910 Games, Toys, Dolls, Stuffed Animals, and Puppets
This Section discusses certain issues that commonly arise with toys, dolls, stuffed animals, puppets, and other sculptural works. It also discusses common issues involving board games, card games, and other games with pictorial, graphic, or sculptural authorship. For information concerning videogames, see Chapter 800, Section 807.7 (A).
NOTE: As a general rule, these types of works are not considered useful articles for purposes of registration, because in most cases they merely portray their own appearance or the item that the work represents. 17 U.S.C. § 101 (definition of “useful article”). By contrast, backpacks, lunchboxes, nightlights, scooters, tricycles, or other items that have an intrinsic utilitarian function are considered useful articles, and as such, are subject to the separability test described in Section 924.3.
Toys, dolls, stuffed animals, and puppets are frequently protectable under the U.S. copyright law as sculptural works. Applicants may use the term “toy,” doll,” “stuffed animal,” “puppet,” or any other term that reasonably describes the work that the author created. Alternatively, applicants may describe the type of authorship that the author contributed to the work, such as “sculpture” or “soft sculpture.”
Games often include both copyrightable and uncopyrightable elements. The copyrightable elements of a game may include text, artwork, sound recordings, audiovisual material, or other works of authorship. These types of works may be protectable if they contain a sufficient amount of original authorship. Uncopyrightable 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.
When completing an application for a game, applicants should describe the specific work(s) that the applicant intends to register, such as the instructional text, the artwork on a playing board, and/or the original sculptural elements of game pieces. Applicants should not assert a claim in “game” or “game design,” because it is generally understood that the game as a whole encompasses the ideas underlying the game. For the same reason, applicants should not assert a claim in the methods for playing the game.
Examples:
• Gloria Glam files an application to register a new board game. In her application she asserts a claim in “text and board artwork.” The game board contains intricate designs and the instructions consist of two pages of text. The registration specialist will register the claim with an annotation, such as: “Basis for registration: Unit of publication.”
• Garfield Grant files an application for a new type of soccer playing field and asserts a claim in “technical drawing.” The deposit contains a set of technical drawings with accompanying text. The registration specialist will register the claim; the registration will extend only to the actual drawings and descriptive text but not to the design for the field itself.
• Glenn Garner files an application to register a “new game of chess, consisting of a new way to play the game, new playing pieces, and a new board with three levels.” The registration specialist may register any descriptive text and the design of the playing pieces if they contain a sufficient amount of creative expression. However, the specialist cannot register the idea for and method of playing the new game, or the idea of playing the game on a board split into three levels. Therefore, the specialist may add two annotations, such as: “Basis for registration: Unit of publication” and “Regarding authorship information: Idea for, and procedure or method of operation used in, game not copyrightable. 17 USC 102 (B). Registration extends to artwork deposited.”
Games and other items are often distributed in a physical package that contains separately fixed component works that have been bundled together and distributed to the public as a single, integrated unit. In such cases, it may be possible to register the component works with the unit of publication option, which allows multiple works to be registered together with one application and one filing fee. See 37 C.F.R. § 202.3 (B) (4). For information concerning this option, see Chapter 1100, Section 1103.
For information on how to register purely literary aspects of a game, see Chapter 700, Section 714. For information concerning the deposit requirements for games, see Chapter 1500, Sections 1509.1 (E) and 1509.3 (A) (7).