©2021. Published in Landslide, Vol. 13, No. 3, January/February 2021, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.
February 08, 2021 Feature
The Limited Copyright Protection for Playing Cards
Elana Greenway Faniel
Learning how to play the card game of Spades is a rite of passage. At barbecues and family functions, a Spades game was always afoot. To be clear, one could not simply join a game of Spades if one did not know how to play. You had to learn and practice on your own, and then showcase your skills during a legitimate game. My Spades-playing skills are below average, so I rarely volunteer to be someone’s Spades partner. I prefer to spectate so as to spare myself from any undue embarrassment. I also prefer to play Blackjack and Solitaire. Interestingly, in the United Kingdom, the game of Solitaire is referred to as “Patience.”1 The name suits the game, as I am sure I have built much patience while playing against chance—and myself.
Playing card games is a pastime spanning a few millennia. According to many historians, the concept of playing cards originated in China during the Tang dynasty around the ninth century A.D.2 The Chinese called their playing cards “leaves,” which were actually pieces of paper with figures and symbols written on them.3 It is not clear how playing cards arrived in Europe. One prevailing theory was that the Chinese “leaves” arrived in Europe around the thirteenth century by way of the famous Venetian explorer, Marco Polo.4 That theory has since been discredited. Others believe that the Europeans were introduced to playing card games by trading with Arabs in Egypt.5 The Mameluke Egyptians developed a playing card deck dating back to the twelfth or thirteenth century that consisted of 52 cards.6 The four suits of the Mameluke cards were coins, cups, swords, and sticks.7
The Standard Card
According to the International Playing-Card Society, the French-suited cards, or those cards with suits that derived from France, are referred to as “standard cards.”8 Our modern-day card deck originated from French-suited cards. Standard cards are typically used to play card games. The suits of a standard French card deck are spades, hearts, clubs, and diamonds. The suit symbols are called “pips.” Each standard playing card in a deck has a “face” and a “back” and are identical in size and shape.9 The faces of the cards distinguish one card from another. Each card deck is classified by suit, and each suit is represented by a name and symbol. Generally, there are the same number of cards in each suit. The cards within each suit are further classified by their rank, which in a standard deck ranges from ace to king. Every suit contains one of each rank. Many decks also include joker cards. However, the joker is an American invention.10 It is a wild card, or an especially powerful card that may be used to give a player an upper hand during a card game. The face of the joker card typically depicts a jester or juggler.
The Spread and Regulation of Playing Cards
Originally, the faces of playing cards were incredibly unique, as they were hand-painted.11 Consequently, buying a card deck was an investment in a luxury product.12 Many cards donned beautiful paintings of legendary kings and rulers, such as King David and Alexander the Great.13 Nevertheless, in the fifteenth century, when card manufacturers began using wood-block printing methods to produce decks of cards, the cost to produce a deck decreased significantly.14 The designs of the cards were simplified, and card decks became more accessible to the general public.15
Accessibility fostered the popularity of playing cards in medieval Europe, as people from every background and class now played.16 As the popularity of playing cards grew, so did the proliferation of new game variations. The occurrence of deck forgeries and distortions of original card face designs increased.17
As copying became a legitimate problem, the English government monopolized card manufacturing and made forgery punishable by fine or imprisonment.18 The English also taxed card manufacturers, requiring those who paid the tax to affix an elaborate tax authorization stamp on one card of the deck—the ace of spades.19 In the United States, the Constitution gave the federal government power “[t]o promote the progress of science and useful arts,”20 as well as the power to regulate interstate commerce.21 Based on those powers, the U.S. government enacted intellectual property laws to protect: (1) inventions, with patents; (2) works of authorship, with copyrights; and (3) logos and slogans, with trademarks.
