially at an officially sanctioned tournament, is for Wizard on the Coast to give unto you a ban from all officially sanctioned tournaments. And possibly taking legal action against you to shut down your “copyright”. Because they’re singularly uninterested in people damaging their business model like that.
I think there’s an assumption on the part of the public and platforms that the copyright office is competent and would only ever issue a registration to someone with an enforceable copyright. This particular one is seemingly unlikely to ever be enforced but I wonder how many other nonsense copyright registrations are out there and how many are being abused with DMCA takedowns, legal threats etc.
It is unlikely that the particular deck is sufficiently original to that author. Angels&Demons decks either identical or substantially similar to the registered deck have been around since MTG first launched and it is likely that a significantly similar if not the same deck has been published elsewhere before.
I think a good example would be, could someone copyright a library of books? Yes a person can own books and arrange them as a collection in a library. However, someone would not be able then to copy/distribute those books or prevent someone else from purchasing a collection of the same book titles. It’s a fun question, but a frivolous copyright.
If this guy just wanted to flex that he is the first person to own the copyright to a MTG deck, I guess that is something. It would never hold up if he tried to enforce it though. WoTC designs magic cards each year so every year there is a ‘meta’ of what decks (with some card variation) are the most competitive. So, it’s not really even his creativity in how the cards he selected work together in the deck, it’s the game designers creativity in how the cards are specifically designed to work together, all he did was notice what the game designers did.
I played Magic during the Revised era, when the cards shown in that copyright were created. The most common decks are 2 color and black and white was a common combination. Themes are common for decks as well and angels and demons is a common theme for a black and white deck. Basically, I’ve seen, used, built, and sold SEVERAL substantially similar decks. It is an ordinary part of game play, particularly from 1990s era Magic the Gathering.
I think the analogy to recipes is spot on. Now, to be clear, I also don’t think a mere listing of the what goes into the deck would count as a derivative work regardless, as simply listing the cards does not include any copyrightable elements of the cards. Now, if you made a collage out of the actual cards that make up this deck, your specific collage could be copyrighted, except it would then invoke being a derivative work, perhaps count as a transformative work as a collage’s purpose is not to be played, though you didn’t have rights to what it’s based upon, etc.
This reminds me a little bit of the DiMarzio double-cream humbucker trademark fiasco. (Short version: DiMarzio got a trademark on humbucker guitar pickups with two cream bobbins and hexhead pole screws back in the ’70s, and they use it to keep anyone else in the USA from making any double-cream humbucker, including Gibson, who originally made double-cream humbuckers in the ’50s and ’60s. It only gets weirder from there.)
For reference, playing Magic is like playing Chess, only instead of both players having all the same pieces, each assemblies a group from the known pieces to face off against each other. One player could have 6 pawns, 4 knights, 1 bishop and a King, while the other could have 8 knights a Queen and a King. Something like that. I wonder if copyright could look at a Deck Composition like a painting. The cards are akin to each shade of paint a painter uses. A deck can be a unique creation like a completed painting made up of the various colors.
The Copyright Office previously had a circular explicitly address the copyrighting of games, which would seem to be on point. That circular “Copyright Registration of Games” (FL 108) still shows up on the office’s circulars contents page, but the link is now broken. That circular, which was quite explicit in denying the copyrightability of most game rules and related information, would seem to be on point here. Furthermore, while there is at least a colorable argument that someone could successfully defend a copyright for an arrangement of cards, that would no more (I assert) apply to every arrangement of the same cards than it would apply to the use of every arrangement of a specific percentage of (say) seven pigments on the surface of an oil painting. And since every game of Magic begins with a randomization of the arrangement of the cards (by shuffling), that would also seem to defeat his claim.
Great article, as always. I’ve been playing Magic since the mid 90’s and deck copying has been a thing since the very beginning. You can even go to websites and purchase complete premade decks that are top tier and highly competitive because they were assembled with input from pros. When I’ve gone to tournaments there are usually a handful of largely the same decks that most everyone is playing with. I can’t imagine anything like this copyright ever being enforced. I also wanted to add that Wizards of the Coast is owned by Hasbro.
I think the implied threat here is if someone registers a similar deck in tournament play that he could sue for tournament winnings. Interestingly this is a potentially real risk if carried out since there are normally a handful or less of very similar decks that win tournaments. Further, because the pool of available cards change over time, one could imagine a scenario where top players start registering their decks for copyright and attempt to make claims for people to re-use their decks lists in later tournaments. The bit of reading I did on the topic made me think that having a collection would be sufficient, but since as you pointed out they don’t have approval to include the copyrighted works within their collection that isn’t a possible defense. Provocateur indeed.
