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Kickstarter Game Lawsuit: Magic vs. Hex

Kickstarter has become a great way for game designers to get their products made. In terms of total dollars raised, games are Kickstarter’s most successful category (Kickstarter is nice enough to make some interesting stats available here.) Game designers can now appeal directly to fans and give them what they want.

And often, what fans want is something kind of like what they already enjoy. That’s how intellectual property lawsuits are born, folks.

In the latest example, Wizards of the Coast (publishers of Magic: The Gathering and Dungeons & Dragons) have filed suit against Cryptozoic Entertainment and Hex Entertainment for copyright, patent, and trade dress infringement due to Cryptozoic’s Hex: Shards of Fate game and its alleged similarity to Magic.

Magic has been a popular game for over 20 years. Cryptozoic launched a Kickstarter campaign for Hex in 2012. According to Wizards’ lawsuit, “…the campaign…far exceeded its campaign goals (…17,765 backers pledged $2,278,255 on what had been a $300,000 goal).”

Wizards’ legal complaint devotes quite a few pages to quotes from gamers. Almost 6 of the 24 pages are made up of quotes and image captures from one blogger who did an extensive comparison of the two games. They then go on to cite several posters in online forums.

This seems a bit odd to me. Why should a court care what some game blogger has to say? Is any blogger automatically considered a subject matter expert who represents a significant portion of the relevant audience? As a blogger myself, I’m inclined to say “yes,” but more proof may be required.

Wizards then produces a chart of similar elements between the games. For example:

Win = remove all life or run opponent out of cards

Win = remove all life or run opponent out of cards

Turn cards (tap) to designate a card action (attack or use ability)

Turn cards (tap) to designate a card action (attack or use ability)

Untap cards at the beginning of each card

Untap cards at the beginning of each card

…this goes on for a few pages.

Since I’m not a patent attorney, I’ll address this from a copyright and trademark/trade dress perspective. The issue here is that useful or functional elements are not protectable through copyright or trade dress. As a result, gameplay elements can be difficult to protect. Within the context of a turn-based fantasy trading card game, which elements are functional, and which are unique?

Wizards’ position is that, while none of these particular elements may be copyrigtable or protectable as trade dress on their own, and while Hex didn’t exactly copy any of Magic‘s images, characters, or locations, they took so many elements from Magic that their use amounts to copyright and trade dress infringement.

Or, as Wizards stated in the complaint’s copyright section:

Cryptozoic copied the cards, plot, elements, circumstances, play sequence, and flow of Magic. Players in both games are confined to the same parameters based on an initial dealing of seven cards and play progresses in a substantially identical manner. Players must efficiently use their skill and calculation to assemble their initial decks and then in suitable selection and play of the various cards.

Cryptozoic copied the overall plot, elements, theme, mood, setting, pace, creatures, and sequence of Magic. As demonstrated in more detail above and as will be shown at trial, Cryptozoic copied the physical layout and ornamental aspects of Magic cards, the visual presentation of each card on the screen is substantially similar to the same sort of card within the Magic card game in either its paper or electronic versions; the sequence and flow of the game, the scoring system used by the game, and the overall look and feel of the game are identical.

In short, Cryptozoic has produced a nearly identical copy of Magic, including the original selection and arrangement of multiple elements of Magic. Cryptozoic copied Magic in a manner that clearly infringes on Wizards’ copyrights and unless Cryptozoic is enjoined, it will continue do so. At no time did Wizards authorize Cryptozoic to reproduce, adapt, or distribute Magic.

As far as trade dress, Wizards stated:

Cryptozoic deliberately and intentionally copied the game play, rules, player interaction with the game, layout and arrangement, visual presentation, sequence and flow, scoring system, and Magic’s overall look. By duplicating the “total image and overall appearance of a product,” Cryptozoic has copied Magic’s particular trade dress, the copying of which shows confusion among Wizards’ customers.

The distinctive design of the Magic cards is not essential to the use or purpose of the game nor does the design affect the cost or quality of the cards; the design is merely an ornamental arrangement of features, some of which are functional.For these reasons the distinctive design of the Magic cards and the arrangement of features are protectable as trade dress in either the paper or electronic versions of Magic.

All of this seems fairly thin to me. I’m not a gamer, but my understanding is that there are many card-based games out there with somewhat similar elements (gamers: please correct me if I’m wrong.) My sense here is that Wizards may have a valid patent claim (again, I’m not the right person to evaluate that claim), and they threw in the copyright and trade dress business because, at that point, why not?

Unfortunately, the resulting publicity has muddied the waters for prospective game designers, on Kickstarter and elsewhere. I’m concerned that this lawsuit’s copyright and trade dress claims may have a chilling effect on that clearly vibrant community.

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