U.S. Copyright Protection
U.S. copyright law protects original works of authorship, including literary, musical, dramatic, pictorial, graphic, and sculptural works fixed in any tangible medium of expression.22 The copyright owner of a literary, pictorial, graphic, or sculptural work has the following exclusive rights:
- to reproduce the copyrighted work in copies;
- to prepare derivative works based upon the copyrighted work;
- to distribute copies of the copyrighted work to the public;
- to perform the copyrighted work publicly; and
- to display the copyrighted work publicly.23
However, “[i]n 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.”24
The U.S. Copyright Office provides further guidance regarding the scope of copyright protection of games, such as those played with playing cards. The idea for a game, or the method of playing it, is not protectable by copyright law. “Copyright protects only the particular manner of an author’s expression in literary, artistic, or musical form.”25 Accordingly, only expressive elements of a card game are protectable. For example, if the game includes written rules describing how to play the game, those instructions may be protectable as a literary work. Any graphic artwork, such as designs on the face of the cards, may be protectable as works of visual art. However, whether the work is instructions or a graphic design, the level of copyright protection afforded to playing cards and playing card games is limited.
Protection of Card Game Instructions
To prove a claim of copyright infringement, a plaintiff must establish: (1) ownership of a valid copyright, and (2) impermissible copying of the original elements of the work.26 To determine whether infringement of a card game has occurred, a court must first distill the protectable elements from the game.
One doctrine often applied to the idea-expression dichotomy is the merger doctrine. The merger doctrine stems from § 102(b) of the Copyright Act,27 and provides that if the idea underlying the work can only be expressed in one way, the work is not protectable.28 This principle is applied when it is difficult to distinguish the idea from the expression, and when granting protection for the indistinguishable expression would in turn grant the author a monopoly on the idea.29 A court considering the application of the merger doctrine must: (1) “identify the idea that the work expresses,” and (2) “then attempt to distinguish that idea from the author’s expression of it.”30 If the court can distinguish the idea from its expression, then the expression is protected. The outcome of this analysis weighs heavily on how the court defines the idea.31
Another approach used by the courts is the abstractions test. The abstractions test specifies that abstract ideas, patterns, or themes must be separated from the substance, or protected elements of the work.32
Finally, courts have also utilized the “scènes à faire” test. Scènes à faire are “incidents, characters or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic.”33 Scènes à faire are not protectable by copyright.34 Under the scènes à faire test, if the common idea can only be expressed in a stereotyped form, or by scènes à faire “stock literary devices,” any similarity to such expression does not amount to actionable infringement.35
Each of these approaches, and even a combination of the three, have been applied to games. The Ninth Circuit noted that the merger doctrine often applies to games because “they consist of abstract rules and play ideas.”36 The “idea” in creating the rules of playing card games is to provide a player the steps on how to play a particular card game. The game itself is not copyrightable. The question becomes whether the expression of those rules is distinguishable from the idea. The expression can be distinguishable from the idea, depending upon the level of creativity in the expression.
The analysis of the merger doctrine was applied to game instructions in Affiliated Hospital Products, Inc. v. Merdel Game Manufacturing Co.37 In that case, the plaintiff, a game manufacturer, sued the defendant, also a game manufacturer, for, among other things, copyright infringement. The plaintiff created a rulebook for its children’s tabletop pool game called Carroms. The defendant published a similar rulebook for the same game, improving upon and clarifying the rules. The court held that the defendant did not infringe upon the plaintiff’s game rulebook.38 The court reasoned that the plaintiff’s copyright registration of its rulebook only protected the plaintiff’s arrangement of the rules and manner of presentation, but not its content. Its content—the rules of the game—was in the public domain.39 Notably, the court found that the simplicity of the game narrowed the content, making it difficult to distinguish the content from the arrangement.40
To further illustrate the limited copyright protection afforded to card game instructions, let us look to the game of Solitaire. The rules of Solitaire are simple. You have to play with two decks of cards, and deal 40 cards. Once dealt, there should be 10 piles, consisting of four cards in each pile. The remainder of the cards are “in stock,” and you pull from those cards when you cannot play with any of the other cards of the 10 piles. You can only play with the top card of each pile, and the object is to build eight piles up, ranked in order from ace to king.41 Now, what I have just described are simply the rules of Solitaire. There was no creative expression in the way I described the steps. I added nothing to the idea, purpose, or function of the instructions. My description is not protectable under copyright law. As game instructions commonly lack creative expression, they are not generally protectable.42 However, if one did describe the rules of Solitaire with sufficient creative expression, then the expression would be copyrightable.