How is this individual going to enforce this copyright? And what about people that already own these cards in this arrangement what happens to them I’m about halfway through and no mention of the company that produced the cards, I wonder what their take is on this I hope that this copyright gets rescinded
My intuition is that creating a deck is largely solving an optimization problem. Maybe you include a theme, or “cards I own” constraint, but given the same set of constraints, other humans would likely settle on many of the same cards in the final deck. No idea how that ties into IP law, but it feels like it falls outside my incredibly informal, internal definition of what copyright ought to cover. If the deck was designed to tell a story through its card choices, and deliberately made suboptimal gameplay choices even within the rest of the deckbuilding constraints, then it’d feel slightly more worthy of copyright protection. But then, would the deck itself be anything more than the medium the story is expressed in?
Oh … well when I play monopoly my winning method is to buy and mortgage everything I can till I get a set.. I have never met anyone else who does it so completely.. maybe I should copyright that… and when I play dragon warriors rpg (the book rpg) I use portal spells to store MP’s. … etc… I guess I should copyright all of these…. also when I play DnD5e I use wish armour for my flying machines … darters (pistols made of WMMs bound together) mage rifles (modified staff of the magi) to equip my high gnomes … I guess that all needs to be copyright as well… in fact.. should anyone be allowed to do anything without checking that it’s authorised. ..
Let’s say that the copyright holder explains that he has a copyright on the deck and another player gets kicked out of the tournament. Then the kicked out player takes the copyright to court and found the copyright has been invalid since filing. Can the kicked out player now sue the tournament organizers?
So, the reason I can see for them trying to copyright this is that WotC has many times compiled world champion level decks, repacked them under some grandiose name, then sold them at a premium. As such, a big shot player (or somebody aspiring to become one) might want to copyright their deck, then cash in some royalties (or get the exclusive selling rights) when such a thing happens. It’s still something utterly ridiculous to be able to copyright the deck, AFAIK, but that would be my guess on why thye wanted to do this
When you shuffle a deck you make a new “arrangement” of cards, much like several collages with the imaged “arranged” differently. But I’m wondering, can a non-related person publish a collage of 3rd pages of Marvel comic books without violating Marvel’s copyright? Each book is it’s own copyrighted item, but is excerpting the 3rd page from a book (or a hundred different books but substantially fewer than the total number of Marvel books) fair use? And by extension, is each “pack” of MTG cards is it’s own copyright and then excerpting 1 card out of several packs satisfy the very same concept? Nevertheless, the player who attempted this presumably wants an advantage in MtG tournaments. WotC could just make it a tournament rule that contestants who happen to have registered compilation copyrights of MtG cards irrevocably grant free public use of the compilation during this and any other sanctioned tournaments.
I think you’ve missed the mark on one part @8:19 regarding authorization to use. A directory of the best services in a geographic region is given as an example and that’d be a list of un-copyrightable facts. Another example would be a list of the top 10 books that entered the public domain this year or the addresses of your favourite 10 Thai restaurants in your city. Both copyrightable collections based on non-copyrightable works or works that are in the public domain. You could similarly own the copyright on the compilation of your 10 favourite books published this year. The recipe example you give is a really interesting counter. Not quite sure of how to best counter that. What would your take be on the copyright-ability of a list of the author’s top X vineyards in a region in the most efficient order to visit them. I think if there was no curation of that list (here’s the most efficient way to visit all vineyards in a region) then that wouldn’t be copyrightable as a compilation as it describes a method but once you add the curation part of the compilation it is?
I think the biggest and most practical point is being missed: If this is copyrightable (and I don’t believe it is due to game mechanics not being copyrightable in addition to Leonard’s points), then Wizards can sell pre-arranged decks consisting of his list. Why would this matter? Well, a common (or used to be) package that Wizards sold is pre-arranged decks of famous tournament winners. An attempt at a practical application of this would be to copyright the deck (again, I believe to be invalid), win a tournament or otherwise get the deck notoriety in the MTG community and then (supposedly) Wizards would have to get his permission before selling his deck as a product.
I can see wizards of the coast adding a “check for copyright violation step” LOL There are actually “archetypes” in MTG, ie control, goblins, agro, stacks, etc., while they’re a lot of them, it’s not infinite, certainly if you could copyright them, the game would grind to a halt. I assume Hasbo (owner of MTG) would put a stop to it because it would destroy their IP.
I wonder how shuffling the deck would factor into this. I would think if you are copyrighting a collection of something, the order in which they are placed is part of that. Not just ‘an ever changing shuffled pile of elements I did not create’ (Have not finished the article yet so idk if you covered it)
Magic cards have variable art depending on when they were published. Several of the cards in the deck have art that was modified to remove pentagrams. The Serra Angel card I see in the pictures is a Doug Schuler painting that was pretty iconic back in the day. It’s also white-bordered, which suggests it’s a card from the Revised Edition or Unlimited Edition, from 1994 and 1993, respectively. If it’s an arrangement of particular cards, with particular art, arranged in a particular order, what would the status of that be? Would the rarity of some of the cards affect it? I guess it’s the recipe thing; it seems analogous to describing ingredients in a very particular way, such that the descriptions would be creative. Like saying one should get one hamster’s weight of ham as pink as a baby’s cheeks.
