Copyright registration of games

Imagine you have invented the next great party game. Call it Quibble (an invented example, like all the named parties in this guide). Players draw cards, bluff their friends, and race around a board shaped like a spiral galaxy. You have spent two years balancing the rules so they are devilishly fun. You hired an illustrator to paint the galaxy. You wrote a witty rulebook. You file a copyright registration, get your certificate in the mail, and feel safe.

Six months later, a competitor releases Squabble. The board is a different shape and the art is original, but the gameplay is identical—same bluffing mechanic, same racing structure, same clever scoring twist that took you a year to perfect. You sue for copyright infringement, certain you will win.

You will probably lose.

This is the strange, counterintuitive heart of game law, and it surprises almost everyone the first time they meet it: the most valuable thing about a game—how it plays—is the one thing copyright will not protect. Copyright guards the expression of a game (its art, its text, its sounds, its code, its audiovisual displays) with real teeth. But the idea of the game, its system, its rules, and its method of play fall outside copyright entirely. As the U.S. Copyright Office puts it in its public guidance on games, "Copyright does not protect the idea for a game, its name or title, or the method or methods for playing it."

That single sentence does an enormous amount of work, and misunderstanding it has cost game designers a great deal of money and heartbreak. The good news is that once you understand what copyright protects in a game, what it ignores, how courts actually compare two games in a lawsuit, and how to use trademark, patent, and trade dress to cover the gaps, you can build a protection strategy that holds up. This guide walks you through all of it: the bedrock rule and its statutory and case-law foundations; the leading cases (from a Pac-Man clone in 1982 to the famous Tetris look-alike in 2012); the mechanics of registering each separate piece of a game with the Copyright Office; the deposit and "identifying material" rules that trip up board-game makers; the substantial-similarity framework that decides cloning suits; and the layered strategy that real game companies use.

If you design board games, build video games, run a tabletop studio, or advise the people who do, this is your map of the terrain.

What you will learn

Why copyright refuses to protect game rules, mechanics, and methods of play—and the statutory and case-law foundations of that rule
What copyright does protect in a game: artwork, text, music, code, and the audiovisual "look and feel"
The crucial difference between a board game (a bundle of literary and visual works) and a video game (an audiovisual work plus underlying software)
How to register each protectable component with the U.S. Copyright Office, including which application type to choose and what registration gets you in court
The deposit and identifying-material rules unique to three-dimensional games and oversized boxes
How the leading cases—Tetris Holding, LLC v. Xio Interactive, Inc. and Atari v. North American Philips—drew the line between an unprotectable game idea and protectable expression
How courts actually decide a game-cloning lawsuit: actual copying, substantial similarity, scènes à faire, and the abstraction-filtration-comparison test
Why you need trademark (for the name), patent (for a truly novel mechanic), and trade dress (for the overall look) to fill copyright's gaps
Practical answers to the questions game designers actually ask

A note before we dive in: copyright law in the United States is federal, governed by the Copyright Act of 1976 (Title 17 of the U.S. Code) and interpreted by the federal courts and the U.S. Copyright Office. Trademark and trade dress involve a different statute (the Lanham Act) and different offices and standards. We will keep the lanes clearly marked throughout.

The bedrock rule: there is no copyright in the way a game plays

Let us start with the rule that governs everything else and then explain why the law works this way, because understanding the "why" makes every later decision easier.

The statute draws the line

Copyright protects "original works of authorship fixed in any tangible medium of expression." 17 U.S.C. § 102(a). That is the grant of protection. But the very next subsection takes a large category back:

"In 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."

17 U.S.C. § 102(b).

Read that list again with games in mind: procedure, process, system, method of operation. A game's rules are a procedure. Its mechanics are a system. Its method of play is, quite literally, a "method of operation." Section 102(b) is sometimes called the codification of the idea-expression dichotomy—the principle that copyright protects the particular way an author expresses something, never the underlying idea, fact, system, or method. For games, § 102(b) is less a fence than a wall.

This is why the Copyright Office's guidance is so blunt. To quote it in full, the Office tells applicants:

"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."

Every clause of that paragraph matters, but the sentence to tattoo on your forearm is the last one: copyright protects only the particular manner of an author's expression.

