Copyright and trademark issues with variation on an existing game Suppose someone markets a variation on the well-established board game of Monopoly. The variation includes a game board that looks like the Monopoly board but has several extra squares for players to land on, with various novel consequences of landing on those squares. It is called &quot;New Monopoly&quot;. They write an instruction booklet that says &quot;The rules are the same as the rules for Monopoly, with the following changes and additions....&quot;. (These changes and additions are designed to make good use of the extra squares). The instruction booklet also contains some arguments for why New Monopoly is a better game than the old Monopoly. The question: How much of the above would need to be adjusted to avoid a copyright/trademark violation (in the United States)? Would it help, for example, to change the name so that it doesn't include the word Monopoly? Or to substantially alter the appearance of the board (in ways that don't affect the actual play of the game)? Or to avoid mentioning the existing game of Monopoly in the instruction booklet? Or to avoid mentioning the existing game of Monopoly in the marketing materials? Or anything else? Or is this unavoidably a copyright violation?
There would be both copyright and trademark issues here. See U.S. Trademark Law - USPTO for law adn rules of practice related to US trademarks. See 17 USC for US copyright law. Trademark &quot;Monopoly&quot; is, I understand, protected as a trademark for a board game. It is currently owned by Hasbro. Any name which would be likely to confuse reasonable people into falsely thinking that the new game was authored or approved by the makers of the game Monopoly, or came from those makers would be trademark infringement (unless done by permission). However, a name can allude to another name as long as no market confusion nor any dilution results. Under 15 U.S.C. § 1066 a mark which is &quot;likely when used on or in connection with the goods or services of the applicant to cause confusion or mistake or to deceive.&quot; may be grounds for an interference which can prevent registration of the newer mark. 15 U.S.C. § 1125 provides that: (a) (1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which— (a) (1) (A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or (a) (1) (B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act. ... (c) Dilution by Blurring; Dilution by Tarnishment.-- (c) (1) Injunctive relief.--Subject to the principles of equity, the owner of a famous mark that is distinctive, inherently or through acquired distinctiveness, shall be entitled to an injunction against another person who, at any time after the owner's mark has become famous, commences use of a mark or trade name in commerce that is likely to cause dilution by blurring or dilution by tarnishment of the famous mark, regardless of the presence or absence of actual or likely confusion, of competition, or of actual economic injury. (c) (2) Definitions.--(A) For purposes of paragraph (1), a mark is famous if it is widely recognized by the general consuming public of the United States as a designation of source of the goods or services of the mark's owner. In determining whether a mark possesses the requisite degree of recognition, the court may consider all relevant factors, including the following: (c) (2) (A) (1) (i) The duration, extent, and geographic reach of advertising and publicity of the mark, whether advertised or publicized by the owner or third parties. (c) (2) (A) (1) (ii) The amount, volume, and geographic extent of sales of goods or services offered under the mark. (c) (2) (A) (1) (iii) The extent of actual recognition of the mark. (c) (2) (A) (1) (iv) Whether the mark was registered under the Act of March 3, 1881, or the Act of February 20, 1905, or on the principal register. (c) (2) (B) For purposes of paragraph (1), `dilution by blurring' is association arising from the similarity between a mark or trade name and a famous mark that impairs the distinctiveness of the famous mark. In determining whether a mark or trade name is likely to cause dilution by blurring, the court may consider all relevant factors, including the following: (c) (2) (B) (i) The degree of similarity between the mark or trade name and the famous mark. (c) (2) (B) (ii) The degree of inherent or acquired distinctiveness of the famous mark. (c) (2) (B) (iii) The extent to which the owner of the famous mark is engaging in substantially exclusive use of the mark. (c) (2) (B) (iv) The degree of recognition of the famous mark. (c) (2) (B) (v) Whether the user of the mark or trade name intended to create an association with the famous mark. (c) (2) (B) (vi) Any actual association between the mark or trade name and the famous mark. The word &quot;Monopoly&quot; as applied to games surely counts as a &quot;famous martk&quot; an so one must avoid confusion as well as &quot;Dilution by Blurring&quot;. A game called &quot;New Monopoly&quot; is obviously intended to refer or allude to the existing game. Moreover it seems &quot;intended to create an association with the famous mark&quot; Such a mark might well constitute Dilution by Blurring. It might be wise to choose a name that is not as similar to the trademarked game, and is not as clearly and directly associated with the existing game. It might be wise to consult an experienced trademark lawyer as to whether any such name was close enough to an existing mark, particularly a famous one, to run a risk of a dilution or an infringement action. One should note that a clear disclaimer, stating that a game is not affiliate with an existing game (or other product), and is not a product of that game's owners, nor approved or sponsored by those owners, can help avoid an infringement or dilution action. Previous Suit According to the Wikipedia article, &quot;Monopoly (game)&quot; (citations omitted): Economics professor Ralph Anspach published Anti-Monopoly in 1973, and was sued for trademark infringement by Parker Brothers in 1974. The case went to trial in 1976. Anspach won on appeals in 1979, as the 9th Circuit Court determined that the trademark Monopoly was generic and therefore unenforceable. The United States Supreme Court declined to hear the case, allowing the appellate court ruling to stand. This decision was overturned by the passage of Public Law 98-620 in 1984. With that law in place, Parker Brothers and its parent company, Hasbro, continue to hold valid trademarks for the game Monopoly. However, Anti-Monopoly was exempted from the law and Anspach later reached a settlement with Hasbro and markets his game under license from them Copyright The concepts and procedures of a game, the so-called &quot;game mechanics&quot; cannot be protected by copyright. Specifically 17 USC 102(b) provides that: (b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. So having a game in which tokens representing players move around a board, buying and selling properties, paying and collecting rents, and so on, is not protected by copyright. The artwork of any of the various editions of Monopoly would be protected by copyright, and may not be copied or imitated without permission. The layout of the board might be protected, depending on how original it is judged to be. However, the original version on Monopoly called The landlord's Game dates from 1903, and any copyright in it has expired. Only new, original elements first published in 1925 or later would still be protected by copyright. Most of the layout elements are probably now in the public domain. Visual elements of modern editions may well still be under copyright. Conclusion Creation a new game that has some resemblance to Monopoly can probably be done without infringing any IP rights, but care would need to be taken to make it visually distinctive from any protected edition of the game. A name thatr was not similar enough to the existign name to involved &quot;blurring&quot; the existing trademark would need to be chosen. I am doubtful if &quot;New Monopoly&quot; is sufficiently distinctive.