In tournaments, part of the sign-in process is registering your deck list with the Tournament Organizers, so it would be verifiable whether or not someone was playing with the same deck. If the case came up, would Wizards be able to assert their copyright over the cards to invalidate the copyright on the deck list? They would probably support any challenges, just so they can prevent the precedent of only one person being allowed to play a winning deck.
My understanding in a sanctioned tournament you can be forced to forfeit your match. But now your out of the fees associated with that tournament and run the risk of being banned from events until wotc arbitrats the copyright claim, at that point the said copyright owner of that deck could run the risk of getting banned from sanctioned tournaments
Given that magic the gathering requires players to create decks, couldn’t it be argued that this is enough to have given him permission to create a deck (a derivative work) so long as he was not recreating the images or text of the cards. Seems like it could be an interesting case to me, if it ever goes to court. I want to see the end result if this goes to court, could make things retarded for other games moving forward without a terms of service/use.
“you don’t have people copywriting their deck then trying to enforce that against players in the game” Yet… we don’t have that YET… and MTG is some high stakes $$$ at the higher tiers of play. It’s not outside the realm of reality to think that some of the more, fringe elements of the community WOULD try to do this type of thing to mess with another player at minimum. Not everyone has the ability or money to fight such a claim were it to ever head to court, thus potentially resulting in a default judgement if someone was to take things all the way to court over such a case. The concerns being raised in this situation is less about if it’s actually enforceable, and more about bad actors utilizing the law to potentially bully others, especially given how convoluted copyright law can be. This is a greater concern about potential abuse.
I think what it comes down to is, for decades now, the parent company has sold tournament winning decks. They are costly decks that are exact combos of the decks used to win tournaments. They are usable, playable decks. I think this person realized that the players weren’t getting paid and wanted to make sure if they sold his pack, he would be entitled to payment.
It’s a database of facts, or a recipe of instructions how to make a deck. The ownership of the original cards isn’t his. How on earth could anyone decide this was copyrightable? Trade secret like coca cola’s recipe sure, but something’s seriously broken if a list of ingredients to make a “prize winning cake/deck” is copyrightable then something has seriously gone wrong in promoting the science and arts. 🙁
Magic’s community has mentality where nobody actually owns a deck idea or invents a deck. Content creators drop article after article of new decks and each others’ decks and the biggest drive is to see their deck being played by many others. Enforcement of this copyright would go against the grain in this case.
So… Step 1: Copyright your MtG deck. Step 2: The creators of the game publish a pre-made deck that uses the majority of the same cards as your deck. Step 3: Sue the creators of the game for stealing your copyrighted work for their own benefit. …good luck with that? I sincerely hope someone tries.
4:23 – Hmmm, wouldn’t the use of copyright be similar to “personal use?” EG: I can make a duplicate of a painting and hang in my house / yard… but i can’t claim it’s “original.” Now the question is, can I use copyrighted works in a competition? The competition isn’t judging the copyrighted work, but the copyrighted work directly contributes to your success in the competition….
In Germany Game rules are not copyrightable while the way they are written down is. As building a deck is part if the MTG rules every result of building a deck is also part of the rules, I would say….while not beeing a lawyer or judicial advisor…. I don’t know how it’s handled in the USA, but I’m pretty sure the guy can’t copyright a deck in Germany.
Wouldn’t the order of the cards specifically be what’s copyrighted? Like if you take the book lord of the rings, take the same words but arrange all of them alphabetically… That’s an entirely new work isn’t it? Wouldn’t taking the same set of cards, and shuffling them, give you an entirely unique “sentence” of cards? I don’t see how they could possibly defend this copyright.
it was proved that MTG is turing-complete, so could a particular deck that encodes a (nontrivial) computer program be copyrightable as software? (i actually don’t remember if it was the deck itself that was the program, or if the deck was the “hardware” and the program was written out during play, during the first round(s).)
Can you copyright an arrangement of cars? They are created by a designer, then manufacturer, then you purchase them as a retail owner. Can I copyright, say, “owning a collection of 1 Stingray, 1 Firebird, and 1 Dodge Truck”? Much like the cards, I did not create them, I don’t own the individual product copyright, I am not transforming them, and they are a collection. As the best practices and precedent point out, I CAN copyright the order of showing of cars in a show or parade, but I cannot copyright OWNERSHIP in a specific order, ie. you can copyright a show involving “Angels and Demons” drawn in a specific order and played a specific way… but that’s a copyright for the script, recording, or viewing of said order, not for the compilation of the deck.
