Monday, February 15, 2010

Can Monopoly Come After Me?

Dear Rich: A few years ago, I came up with my own version of Monopoly to use in high schools as a fun way to teach a topic. The game became so fun and popular that a local science center wanted to play it and open it up as a free competition between schools. I didn't have a problem with that, but was starting to get a little worried about legal issues. I tried several times to contact Hasbro to ask permission, but they never responded. I told the schools that unless they intended on backing me up if any legal issues arrose, that I would not allow the game to be played. No one wanted to back me up, so I decided that I would change the game sufficiently as to make it very different from a Monopoly-like game. I did that and the game looks great and still fun (I'm pretty sure that I changed it enough.). Now, I'm uncertain. Did I change it enough? Really, the only thing that remains similar is that you can purchase property (but they're not houses or hotels) and pay rent? Because I am not selling it, am I safe? If I do decide to turn it into a classroom-type game, how difficult would that be and is the fact that the game was originally based on MONOPOLY going to cause problems? Should I go see a lawyer? Is it worth going through all of the trouble of patenting my idea and/or selling it? How many board game ideas out there really make it (I'm assuming that it is very little)? Can I protect my idea and distribute the game for free (just get organizations to give me cash to produce and distribute for free in schools)?  I'm hoping that you can help. The Dear Rich Staff would like to help but we're pretty exhausted from reading all your questions. Wait a second while we hook up a caffeinated IV drip. 
1. We don't know if you changed the game enough but if people play it and say things like, 'this seems a lot like Monopoly,' the answer is probably, 'No.' 
2. If the only thing the games have in common is the idea of purchasing property, then you're not likely to be infringing.
3. If the game infringes, you will be liable for selling, distributing or licensing. You don't have to make a profit to be an infringer.
4.  If it's not similar to Monopoly it won't infringe even if you were originally inspired by Monopoly.
5. We don't know if you should go see a lawyer. We happen to like lawyers and think they're an interesting group of people. But that's just us. Also, when we speak to lawyers, the meter is usually not running. We would suggest holding off on the legal visits and learning as much as you can by yourself.
6. You may be able to patent your game--possibly with either a utility or design patent--but we wouldn't recommend it as a strategy for board games (which kind of fits in with the whole twisted legal history of Monopoly). In any case, copyright and trademark law should do just fine for you.
7. The Dear Rich Staff used to do a lot of toy licensing and our experience from that was that board game licenses were exceptionally rare. You will have a hard time getting in to see the two or three companies that still make board games, and without major distribution, it will likely become a money-losing venture. Even if you do license it, the chances of breaking through the existing pack of popular and classic board games is slim. (Sorry to be so negative but we're glass-half-empty folks).
8. If your game isn't substantially similar to an existing game and doesn't use a similar trademark, you're legally entitled to do what you want.