[Warning: this article contains mild spoilers for season 6 of NBC’s Parks and Recreation]
In NBC’s hit comedy Parks and Recreation, Adam Scott’s character Ben Wyatt is a sci-fi loving accountant. In season 6 of the show, an unemployed Ben Wyatt creates a hilarious and insanely intricate role-playing game called “Cones of Dunshire.” The game features 8-12 players, two wizards, a maverick, an arbiter, two warriors, a corporal, and a ledgerman, and players roll up to sixteen dice simultaneously.
Throughout the season Ben laments the fact that he didn’t copyright his game. Then, in the season finale, Ben’s former coworker reveals that he copyrighted the game on Ben’s behalf, and presents to Ben what is supposed to a document formalizing the copyrights. As an intellectual property attorney and huge fan of the show, I couldn’t help dissecting the show’s treatment of copyrights. Although this subplot was very entertaining, the show’s writers got a few things wrong about copyright.
The “Cones of Dunshire” subplot was premised on three notions: (1) that the game itself was copyrightable, (2) that without some affirmative act Ben would have lost his copyrights, and (3) that friends can secure copyrights in each other’s works as surprise presents.
First of all, the game itself is not copyrightable. The Library of Congress explicitly states the following about the copyrightability of games:
“Copyright does not protect the idea for a game, its name or title, or the method or methods for playing it. Nor does copyright protect any idea, system, method, device, or trademark material involved in developing, merchandising, or playing a game. Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles. Copyright protects only the particular manner of an author’s expression in literary, artistic, or musical form.” (link)
Ben may have been able to protect aspects of the game through copyright, but not the game itself. For example, the instructions for the game may be protectable as a literary work. Also, the actual board for the game may be protectable as a work of visual art. But none of that would stop a competitor from creating a very similar game.
Second, the show suggests that an affirmative act is required to obtain copyrights – what the show referred to as “copyrighting.” This is somewhat of a misnomer, because in the United States copyrights automatically vest once an author fixes their work in a tangible medium. Thus, once Ben Wyatt’s game was created, any available copyrights (e.g., for the game instructions and board) would have been in effect. The act of filing a copyright registration confers a number of benefits, particularly related to obtaining damages for copyright infringement, but is not required to obtain rights.
Lastly, Ben’s coworker could not have filed a copyright registration for the game without Ben’s knowledge unless Ben had assigned his copyrights to them. Unless you are a rightsholder or you are the “duly authorized agent” of the author, you cannot file a registration for a work created by another.
To protect his IP rights, Ben would have been better served to contact an IP attorney, as the phrase “The Cones of Dunshire” may be protectable as a trademark, and aspects of his game may have been protectable under patent laws.