I’m sure Wizards of the Coast (who publish MTG) have already talked to their lawyer team. But honestly, no matter the outcome of this copyright- that person has shown himself to be a “bad guy” in the MTG scene. Even though people tend to have a lacking understanding about copyright and trademark, they definitely have a negative reaction to these types of things (which in my opinion is justified in this situation). Think the backlash against the Fine Bros copyrighting “react”. Few people in the MTG scene will want to associate themselves with this guy.
This is a fundamental problem with the US Copyright department, it is clear they have employees who don’t thoroughly check what is being copyrighted or have a lack of common sense, and just sign off things easily to get through work quick. It’s infamous of how bad they are, when years ago on Kitchen Nightmares a restaurant owner copyrighted the word Hon in Baltimore, Maryland. Crazy crazy crazy. What’s next Clothing combinations? How to put potatoes on a plate?
I’m just confused on how you can copyright someone else’s intellectual property. How long until we see this happen with other TCG’s. Couldn’t you set up a “Side Board” that you wont use, but it’s still there? Make it all Zombie creatures. Just from the implying nature of a side board. Even if you don’t use them. You could still use the said “copyrighted deck” without breaking copyright. Since your side board is a part of your overall deck. lol
The very notion that you’re able to copyright a “collection” of manmade things that each have their own individual copyright that doesn’t belong to you is almost mindboggling. That would be like me copyrighting the 7 harry potter books. I don’t own the copyright to any of them, but I can copyright that specific combination of books? What does that mean? Can I make a copyright claim on everyone who owns those 7 books? (There’s gonna be a lot of people). This should never have been allowed, because we all know if it went infront of a judge, they’d laugh mr. Hovden in the face and scold him for wasting the court’s and society’s resources with his frivolous BS.
Game Mechanics arent copywrightable. Because one game uses Mana to cast spells doesnt stop another game from doing so. Because their mechanics are pretty universal, it should not be copywrightable. from ABA: In the context of games, § 102(b) means that rules, game mechanics, and any other functional elements—in addition to the overall idea—of a game are not copyrightable. This collection of cards constitues a user built function of how to play vs an opponent. Discuss…
So let’s look at this in the context of another game, like say an MMO like World of Warcraft. The equivalent would be your character build. So if someone could copyright a build which exists entirely within a copyrighted game they would be taking that part of the gameplay away from all the other players, therefore taking something of value from the original creator. Deck building in MTG may be more intricate than character building in WoW but what has been added that wasn’t possible already within the game? Where is the line? Could I copyright a CoD load out?
I disagree – The Compilation is Most Likely Protected. I think you get a few things wrong about the law: 1. “Collective Works” (e.g. compilations) are not “Derivative Works.” Title 17 defines them differently and never says one is inclusive of the other (even when ensuring to do so with other terms like Collective Work and Compilations). The exclusive right to create derivative works does not matter here. The fact that there is no exclusive right to create collected works in the statute is telling and also reasonable considering the implications of such an exclusive right. Derivative works use parts of the underlying to create the new expression. Collective works and Compilations don’t do that, they simply combine independent works into a collection. 2. You have to point out what action by Hovden was the actual infringement. Simply registering the deck as a compilation can’t possibly be an infringement on Wizards’ IP. For any claim against Hovden to prevail, it would have to show that the act of compiling the cards was itself the infringing act. But that is absurd because that would mean anyone who creates a deck of Magic cards is infringing on Wizards’ IP. The registration is not an act of creation or expression, and it can’t be an infringing act. Copyright attaches before registration, registration simply records the fact and alerts others that the creative expression exists and is protected (along with allowing access to the courts for suits for infringement). All Hovden did was create a deck and tell the Copyright office he did so, they agreed it was a protectable compilation.
Legally I’m guessing that the specific card arrangement is like copyrighing a chess set. You can’t copyright the pieces, bit you can copyright artistic expression of the set. The art involved is copyrighten. And only individual expression of the art elements of it would be protected. In the poem example, the poem itself, the reading of the poem, the article of the reading of that poem. Those are protected, not the specific cards used or the collection of them, but the specific arrangement of them in the poem format could be, but only to use them to read that poem, not as a deck to play the actual game. Also to note: MtG is now owned by Hasbro, owner of WotC.
What happens when someone has a article of say from a MTG tournament say 5 10 years ago that shows someone using a very similar deck? Would that nullify the copyright due to the deck has already been in the public domain? And WOTC could always disallow the playing of any copywrited decks in official tournaments. Unless he plans to use this deck in a tournament there is no reason to copyright a deck except see what I did I got this copyrighted and then he just starts to look idiotic. And if he become to annoying may get banned from tournaments. And I really don’t think he wants to fight WOTC with something like because I’m sure they have better lawyers.
