In Role-Playing Card Games, Where is the Line Between Protectable Expression and Unprotectable Rules of the Game?

By Mark Wittow and Eliza Hall

The United States District Court for the Southern District of Texas recently examined the scope of copyright protection for role-playing card games, parsing the use of parallel themes and characters.  The court ultimately granted summary judgment in favor of a distributor accused of infringing a role-playing card game by creating a substantially similar game, but in a parallel (different) setting. This case provides guidance to companies that create games in traditional or digital media, clarifying where the line should be drawn between the protectable expressive aspects of a game and unprotectable rules or underlying ideas and concepts. The court’s decision also provides a helpful illustration of the differing standards applied to motions to dismiss and motions for summary judgment.

In DaVinci Editrice S.R.L. v. ZiKo Games, LLC, plaintiff, DaVinci Editrice, manufactured a role-playing card game with a Wild West theme.  DaVinci Editrice alleged that the defendant, ZiKo Games, had effectively copied the entire game, making no significant changes other than to swap out the American West setting for Ancient China. For instance, while players of DaVinci’s game drew cards that assigned them one of four Wild West-themed roles (Sheriff, Deputy, Outlaw or Renegade), with each role having specific attributes and goals, players of ZiKo’s game drew cards assigning one of four Ancient Chinese roles (Monarch, Minister, Rebel or Turncoat), each of which had attributes and goals essentially identical to those of the corresponding Wild West role.

Although the settings, artwork and written instructions were concededly different, DaVinci claimed that the rules and procedures applicable to each role in the Ziko game effectively were identical to DaVinci’s game. For instance, in each game, only one player’s identity–the Sheriff/Monarch–was known to other players; those who drew other roles kept their roles secret. Similarly, DaVinci alleged that the conditions under which players assigned a given role could attack other opponents, defend themselves, or win were the same. The means by which players could take action were also the same: in each game, players drew one of four “action cards,” which had different names appropriate to each game’s theme but operated identically.

This level of similarity was sufficient for the court to deny ZiKo’s 2014 motion to dismiss the copyright claims, but not enough for DaVinci to defeat ZiKo’s motion for summary judgment a year and a half later.

In denying the motion to dismiss, the court found it significant that DaVinci’s game used a unique deck rather than the 52-card deck of traditional playing cards. The court also reasoned that role-playing games are much less limited than traditional games are by what it called “mechanical processes,” such as the pattern of the game board or the roll of dice. In the court’s view, the methods by which a game designer defines and shapes players’ experience in the type of game at issue are expressive elements that copyright law protects.

At summary judgment, the parties agreed that the rules, procedures and limits of game play were not protectable, and that the visual depictions, character descriptions and thematic elements of the two games were not substantially similar. The court’s 2016 summary judgment opinion thus emphasized that not all copying is legally actionable. In particular the court cited Section 102(b) of the Copyright Act, which provides that copyright does not extend to “any idea, procedure, process, system, method of operation, concept [or] principle… regardless of the form in which it is… embodied” in the work.

The similarities between the four character roles in each game were not expressive, the court concluded, either because the evidence showed that they were underdeveloped stock characters or because their attributes and goals constituted unprotectable rules of game play. Likewise, the actions available to characters were common in games where each player’s object was to kill other players. The court also distinguished a case involving video games, which have elements of scripting and plot, from a case involving basketball, which has no script. The plaintiff’s role-playing game, the court concluded, was analogous to basketball in that respect, which the court found significant because while copyright protects a game designer’s creative expression, it does not protect systems, like basketball, that merely set the stage for players’ expression to occur.

In granting summary judgment for defendant ZiKo, the court’s analysis is consistent with decisions in many other cases in which the courts have declined to protect methods and concepts, as distinct from particular expressions, from allegations of copying.  See, e.g.,  Steinberg v. Columbia Pictures Indus., 663 F. Supp. 706 (S.D.N.Y. 1987) (Moscow on the Hudson poster infringed cover illustration depicting parochial view of the world from NYC); Kerr v. The New Yorker Magazine, Inc., 63 F. Supp. 2d 320 (S.D.N.Y. 1999) (“New York Hairline” v. “Manhattan Mohawk”).

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