Where the rule came from: Baker v. Selden

The idea-expression dichotomy did not appear out of thin air in 1976. It traces back to a Supreme Court case from 1879 that, oddly enough, was about bookkeeping. In Baker v. Selden, 101 U.S. 99 (1879), an author had written a book explaining a new system of double-entry accounting, complete with sample ledger forms. A competitor used the same accounting system with slightly different forms. The Court held that the copyright in the book did not give the author a monopoly over the system the book described—only over the author's particular explanation of it. As the Court memorably put it, the copyright in a book teaching an art "gives no exclusive right to the art described therein." If you want a monopoly on a useful method, the Court said, you must seek a patent; copyright is not the right tool.

Swap "double-entry accounting" for "a clever press-your-luck dice mechanic" and you have the entire law of game rules in a nutshell. The rulebook that explains how to play Quibble can be copyrighted. The method of playing Quibble cannot. Copy the rulebook's exact prose and you infringe; copy the method and write your own prose and you are free. Baker v. Selden also gave us a second, related principle that recurs throughout game law: where an expression and a useful method are so intertwined that protecting the expression would effectively monopolize the method, courts deny protection to the expression. That is the doctrinal seed of the merger doctrine, which we meet below.

The cases that applied it to games

Courts have applied this principle to games over and over, and the results are remarkably consistent.

The most quoted line comes from Affiliated Hospital Products, Inc. v. Merdel Game Manufacturing Co., 513 F.2d 1183 (2d Cir. 1975), a dispute over a tabletop "Bagatelle"-style game. The Second Circuit held that the rules of a game are not copyrightable; copyright in the printed rules extends only to the manner in which the rules are expressed, not to the rules themselves. A competitor who paraphrases the rules and sells the same game does not infringe.

The federal courts have been especially firm with card and board games. In a long line of decisions, they have repeatedly refused to let copyright monopolize a way of playing cards, a betting structure, or the basic configuration of a board. So, for example, courts have held that the rules and procedures for playing variants of poker and other card games are unprotectable systems, and that two games sharing the same underlying play are not infringing merely because they share that play. The reasoning is partly doctrinal (§ 102(b)) and partly practical: games are built from a shared, ancient vocabulary—dice, cards, turns, points, racing to a finish, capturing pieces—and locking up that vocabulary would freeze an entire creative tradition. A copyright in "roll dice and move your token" would be a copyright in childhood itself.

The doctrines that finish the job: merger and scènes à faire

Two related filters do most of the work of separating the unprotectable from the protectable inside a game, and you will see both in every serious game-copyright dispute.

The first is merger. When there are only a few ways to express an idea, the expression is said to "merge" with the idea and becomes unprotectable, because protecting the expression would effectively protect the idea itself. For functional game elements—a six-sided die, a standard scorecard, the instruction "move your token the number of spaces shown"—there are only so many ways to say it, and merger strips away protection. Merger explains why you cannot own a bare, utilitarian statement of a rule even though you wrote the words: the words and the rule have become one.

The second is scènes à faire (French for "scenes that must be done"): stock elements so standard to a genre that they cannot be owned. In a fantasy adventure game, wizards, dragons, and treasure chests are scènes à faire; in a racing game, a checkered flag and a lap counter are scènes à faire; in a falling-block puzzle, the very fact of blocks falling is a stock idea of the form. Courts filter these out before comparing two works, because a genre's common vocabulary belongs to everyone who wants to work in the genre. As we will see, the Tetris court leaned heavily on this doctrine—and on the limits of it.

These two filters are not merely defensive talking points; they are formally built into how courts compare games, through the abstraction-filtration-comparison test discussed later in this guide. Knowing that, you can already see the shape of every cloning case: the court abstracts the game into its ideas and its expression, filters out the ideas, the merged elements, the scènes à faire, and the public-domain material, and then compares what is left.

A worked example to fix the rule

Let us make this concrete with our hypothetical studio, Acme Games.

Acme publishes a roll-and-move board game called Tycoon Trail, in which players buy properties, charge rent, and try to bankrupt one another. (If this sounds like a famous real-estate game, that is the point.) A rival, Bolt Studios, releases Magnate Path: same buy-property-charge-rent-bankrupt-your-friends structure, same auction mechanic, same "go around the board and collect a salary each lap" loop. But Bolt wrote its own rulebook, drew its own board with different cities, and named its tokens differently.