I can understand them trying to copyright the title of their deck, but how can they have a copyright from other art material that is previously copyrighted by Wizards of the Coast, the publisher of Magic the Gathering? And if he was able to get a copyright, then other people should be able to use the exact same deck, but would not be able to use the name Angels and Demons. To me it would be like, taking songs from several of your favorite artist and putting them on a compilation CD and giving it a title. Then trying to copyright the CD title.
Its a pattern. You put time and effort to make an arrangement. Similar to music or dance. Anyone can use this arrangement but not for profit. Tournaments, exhibitions etc. Absolutely. Go for it. Rarely will there ever be damages possible but when there is yeah. Great. Just like musicians do not own the Fender brand.. but if a guitarist buys a guitar, arranges some music that sounds better a fender.. does he need approval from fender? No., he’s not copywriting the guitar but the arrangement of use on the guitar. That arrangement took work and planing.
There’s no real way for him to own this decklist in a legally protected way— the specific combination of cards is not significantly novel or new, this type of deck has been in play for a long time, it’s a supported strategy— the equivalent would be trying to copyright your specific gameplan in Chess, when people have been playing that way for decades already, or trying to copyright a specific hand in Poker.
I can see a large number of reasons how this would fail (merger, composition et cetera). But if it didn’t, having the copyright doesn’t prevent some one from using that deck? What is copyrighted is ‘the expression of an idea in a tangible medium’. Playing with the deck isn’t a tangible medium of expression, so doing that isn’t a copyright offense?
I have like a million questions after seeing you bring up the beeple NFTs and collages about ownership of those. I’m sure it’s covered in the terms when you purchase an NFT, but especially for online works that don’t exist but for computer code that’s easily copyable or reproducible in ways that real life works just aren’t, it leads to interesting questions. Let’s say Beeple had sold one of those images to someone, could he still use it in his compilation without permission from the person who bought it? Or because it’s transformative in nature it would be fair use? I don’t think selling an NFT is the same as selling the copyright for the image, is it? Do you actually own the image when you purchase an NFT or do you just own that particular copy of the image? Is it like buying a painting from a painter or is it like buying a print of that painting? I feel like a lot of this is untested waters, and by the nature of things on the internet being made up of easily copyable code it makes it hard to distinguish, especially if you only own the NFT of an image but not that image, theoretically you would still have the right to post that NFT image places, or sell the NFT itself and you wouldn’t be violating the copyright of the image. Could you not make prints of your NFT and sell them as legitimate? How would you even enforce ownership on an item that is as easy as taking a screenshot of the thing to “own” as well. I mean, if it’s just one or two people, fine, but like with memes where it’s millions of people copying and posting theoretically copyrighted works it’s not easy to enforce and seek remuneration.
Here’s some context that I think is important. There are dozens of web sites that publish winning decklists, doing articles, selling cards, or telling players the current meta. These businesses sell cards, sell adspace and directly profit from competition decklists, often without consideration or premission of the author. Competitive deck lists can take hundreds of hours of tuning to produce. Now does that mean a deck made by a player is copyrightable? Maybe not. Does that mean that a player should maybe have connections to the revenue generated from the business surrounding their deck? It’s complicated to be sure. I can see why a competitive player would want to do this..
My initial impression as a layman and before finishing the article is that copyright probably does not and should not apply here. To me, it’d be the same as if I burned a mix of music I don’t own to CD and tried to copyright that. I don’t own any of the music, nor do I have a license to it except for my personal use, so what right do I have to protect my personal compilation? What standing do I have? So, now I’ll watch the rest of the article and see what Leonard says. Pretty similar but more educated on why. 🙂
The effect this has is (at worst) to put people off of collecting these cards (unlikely) however the mere suggestion that it could have a negative effect on sales would be enough to trigger data gathering for a claim of damages against lost revenue…. thus this nuisance attempt at introducing bogus copyright could technically result in a lawsuit against the twit trying it on…. of course the legal expenses would ruin him…
Couple items for Leonard’s benefit – most local shops for a Friday night magic tournament won’t do this, but a bigger event with 30 or more players will typically have you register your deck list before the tournament begins. This is to prevent cheating and players will randomly get “deck checked” by judges especially in later rounds. I have seen on more than one occasion players be penalized a game or match loss for having one sideboard card in their main deck which does seem a lot like cheating since I never made this mistake. The sideboard is a 15 card set you can exchange cards with for games 2 and 3 of a single match, but it must revert to the deck list format between matches. A typical standard tournament has a minimum deck size of 60 cards, but everyone wants to win so 60 is the size almost everyone chooses. You are limited to 4 copies of a card unless it is basic land, which powers the other cards. This means I could easily build a mono white weenie deck consisting of 20 plains, and 4 copies of 10 different cards, mostly creatures to swarm my opponent. (This archetype is as old as the game itself). Furthermore, in a standard format only the last 2 years worth of cards are available for me to choose from, quickly making the list of optimal cards of that color short. Wizards mixes cards into sets that are sub optimal for constructed play as players also do randomized “Limited” formats such as booster draft and sealed events. In short, for a given metagame, you know what is going to be in the deck when you know which type of deck the player has built, it will be basically the same that everyone else playing that deck style will have at the event, within one or two cards.