Protection of Card Graphic Designs
Game labels, designs of game boards, playing cards, and graphical works have all been found to be copyrightable expressive elements of games.43 However, U.S. courts must still determine whether those expressive elements are distinguishable from the idea, purpose, and function of the work. For example, in Freedman v. Grolier Enterprises, Inc., the plaintiff conceived an innovation to the card game of bridge.44 In one variation of the game, called the “point count system,” high-ranking cards (ace, king, queen, and jack) are assigned a value for bidding purposes. The plaintiff affixed the assigned value of the card underneath its suit symbol in the upper left and lower right corners of each card. By placing the assigned numerical value beneath the suit symbol, a player could easily see the value of the high-ranking cards while the cards were arranged in the player’s hand in a fanlike, visible position. The plaintiff registered the card design with the U.S. Copyright Office as a visual work.
The defendant was a publisher who sold a course on playing bridge, and that course included a deck of cards with the plaintiff’s card design. The plaintiff sued the defendant for copyright infringement. The Southern District of New York concluded that there was no other way for the defendant to express the plaintiff’s idea than the way the defendant had. The court reasoned: “When an idea is so restrictive that it necessarily requires a particular form of expression, that is, when the idea and its expression are functionally inseparable, to permit the copyrighting of the expression would be to grant the copyright owner a monopoly of the idea.”45 The expression of the idea must be unique and must be separable from its function. Therefore, the Freedman court held that the plaintiff’s use of a single number under the cards’ suit symbol was not a copyrightable expression.46
For traditional card games, there is “limited opportunity for expression,” and thus limited copyrightable material.47 The “limited opportunity for expression” and the near inability of card makers to separate the game’s idea from its expression explain why and how card manufacturers can produce nearly identical cards and game instructions without committing copyright infringement.48
Nevertheless, graphic designs on cards that are supplementary to the idea and function of the cards are protectable. An example of such protectable expression are the hand-painted faces of the original European standard playing cards. Another example are graphical designs affixed onto the deck box packaging. Such original and unique expression is protectable, and goes beyond the function of the card game.
Conclusion
Card game rules and the cards themselves fall into two categories of copyrightable works: literary works and visual works. However, as the game itself is an idea that is not protectable, courts must engage in a fact-intensive analysis to determine whether any expressive elements exist in the rules or design. If the court does find that there are expressive elements in the work, then it must determine whether the expression is sufficiently distinguishable from the idea of the game. The “limited opportunity for expression” assigned by the courts to card games creates a challenge for card designers and manufacturers to create protectable elements of standard playing cards and card games. Despite their limited copyright protection, playing card games remain a time-honored worldwide pastime.
Endnotes
1. See John McLeod, Patience/Solitaire, https://www.pagat.com/patience/patience.html (last updated Sept. 2, 2020).
2. See W.H. Wilkinson, Chinese Origin of Playing Cards, 8 Am. Anthropologist 62 (1895).
3. Id. at 64.
4. Id. at 69.
5. See An Introduction, Int’l Playing-Card Soc’y, https://www.i-p-c-s.org/wp/an-introduction (last visited Dec. 11, 2020); David Parlett, Playing Cards, Britannica, https://www.britannica.com/topic/playing-card (last updated Dec. 20, 2017).
6. See An Introduction, supra note 5.
7. History: Introduction into Europe, Int’l Playing-Card Soc’y, https://www.i-p-c-s.org/faq/history_3.php (last visited Dec. 11, 2020).