Has Bolt infringed Acme's copyright? Almost certainly not. The game system—buy property, charge rent, bankrupt opponents—is an unprotectable method of play under § 102(b). The auction and salary-each-lap mechanics are likewise systems. Bolt can build a game "based on similar principles," exactly as the Copyright Office warns.
What if Bolt copied Acme's rulebook word for word? Now we are talking. The specific text of the rules is protectable expression. Verbatim or near-verbatim copying of the rulebook prose can infringe (subject to merger—a bare functional instruction may have merged with the rule it states).
What if Bolt copied Acme's distinctive board illustration—the hand-painted skyline, the particular cartoon mascot? That artwork is a protected pictorial work. Copying it infringes.
What if Bolt used the name "Tycoon Trail" or something confusingly close? That is a trademark question, not copyright, and Acme may well have a claim—more on that later.

This single example contains the whole strategic picture: the idea and system are free for the taking, but the expression (text and art) and the brand (name) are defensible. The most famous real-world echo is the actual history of Monopoly, which descended from an earlier, freely copied game called "The Landlord's Game." The mechanic was never anyone's to own; the specific Monopoly expression and brand were.

What copyright does protect in a game

If copyright ignores the rules, what is left? Quite a lot, actually. A modern game is a dense bundle of protectable expression, and a thoughtful registration strategy captures all of it. Think of a game as a layer cake; copyright protects most of the layers, just not the recipe.

1. The artwork and graphic design (pictorial and graphic works)

The board illustration, the card faces, the box art, the character designs, the iconography, and creative typographic and layout choices are pictorial and graphic works under 17 U.S.C. § 102(a)(5). For most board games and card games, the art is the single most valuable copyright asset. A competitor is free to copy your mechanic but may not copy your dragon illustration, your map, or your distinctive card layout. This is also where character copyright lives: an original, well-delineated character who appears across a game can be protected as a copyrightable character, the same way film and comic characters are. (For a deep dive on how courts decide when a character is protectable—think of the disputes over comic-book heroes—see our piece on intellectual property disputes concerning superheroes.)

2. The text (literary works)

The rulebook as written, the flavor text on cards, the lore in a campaign book, and the narrative dialogue in a story game—the actual words—are literary works protectable under § 102(a)(1). Remember the distinction: the system the rulebook describes is unprotectable, but the particular sentences you used to describe it are protectable (again, subject to merger for purely functional statements). The more creative and expressive your prose, the stronger the copyright; a bare list of mechanical steps is thin, while a richly written rulebook with examples, humor, and worldbuilding has much more to protect. For the close cousin of this analysis applied to prose works generally, see copyright registration of books, manuscripts, and speeches.

3. The music and sound (musical works and sound recordings)

If your game has a soundtrack, jingles, sound effects, or a theme song, those are protectable as musical works (the composition) and sound recordings (the particular recorded performance)—two distinct copyrights that can be owned and licensed separately. This is mostly a video-game and app concern, but board games with companion audio increasingly raise it too. If you license existing music rather than commission it, the licensing analysis is the same one that governs streaming and sync deals; our guide to music licensing in the streaming era explains how the two music copyrights interact, and understanding copyright registration for a song covers registering the music itself.

4. The audiovisual display (the heart of a video game)

This is where video games diverge sharply from board games. A video game's moving images on screen—the animations, the visual flow of play, the way characters move through a level—are protected as an audiovisual work under § 102(a)(6). The Copyright Act defines audiovisual works as a series of related images shown by a machine. Crucially, courts recognized early that a video game's audiovisual display is fixed and copyrightable even though the exact images on screen change with each play session depending on what the player does. We return to this point below, because it was hotly litigated in the early 1980s and the holdings still govern.