I wasn’t with you until the recipe part. Like I knew that it would be stupid to allow such a copyright, but I couldn’t think of a legal reason against it. For example, your argument that he was just arranging the cards to use them in their intended purpose doesn’t really work. Think of an old fashion watch for example. The creator may not have the copyright to each individual gear or internal mechanism, and they are being used for their intended purpose, but the watch configuration would still be copyrightable. However, the recipe explanation convinced me of the difference. For example, if the watch maker simple listed the parts required to make the watch without any other instructions, then that likely wouldn’t be copyrightable, and that seems similar enough the the card situation to apply there too.
Idk if it matters. But didn’t hear anything about it in the article. The guy that did this created a business to make the deck for him specifically.) (And because of some laws I’ve been told that WotC isn’t allowed to acknowledge that there’s a secondary market for the cards. That guy also seems to do things to try to force a court ruling. Example (he had a nano scale lithograph made to make a nano scale version of a copyrighted book he didn’t have the rights to.)
question – how many cards as a set ( say you buy a pack of 10 random cards) would you have to have to infringe part of the deck copyright? though random it could be possible that you could get a set of some of the cards that would make up the deck, I also question if this deck already exists as a pro deck from a tournament. As if it does I bet he wouldn’t own the copy write as WoTC prob have a line in the agreement where they hold the right to provide the pack. Your recipe description was great. Should fail on that alone.
So does that mean anyone that makes a deck can get DMCA? Doesn’t defeat the purpose of playing the game.Considering most competitive players usually go for meta or anti-meta decks, for the current tier. Almost sounds like someone is trying to keep a competitive edge, by trying to use the law, or just wasting money.
The key thing about this copyrighted deck is, making money off it. If the main reason they want to copyright it is so they don’t have to play against this deck, ever, then that shit don’t fly. IF however, Wizards, or some of those oddball companies that are making mini decks, make a reprint of this deck, up to, and including the name of the deck, without compensation to the ‘author’, then yeah, I can see them having a case here. But back in the day, wizards would put out decks that made it to the top tournament level, complete with full card set, deck creator’s name, and a small strat guide on a card. I’m quite sure wizards duly compensated the players, and in all honesty, I wish they would put those things out again, even as they’re not technicly tourny legal.
Regarding checking of decks, all decks in official constructed ( as opposed to draft ) games must have every card in the deck declared ( writing on a handy piece of paper ). This is so that judges can know what is in your deck and in what quantity. If there is reason to suspect foul play, judges are always allowed to examine your deck. Likewise, since not all cards are legal to play in all formats, the deck registry offers a critical first chance for Judges to affirm your deck is legal. It has been a very long time since I was at an official game but I believe you are allowed to request to see your opponents decks prior and between matches.
I’m not a Magic gamer but I play other tabletop games in competitive venues. This represents the worst of the toxic gamer who exists solely to destroy other gamers, not to have fun or enjoy gaming with his fellow gamers. As a judge/referee of the game I play I would ban anything that’s this toxic and destructive to the scene. And I hate bans but sometimes they are called for.
Another angle that maybe no one is thinking of is the creation of World Tournament decks. Typically, the top players from the world tournament get their decks made available to purchase as limited tournament edition decks. I wonder if this would be a hurdle to WotC directly reproducing his deck to sell if he won the world championship. They could easily just add a basic land or swap a single card to get around it, but then I’m not sure they could say that it’s the world champion’s deck.
The analogy with the recipe was the most interesting imho. But why are recipes (list of ingredients and a simple set of directions) not copyrightable? Because they are procedures or processes? Or because it is not creative enough of a work? Or is it explicitly enumerated somewhere that recipes are not copyrightable?
It’s obvious to anyone with copyright experience that this is not a genuine attempt to gain copyright over cards, but a heatseeker action designed to force Wizards to implement clear policies around the ‘ownership’ of decklists, and possibly ammunition against the way that the bar for registering copyright is so low that many facially-unenforceable copyrights are still registered. The merger doctrine flatly negates this copyright, and even if it does not then a decklist is a derivative work of the game itself, and more narrowly the list of the cards in the game that Wizards curates – there’s no space left for the transformative. Even if you don’t know copyright, when someone who openly describes themselves as a copyright provocateur applies for a coypright of something that seems like it shouldn’t be copyrighted, it’s a safe bet their intent is not to copyright the thing but to make it impossible for anyone else to.
