Pushing the boundaries of copyright protection? Card, board and football games

Wait a minute girl!
The copyright club may
be not as exclusive as you think

Still hung-over (well, kind of …) from last Friday's World IP Day celebrations, this Kat has realised that the week that is just about to end has opened up new (attempted) perspectives on the scope of copyright-protectable subject matter. 

Card and board games

Firstly, from Katfriend Adrian Kleinheyer (Bardehle Pagenberg) comes news that Spiele-Autoren-Zunft e.V. (SAZ, this being the German board and game designers association) has launched a petition to have board and card game designers acknowledged as authors under the German Copyright Act. The core claim is that

"Game designers are imaginative composers, combining innovative and known game elements into a new whole. The instructions resulting from this define the players' possibilities of action. So the original idea becomes a work that is also relevant in terms of intellectual property rights. The game composition can be abstract or embedded into a themed setting. It aims at generating emotions, good entertainment and excitement, and challenging the human mind and individual skills."

SAZ's feeling of inadequate protection has became particularly strong since the refusal of Fachgruppe Spiel e.V. (this being the federation of German game companies) to acknowledge that game designers are authors and are, as such, deserving of copyright protection. 

However, the story behind the struggle of German game designers for their rights started quite a long time ago. 

In 1988, following game leading company Ravensburger's refusal to indicate the name of the game designer on game boxes, 13 game designers signed the Coaster Proclamation, in which they made it clear that none of them would give their games to a company if the author's name was not written on the box cover.

In 2011 SAZ launched the "Games also have authors" campaign to have game designers' names mentioned in publications and promotional contexts relating to their games.

(American) football games

Another interesting piece of news concerns football and video games and is something which comes from the US. No need to say that all this was brought to this Kat's attention during one of her daily visits to The Hollywood Reporter's website. 

Apparently there will be soon a jury trial over American football videogame Madden NFL, and this will involve discussion on topical issues, including whether it is possible to protect the design of football plays and formations.

As explained by Eriq Gardner, contrary to plaintiff Robin Antonick's submission, defendant Electronic Arts argues that football plays cannot be subject to copyright protection because they do not fall into any of the eight subject matter categories defined by the US Copyright Act: 

OK, but can you at least
describe what a 'work' is under
the Berne Convention?

"Only one of those—'pantomimes and choreographic works'—even arguably could include football plays and formations. But the Copyright Office has clarified that 'a selection, coordination, or arrangement of functional physical movements such as sports movements, exercises, and other ordinary motor activities alone do not represent the type of authorship intended to be protected under the copyright law as a choreographic work."

We'll see what copyright future (if any) lies ahead for such a playful potential subject-matter.

Speaking from an EU perspective, this Kat has already taken the view that subject-matter categorisation is just exemplificatory under EU law (as interpreted by the Court of Justice of the European Union, CJEU). It is thus sufficient that something is a "work" and is "original" to be potentially eligible for copyright protection. With regard to UK copyright, also Mr Justice Arnold recently held that 

"In the light of a number of recent judgments of the CJEU [in primis Case C-5/08 Infopaq, Case C-393/09 BSA, Joined Cases C-403/09 and C-428/09 FAPL, Case C-145/10 Painer, Case C-604/10 Football Dataco and Case C-406/10 SAS ], it may be arguable that it is not a fatal objection to a claim that copyright subsists in a particular work that the work is not one of the kinds of work listed in section 1(1)(a) of the Copyright, Designs and Patents 1988 and defined elsewhere in that Act. Nevertheless, it remains clear that the putative copyright work must be a literary or artistic work within the meaning of Article 2(1) of the Berne Convention."