Game On! Copyrightability of Board Games
Although this year’s National Board Game Day has come and gone, we’re still not quite ready to pack up our pieces. From classic family-fun staples like Candyland and Clue, to modern “engine-building” hits like Wingspan and Terraforming Mars, board games of every genre can truly monopolize one’s downtime, transforming ordinary evenings into arenas of strategy, luck, and a little friendly rivalry. They blend artwork, storytelling, written rules, and interactive design into immersive experiences that bring players together around the table. So, grab your tokens and get ready to make your first move—it’s time to roll the dice on a question that every tabletop fan is wondering: what exactly is the copyrightability of a board game? The short answer: while not every aspect of a board game is protected by copyright law, its original and expressive elements can be.
A Roll Through Board Game History…
Board games have a long and remarkably rich history, stretching back thousands of years across cultures and continents. One of the earliest known board games, Senet, originated in ancient Egypt around 3100 BCE. It was often placed in burial sites, suggesting that play held both a recreational and spiritual significance. Subsequently, the modern board game industry began to take shape in the 19th and 20th centuries alongside the rise of mass production and commercialization. What were once relatively simple games evolved into more complex experiences, with titles such as Monopoly, Scrabble, and The Game of Life becoming common household fixtures.
In more recent decades, there has been an explosion of variety on the board game market, with emphasis now being placed on depths of strategy, resource management skills, and innovative game mechanics. Early hits like Catan (originally known as The Settlers of Catan) helped spark this movement, paving the way for other modern favorites like Ticket to Ride, Ark Nova, and Dune: Imperium.
Copyrightability of Board Games
Under Section 102(a) of the Copyright Act, copyright protection subsists in “original works of authorship fixed in any tangible medium of expression.” To determine whether a board game qualifies as copyrightable subject matter under Section 102, it is important to recognize that a single board game contains many distinct components, each of which may separately be copyright-protected subject matter. The U.S. Copyright Office has stated that “[s]ome parts of a game may be subject to copyright if they contain a sufficient amount of literary or pictorial expression. For example, you may be able to register the text describing the rules of the game or the graphic art appearing on the gameboard or container.” In practice, this means that many of a board game’s creative elements can be independently protectable.
For example, the art and graphic design of a board game—including the board layout, card illustrations, and unique visual components as it fits into the overall storytelling of the game—may be protected as a “pictorial” or “graphic” work under Section 102(a)(5). These works encompass two-dimensional artistic expression, including illustrations, designs, and visual compositions that would almost certainly satisfy the “modicum” of creativity required for copyright protection. Illustrator Andrew Bosely, for example, has made a name for himself in the tabletop community through his intricate and beautiful artwork for various recent board games, including the famous Everdell game series.
Likewise, the creatively written rulebooks and instructions of a board game can be protected as literary works under Section 102(a)(1). This means that while the underlying standard mechanics of gameplay are not protected (e.g., “roll the dice,” “move piece to Start,” or “shuffle the deck”), the specific wording, structure, and presentation of the rules can be. Moreover, any character backstories (and the characters themselves) or narrative aspects of rulebooks—such as a campaign story or world-building setup—certainly reflect creative expressions protected by copyright law.
Lastly, three-dimensional elements of board games may also be protected by copyright. Miniatures, figurines, and other stylized game tokens can be protected as sculptural works under Section 102(a)(5), so long as they embody the low threshold of copyrightability for original artistic expression. This can include detailed character figurines, custom game pieces, and other sculpted components that go beyond purely functional or utilitarian designs.
Idea-Expression Dichotomy: What Passes “Go” and What Doesn’t
At the same time, recognizing what is protected by copyright requires an understanding of what is not. Copyright protection does not extend to any systems or processes, which includes methods of gameplay. As a result, while a board game’s visual or structural elements are copyrightable, board game designers cannot prevent others under copyright law from using similar mechanics or gameplay concepts employed within the game itself.
This principle traces back to the Supreme Court’s decision in Baker v. Selden, a case that, while not about board games, set the stage for this important doctrinal distinction. In Baker v. Selden, the Court held that although an accounting book explaining a bookkeeping system could be protected as a literary work, the system of bookkeeping could not. As Justice Bradley explained, copyright law protects the author’s description of a method, but not the method itself. According to Section 910 of the Copyright Office’s Third Edition of the Compendium of U.S. Copyright Office Practices, “[u]ncopyrightable elements include the underlying ideas for a game and the methods for playing and scoring a game. These elements cannot be registered, regardless of how unique, clever, or fun they may be.” Consequently, this means that game mechanics—the underlying systems, rules, and processes that govern how a game is played, such as turn structure, scoring methods, and movement structure—are not protected.
This concept of excluding a game’s systems and methods from the scope of copyright protection was expanded upon by a Texas federal court in DaVinci Editrice S.R.L. v. ZiKo Games, LLC to include a game character’s abilities, holding that the defendant’s Legends of the Three Kingdoms card game did not infringe DaVinci’s copyright-protected features in its Bang! game, despite similarities in “special abilities” and “life points” that affected gameplay. Here, the court concluded that a character’s special abilities are “neither literary nor artistic,” as they are merely a “subset of the rules that make up the game system.”