This to me sounds an awful lot like the same bulshittery that is software copyrights and patents. Hell, if you only go back in time a few decades, the analogy becomes crystal clear. A deck of punch cards – a deck of Magic the Gathering cards. In one case a card contains a set of instructions for a computer, in the other a set of instructions for the players of a game. Both decks contain elements carefully picked out from some finite library in order to fulfil some criteria when run through the rule set of either a processing unit or game of MtG.
I guess that you can glue a curated selection in a creative arrangement to a wall or a piece of paper and have copyright on that … but of course you would have to buy or trade all the cards you used again to copy your work. You could argue a curated selection of cards (there’ll be more than 25,000 different cards by now) could be copyrighted if there was a lot of creativity in the selection. But I doubt that these works are copyrightable for a deck you want to play.
The “copyrighted office” is a unique compilation of individual works belonging to the office. Now registering a copyrighted work inside the copyrighted office transforms the compilation of materials in the copyrighted office making a new derivative arrangement of a copyrighted office containing both the copyrighted works of the office and the copyrighted works.
You have to register your deck in a tournament, so they could check at the gate. The other side of the issue is, decks change over time because you need to adjust to the metagame – if the deck you’re playing gets out of hand, your opponents will start including cards that screw you over, and you’ll have to change your deck to be viable again. A deck will never use the same cards for more than a month if it’s viable enough to be played at all. So trying to keep the deck in its copyrighted state is detrimental to your chances of success.
I worry about the aim of this copyright. Is he aiming for tournaments or for anyone. I can understand the importance for tournament’s but not for general play as that would ruin the game. It would be similar to a computer program, aka using code to create a program while not being the creator of the code used.
Even if he could copy right the cards he wouldn’t beable to stop someone from using the cards he could be known as the person who came up with it but beyond that he can’t say no one could use said cards because if the magic sold them to me and I’m unable to use said cards they would have to refund me my money for selling me something I can’t use that’s like dewalt selling you a drill and telling you that you can’t use it as a screwdriver…
A compilation is not a derivative work. They are defined as separate things. There is no exclusive right to make compilations that belongs to the copyright holder. I think your analysis has a miss in it. The person claiming the compilation right is not trying to limit the distribution of the cards themselves. He is not trying to sell cards, so it seems to me that there is room to prevent someone from copying the compilation by assembling other folk’s work.
Objection, the recipe exception can not be used as a basis of comparing this issue because you can not compare the cards to ingredients, and the recipe excpection only exists as it deals with the fundmental acess to food. They didn’t want some to say you can’t gain access to the meal because someone copyrighted it
Ok, so, I think you completely misunderstand how this would be used. It isn’t to prevent another player from using your deck, it is to prevent another reseller from selling this deck… I haven’t played in decades, but card reselling was a massive thing back when I did play. It was not unusual for a person to buy a ton of cards, build a deck, give it a fancy name and resell it at a markup as a premade deck.. I would assume the intent was to prevent other resellers from selling the exact same prebuilt deck as he was selling.. Does that change anything in the legal analysis? No clue, that’s your job, but I can definitely understand the copyright intent based on how the community used to behave…
He may only be a provocateur, but who is going to be willing to hire a lawyer or counter sue…. over a deck of cards? In the meantime he can at least make claims against people. There’s “big” YouTube websites and website dedicated to deck building. If someone has a similar deck on their website and he can send takedown. It sounds silly and like he’s just being ridiculous, but I bet we’ll see him send takedowns.
I’m not a lawyer but it seems to me the answer is much more obvious. If you go to the copyright online database and look at the claim there, the copyright work type is listed as ‘text’. The text of the list, like any other work of text (such as literature or poetry) is itself copyrighted. The thing it describes is not.
can you copyright chess moves? often times attributed to the innovator, but i don’t anyone would think to copyright these moves. to me, this feels like the same territory, its one thing to claim an order of cards as your own for notoriety is one thing, but copyrighting already copyrighted material. his ordering of someone else work is this instance isn’t unique, his combination would have already existed in the random astronomical ordering in card selection. can you copyright plays in professional sports, offense and defense formations, etc.? seems in the same landscape.
I disagree with you on a couple of points. First, while I’d agree that the deck recipe itself isn’t copyrightable, MTG frequently features an often large number of different artworks for the same card – in particular, the resource ‘land’ cards have hundreds of different versions for the exact same thing. It’s clear from the image that Mr Hovden posted that he has deliberately selected ‘oldschool’ or original printings for the cards he’s collated. I think this demonstrates a clear artistic or stylistic intent, and there might exist a narrow copyright for Mr Hovden’s deck using the ‘Angels and Demons’ deck recipe combined with Mr Hovden’s art choices for that recipe. As for ‘practical consequences’, consider a tournament with a significant cash prize. Upon Mr Hovden noticing an opponent is playing a ‘substantially similar’ deck to one he has a registered copyright for, Mr Hovden tells his opponent that unless they concede the match (allowing Mr Hovden to win the prize), he’s going to vex them with a lawsuit that just might have enough substance to avoid summary judgement, and any costs shifting provisions. Mr Hovden could also register a number of copyrights before the tournament for decks he thinks will be popular as a way to increase his chances of walking away with the cash prize.