8. See An Introduction, supra note 5.
9. Nick Wedd, Mechanics of Card Games, https://www.pagat.com/mech.html (last updated Sept. 22, 2020).
10. Joker, Int’l Playing-Card Soc’y, https://www.i-p-c-s.org/wp/joker (last visited Dec. 11, 2020).
11. See An Introduction, supra note 5.
12. See Parlett, supra note 5.
13. See Adrienne Bernhard, The Lost Origins of Playing-Card Symbols, Atlantic (Aug. 24, 2017), https://www.theatlantic.com/technology/archive/2017/08/the-lost-origins-of-playing-card-symbols/537786; Who Do the Kings, Queens and Jacks on the Courts Represent?, Int’l Playing-Card Soc’y, https://i-p-c-s.org/faq/tmfaq.php (last modified Mar. 5, 2007).
14. See Parlett, supra note 5.
15. Id.
16. See Bernhard, supra note 13.
17. See Why Do the Kings, Queens and Jacks Look the Way They Do?, Int’l Playing-Card Soc’y, https://i-p-c-s.org/faq/tmfaq2.php (last modified Nov. 1, 2006) (displaying how the faces of cards were copied by unskilled card makers over time).
18. See The Worshipful Company of Makers of Playing Cards, World Playing Cards, https://www.wopc.co.uk/cards/worshipful (last updated Nov. 11, 2019).
19. Parlett, supra note 5.
20. U.S. Const. art. I, § 8, cl. 8.
21. U.S. Const. art. I, § 8, cl. 3.
22. Copyright Act of 1976, 17 U.S.C. § 102(a).
23. Id. § 106.
24. Id. § 102(b).
25. U.S. Copyright Office, FL-108, Games (2016), https://www.copyright.gov/fls/fl108.pdf.
26. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991).
27. See 17 U.S.C. § 102(b).
28. Thimbleberries, Inc. v. C & F Enters. Inc., 142 F. Supp. 2d 1132, 1137 (D. Minn. 2001).
29. See Mason v. Montgomery Data, Inc., 967 F.2d 135, 138 (5th Cir. 1992); Tetris Holding, LLC v. Xio Interactive, Inc., 863 F. Supp. 2d 394, 403 (D.N.J. 2012).
30. Mason, 967 F.2d at 138–39.
31. See id. at 140 (“[I]n defining the idea the court should be guided by ‘the balance between competition and protection reflected in the patent and copyright laws.’”(quoting Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738, 742 (9th Cir. 1971))).
32. See Atari, Inc. v. N. Am. Philips Consumer Elecs. Corp., 672 F.2d 607, 615–16 (7th Cir. 1982).
33. Id. at 616.
34. See id.
35. Id.
36. Allen v. Acad. Games League of Am., Inc., 89 F.3d 614, 617 (9th Cir. 1996); see also Morrissey v. P&G Co., 379 F.2d 675, 678–79 (1st Cir. 1967).
37. 513 F.2d 1183 (2d Cir. 1975).
38. See id. at 1188–89.
39. Id. at 1188.
40. Id.
41. See Forty Thieves Solitaire Rules, Solitaire Cent., http://www.solitairecentral.com/rules/FortyThieves.html (last visited Dec. 11, 2020).
42. See DaVinci Editrice S.R.L. v. Ziko Games, LLC, No. H-13-3415, 2014 U.S. Dist. LEXIS 110139, at *18–19 (S.D. Tex. Aug. 8, 2014) (citing Whist Club v. Foster, 42 F.2d 782, 782 (S.D.N.Y. 1929)).
43. DaVinci, 2014 U.S. Dist. LEXIS 110139, at *19 (quoting Tetris Holding, LLC v. Xio Interactive, Inc., 863 F. Supp. 2d 394, 404 (D.N.J. 2012)).
44. 1973 U.S. Dist. LEXIS 12900, at *3 (S.D.N.Y. June 30, 1973).
45. Id. at *7–8.
46. Id. at *9.
47. DaVinci, 2014 U.S. Dist. LEXIS 110139, at *21 (citing Russell v. Ne. Publ’g Co., 7 F. Supp. 571, 572 (D. Mass. 1934)).
48. Moreover, the designs and instructions for many card games originated long before America became an English colony, and so those designs and instructions are in the public domain.