Stock Characters vs. Copyrightable Characters
“Stock” characters are characters that are generic, predictable, or commonly used within a genre. For board games, this might include a simple pawn, an indistinct soldier token, or a generic “wizard” or “merchant” with no unique visual or narrative traits. These elements in their generic, “stock character” form are considered too commonplace to be protected by copyright for a variety of reasons as explained in a previous blog post.
By contrast, “creative” characters that go even a small step further than a trope or stock character from the public domain may be protected by copyright. Section 911 of the Compendium states that “[t]he original, visual aspects of a character may be protected by copyright if they are sufficiently original. This may include the physical attributes of the character, such as facial features and specific body shape, as well as image of clothing and any other visual elements.” A classic example—Mr. Monopoly, the mascot of the world’s favorite economics-themed board game. Dressed in his signature dapper ensemble comprised of a top hat, cane, and tuxedo, Mr. Monopoly embodies a specific and minimally creative expression of a robber baron that goes well beyond a generic “rich man,” representing a stylized and creative choice in design presentation.
Utilitarian Aspects: Functional vs. Expressive Elements
Another key aspect of determining the copyrightability of board games lies in the distinction between functional (utilitarian) elements and expressive (creative) elements. Under Section 101 of the Copyright Act, the scope of protection for pictorial, graphic, and sculptural (“PGS”) works “shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned.” Board games, by their very nature, are comprised of a slew of highly functional objects; game boards, cards, tokens, dice, and miniatures all serve a practical purpose of facilitating gameplay. A token marks a player’s position, a card conveys information, and a board organizes movement and interaction. Based on these functional aspects alone, these elements are not protected by copyright.
However, that does not mean these components are entirely outside the scope of copyright protections. Many of these same elements also contain expressive features that are separable from their functional roles. For example, while the idea of a token used to track a player’s movement across the gameboard is not protectable, the specific artistic design of that token, including its shape, detailing, color scheme, or character depiction, may be. Similarly, a game board’s layout as a system of play is functional, but specific choices of how to express that layout via creative illustrations and stylistic choices can qualify as protected expression.
The functional vs. expressive distinction is based on the copyright law’s separability test, which determines whether artistic features of a useful article can be protected independently of their utilitarian function. The Supreme Court articulated this principle in Star Athletica, LLC v. Varsity Brands, Inc., holding that a design feature is copyrightable if it (1) can be perceived as a two- or three-dimensional work of art separate from the useful article, and (2) would qualify as protectable on its own if imagined separately from that article.
The separability test helps to determine when certain board game elements like figurines, tokens, or decorative board designs cross the line from purely functional to protectable expression. For instance, a plain wooden cube used as a resource marker is likely unprotectable because it serves a purely utilitarian purpose with minimal creative expression. The same concept applies for a simple wooden block in a game of Jenga. However, a detailed miniature representing a unique character, creature, or object may be protectable if its artistic features can be conceptually separated from its role in gameplay and from any functional or utilitarian aspects it may have.
This same logic applies to other components. Decorative illustrations on cards, ornate board designs, or stylized iconography may all be protected if they can stand alone as creative works, independent of their function within the game. In this way, even though board games and elements therein are inherently functional systems or perform certain functions, they often contain layers of artistic expression that can be “separated” and protected under copyright law.
Beyond the Board: Soundtracks and Musical Works
Immersion is the name of the game when it comes to a board game’s unique elements, and official soundtracks (“OSTs”) to complement gameplay are on the rise. Sound recordings and other audiovisual material (e.g., companion apps, narrated scenarios, or thematic background music) can add an extra layer of depth, transforming a strictly tabletop experience into something almost cinematic in nature. From a copyright perspective, these additional elements are also protected by copyright law.
In the context of music, it is important to recognize that a single “song” embodies two distinct copyrights under Section 102(a). The first is the musical work, which covers the underlying composition of melody, harmony, lyrics, and overall structure. The second is the sound recording, which protects the specific recorded performance of that composition. Sound recordings, musical compositions, and other audiovisual content fall squarely within the subject matter under Section 102, so long as they meet the originality and fixation requirements.
Sleeping Gods, for example, is a cooperative campaign board game where players explore a vast, atlas-based world as a lost crew seeking hidden totems in the hopes of awakening ancient “gods” to find their way home. The official soundtrack album for the game, created by Malorie Laukat, gives players the opportunity to bring their campaign to life through music created specifically to accompany gameplay. Although existing separately from the game itself, soundtracks like that of Sleeping Gods illustrate how modern board games can contain copyrightable elements that carry the experience beyond the tabletop.
Conclusion
At the end of the day, the copyrightability of board games is all about knowing what passes “Go,” and what doesn’t under the Copyright Act. While creators can’t claim copyright ownership over the rules of play, they can be assured that copyright protects many aspects of a board game, from eye-catching artwork to richly developed characters or immersive elements. Whether you’re designing the next big hit or just rolling the dice on game night, one thing is clear: in copyright law, just a spark of creativity can carry the game forward.
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