Does it even matter to teh copyright office. They don’t determine if something can be copyrighted they let the courts decide. Also, you could argue this is mechanical in nature. Just like you can’t copyright a electronic circuit that is common. Each card acts as a mechanical part. Now they could probably patent the deck and that might be enforcable. The other issue I see here is similar to the gaming lets plays it could be that all combinations of cards is held in the orginal copyright.
In a tournament, if this guy brings proof that he’s registered the copyright his deck, the offending player would be disqualified. This guy would then take the offending player to court at a later date. But that’s not the reason for registering his deck. He’d just drop the lawsuit altogether. He doesn’t want money, he just wants to disqualify the other player. That’s all this is about.
My question is what if someone else who has zero knowledge of this guy’s copyright happens to create a deck that is nearly identical or even identical then what. You can also think of it this way what if they are just doing this to stop potential competitors in an upcoming tournament and then this turns into the person is using the copyright law to remove potential competitors and remove the potential for fair competitors.
As a Magic player with cursory legal interest, the only possible way I could see a copyright claim having any ramifications would be in terms of prize money/merchandise at the tournament in question. The question then being does the intent to play a copyrighted deck of cards at a tournament to achieve some material profit count as a commercial interest insofar as competing with the copyright owner in the same tournament. If said deck of cards happens to win the tournament, could the copyright holder sue for the prize money/material as damages? Would they be able to do this even if they never played in that tournament but saw it on a article after the fact? Thanks to Merger, I guess we’ll never know.
Do you think this was done to show that he as the copyright holder had some sort of ownership of the arrangement of cards as sort of a card combination theorycrafting author? I feel that making a claim against him discovering this combination of cards and how they work (if they work well in the game and are a meta defining combination) would then be the value he’s seeking to obtain from having copy-written the combination and being the “owner” of the copyright.
There was a dude in MTG who used a deck of like 2k cards in a tourney, and effectively singlehandedly changed the rules of a card max. So if another madlad goes out of his way to register and enforce his deck in a tourney, a similar thing might happen, but that’s about the extent I think. All in all, something interesting to think about, but it most likely won’t have any ramifications. Unless if there ends up being an even more madlad judge to enforce it due to some interpretation of the statutes, and then mayhem occurs throughout the card game community. Low-key, could be interesting.
My first thought on this is that you can’t copyright a list of ingredients in a recipe. If you write a ton of instructions that part is copyrightable. But the list of what you put into it is entirely functional. A deck is purely a list of cards. Unless he wrote up a ton of stuff explaining how to play the deck he’s done the equivalent to 1 cup sugar, 2 eggs, 1 cup flour, 1 tsp vanilla. This will hold up as well as a wet paper bag in a hurricane.
For reference when you enter a high end tournament of Magic the Gathering your deck gets registered with the tournament. So you could potentially end up with a record of the full deck being used. Decks also converge to being somewhat similiar as people end up playing the best / most powerful arrangement of cards. I think one of the main concerns was that you could theoretically register a copyright on a deck you expect in the professional league and then effectively block the player using that deck until the copyright issue is addressed. Because at the higher end the professional league gets broadcasted and the ability to play is tied to the sponsor being able to broadcast your play. So you could basically SLAPP your opponents out of the league.
At the registry for a bigger Magic; the Gathering tournament you often have to show a list of your deck so judges can check you not changed it or played with cards not allowed in that tournament. Most bigger tournaments also stream their matches so the guy taking out a copyright basically made sure he never can play in big tournaments.
Your comments about recipes at ~ 9:30 might not hold as much weight as you thought. We all know computer code can be copyrighted but under your logic it shouldn’t be because it’s simply a recipe for how a computer should run: do x, then y. But computer code isn’t like a recipe. The magic decks are much more like computer code in this respect. Perhaps if Magic were played differently you’d be correct; however, the game’s core is based on choices and chance. A better question/comparison would be asking if one can copyright a highly specific color pallet to paint with. If a painter was known for using exactly such a pallet of paints and had previous works attributed to them, for example. Now I’m just muddying the waters! Take care in any case Leonard.
I wonder if this has anything to do with the fact that WotC have sold pre-built decks before that are based on ones pro players have used to win tournaments. IIRC they have the player’s signature on the box and a guide inside on how to play them in addition to the deck itself. Possibly this guy is thinking that if a pro uses ‘his’ deck to win an event his copyright might allow him a cut (sorrynotsorry) of any eventual proceeds.