Not Rolling the Dice: Amazon’s Legal Strategy for Board Games
Recently, Amazon and its Counterfeit Crimes Unit partnered with many brands to file lawsuits against alleged sellers of counterfeit products on its platform.[1] Affected brands ranged from technology brands like GoPro[2] to luxury clothing brands like Ferragamo.[3] On June 24, 2021, in an effort to combat board game counterfeiters, Amazon partnered with Asmodee, a board game conglomerate, to sue an alleged counterfeiter of two expansions of Asmodee’s hit game, Dixit.[4] Dixit is an art interpretation game, where a “Storyteller” tries to get people to pick a chosen card.[5] The unique art on the cards has been described as “touching . . . drawn in such as [sic] way as to be both happy and sad, or transparent and secretive, or funny and grim.”[6]
In their complaint, Amazon and Asmodee alleged causes of action for trademark infringement, false advertising, and violation of Washington’s Consumer Protection Act.[7] Notably missing was a cause of action for copyright infringement. Similarly, in a suit against alleged counterfeiters of the card game Dutch Blitz, Amazon stated the same causes of action and, once again, made no mention of copyright infringement.[8] This categorical disregard of copyright protection for board games is based on the idea expression dichotomy.[9] The idea expression dichotomy denies copyright protection to ideas, instead only protecting the particular way that the author chose to express the idea.[10] This distinction dates back to Baker v. Selden, where the Court held that the method of accounting in the plaintiff’s book could not be copyrighted.[11] The particular way that the book expressed the accounting method could be protected by copyright, but not the underlying idea.[12] Under this framework, courts have presumed that board game rules are uncopyrightable “because business ideas, such as a game concept, cannot be copyrighted.”[13] Still, courts have considered expressive elements of games, such as the art on boards or cards, to be copyrightable.[14] Some have argued that board game rules, like plays or sheet music, should be afforded copyright protection as artistic expressions.[15] This expansion of copyright protection has not gained traction.[16]
By not pursuing a copyright infringement claim, Amazon and Asmodee are perpetuating the notion that board games are not eligible for copyright protection. Whether or not this is wise policy, it represents an unwillingness to push the envelope on copyright law and creatively argue that board games are creative expressions, despite the case law. This is especially true regarding Dixit, a game that is coined as an expressive “storytelling” game.[17] Additionally, even if Amazon did not want to roll the dice on a copyright claim for the rules of the game, Amazon could have argued that artistic elements of the game, such as its “touching” artwork,[18] are eligible for copyright protection.
It is worth noting that the option of pursuing a copyright claim might have been unavailable to Amazon. Only registered works are eligible for copyright protection in a court of law.[19] Due to the unfavorable precedent for board games and copyright claims[20], it is possible that board game designers and publishers do not typically register their works. If this is the case, then it shows the board game industry’s unwillingness to try to categorize games as expressive works with expressive elements. If this is not the case, and Amazon chose not to pursue a copyright claim, then it shows an unwillingness to try a creative argument about the expressive nature of board games. Either way, if Amazon did not try to pursue a copyright claim with Dixit, an artistic “storytelling” game,[21] it is unlikely that Amazon will pursue a copyright claim with any other board games. While it is likely that a copyright claim would fail, without rolling the dice and pursuing the claim we will never know for sure.
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