If Alice, Bob, and Cassandra are working on the program and releasing it as a joint work, the copyright statement should reflect it: Copyright (c) 2017 Alice, Bob, Cassandra If, on the other hand, Bob and Cassandra are taking advantage of the "modify" clause of the MIT license to create derivative works, the copyright statements are required by the license to be separate: Copyright (c) 2017 Alice Copyright (c) 2017 Bob Copyright (c) 2017 Cassandra
No, it's still copyright infringement. When you modify a copyrighted work in any way, you generate a derivative work which you are not allowed to distribute without the permission of the original copyright holder.
Don't get hung up on unauthorized resale. That only prohibits unauthorized resale. Authorized resale is ok. From http://www.justice.gov/usam/criminal-resource-manual-1854-copyright-infringement-first-sale-doctrine: The first sale doctrine, codified at 17 U.S.C. § 109, provides that an individual who knowingly purchases a copy of a copyrighted work from the copyright holder receives the right to sell, display or otherwise dispose of that particular copy, notwithstanding the interests of the copyright owner. The right to distribute ends, however, once the owner has sold that particular copy. See 17 U.S.C. § 109(a) &amp; (c). Since the first sale doctrine never protects a defendant who makes unauthorized reproductions of a copyrighted work, the first sale doctrine cannot be a successful defense in cases that allege infringing reproduction.
Your client is confused about how copyright law works (at least in the United States and virtually every other country I've ever heard about copyright in). If I were guessing, they read something like this from the United States Copyright Office: The copyright in a derivative work covers only the additions, changes, or other new material appearing for the first time in the work. Protection does not extend to any preexisting material, that is, previously published or previously registered works or works in the public domain or owned by a third party. and figured that because it's a derivative work, the copyright only covers the additions and changes they make, and there's no copyright protection for the original work. This misunderstands the law: the original work still has its own copyright (assuming it hasn't expired), and permission from the holder of the copyright on the original work is required to create that derivative work in the first place*. The copyright on the derivative work is separate—that is, both copyrights exist in parallel. * Some exceptions, such as fair use, exist, but would be unlikely to apply to the situation you describe.
There are now 2 works. An original, abandoned work, and a new, derivative work. The original creator owns the copyright over the original, and the new person owns copyright over the derivative he created. In your scenario, it will be the new creator, who will have the right to sue, if the gpl of the new work has been infringed
The &quot;Beholder&quot; was originally invented as part of AD&amp;D (2nd edition IIRC) and copyrighted by TSR (Gary Gygax and associates, essentially). WotC bought TSR and all its assets, including copyrights. There were at least two other RPGs that tried to use Beholders and other original creatures from the Monster Manual of D&amp;D and dropped them after a cease and desist order from the copyright holders. I believe one was from TSR, and one from WotC after they purchased TSR. To the best of my knowledge there was no actual copyright suit, so the validity of the copyright was never tested in court, but it is probably valid. Merely calling a creature a &quot;Beholder&quot; is not enough to violate the copyright, there would need to be actual copying of the description, or a sufficiently detailed similarity to make the use an infringement. That is always a matter of judgement, ultimately for a court in a copyright suit (or an appeals court). So, while all the possibilities mentioned in the answer by @Dale M are valid, it is additional possible that the version used by HOMM3 is not sufficiently close to the one copyrighted as part of AD&amp;D for a copyright claim to prevail, or the WotC fears that it would not prevail, and so does not spend the money to try.
is contract text itself subject to copyright? What are my options? It largely depends on the originality of your contract. C &amp; J Management Corp. v. Anderson, 707 F.Supp.2d 858, 862 (2009) points to multiple references against preclusion of "a copyrightable interest in a contract". But you would need to prove that your competitor copied "original elements" of your contract including "a minimum degree of creativity and originality required to support a valid copyright". See Donald v. Uarco Business Forms, 478 F.2d 764, 766 (1973). Your post provides no information that would help identifying or ruling out this issue in your matter. Without realizing, you might have paid dearly for boilerplate language that your lawyer copied from somewhere else. Indeed, there is so much regurgitation and copy/pasting in the legal "profession" (judges included, as is notorious in judicial opinions they release and in the similarities --verbatim-- among the procedure law of many, many U.S. jurisdictions). That regurgitation is not bad in and of itself, though, since what matters is the expeditious administration of justice and the protection of your rights, rather than obtaining creative expressions authored by some lawyer. You might end up wasting valuable energy and money if you went after the competitor for something like this without first assessing the extent of originality in your contract. Focus instead on the much more detrimental fact that your competitor "plays dirty in general".