5. The underlying computer code (literary works)

The source code and object code that run a video game are themselves copyrightable as literary works. Software has been treated as a literary work for copyright purposes since Congress amended the Act in 1980 to make that explicit. So a single video game can carry two distinct copyrights at once: one in the audiovisual display the player sees, and one in the program code that produces it. Each can be infringed independently. Registering the code follows the same rules as registering any software, including special deposit options that let you redact trade secrets. Our companion guide, copyright registration of computer programs, covers the code side in detail, and legal protection of software—copyrights, patents, trade secrets, and contracts puts code protection in the larger picture.

A picture of the whole

Put it together and a single video game might involve: an audiovisual-work copyright in the display, a literary-work copyright in the code, musical-work and sound-recording copyrights in the soundtrack, and pictorial-work copyrights in the box art and promotional materials—plus a trademark in the title and, perhaps, a patent on a genuinely novel mechanic. A board game collapses some of these (no code, usually no audiovisual work) but multiplies others (the board, dozens of cards, the box, the rulebook, the miniatures, the tokens). The art of registration is choosing how to package all of this efficiently. For the foundational mechanics that apply to every kind of work, our copyright registration—a comprehensive guide is the master reference, and how to register a copyright with the US Copyright Office walks through the online filing portal step by step. The questions newcomers ask most often are answered in copyright FAQs.

The leading case: Tetris Holding, LLC v. Xio Interactive, Inc.

No discussion of game copyright is complete without the case that most clearly drew the line between an unprotectable game idea and protectable game expression: Tetris Holding, LLC v. Xio Interactive, Inc., 863 F. Supp. 2d 394 (D.N.J. 2012). It is the case lawyers reach for whenever a client says "they copied my game," and it deserves careful attention because it does both things at once—it confirms that you cannot own a game's rules and shows how much expression around those rules you actually can own.

The facts

Tetris is, of course, the legendary falling-block puzzle game: differently shaped pieces (the famous "tetrominoes") drop from the top of a rectangular well, the player rotates and slides them, and complete horizontal lines vanish. A company called Xio Interactive wanted to make a mobile clone called "Mino." Xio was unusually careful and, frankly, honest about its strategy. It studied copyright law, concluded that game rules and functional elements are not protectable, and deliberately built a game that copied only what it believed were the unprotectable parts of Tetris. Xio did not copy a single line of Tetris's code. It set out to copy the idea and avoid the expression.

The problem was that Mino did not just copy the idea of a falling-block puzzle. It replicated, almost pixel for pixel, the specific expressive choices Tetris had made.

What the court held

Judge Freda Wolfson's opinion is a model of clarity. She started exactly where this guide started: with § 102(b) and the principle that the rules and functional aspects of a game are not protected. A falling-block puzzle, the goal of clearing lines, the basic mechanic of rotating pieces—Xio was right that those are unprotectable ideas and methods of operation, and indeed scènes à faire of the genre. Anyone is free to make a falling-block puzzle game.

But, the court explained, Xio went much further. Tetris had made countless expressive choices that were not dictated by the rules of a falling-block game: the particular dimensions and bright, distinctive look of the playfield; the specific shapes, colors, and "garbage" rendering of the pieces; the way pieces appeared and behaved; the overall audiovisual presentation. None of these was necessary to make a falling-block puzzle. Xio could have used different shapes, colors, proportions, and visual style and still had a perfectly functional puzzle game. Instead it copied Tetris's particular expressive choices wholesale. As Judge Wolfson observed, Mino was so similar that it was difficult to tell the two games apart side by side—a telltale sign that what was copied went beyond the unprotectable idea into protected expression.

The court rejected Xio's clever argument that because the visual elements were tied to gameplay, they must be functional and therefore unprotectable. The right question, the court said, is whether the expression was necessary to the game's function or was instead one of many possible ways to express the underlying idea. Where a designer had real expressive choices and a copier reproduced those particular choices, copyright protects them—even in a game, even when they relate to play. The court found the two works substantially similar as a matter of law and granted Tetris summary judgment.

Why Tetris matters so much

Tetris Holding v. Xio is the canonical statement of the "look and feel" doctrine in games. It teaches three lessons that should guide every developer:

You cannot copyright the rules or the core mechanic. Xio was correct about that, and the court agreed. A falling-block puzzle is anyone's to make.
You absolutely can protect the specific expressive choices that surround the mechanic—the distinctive visual style, the particular look of the pieces and playfield, the audiovisual presentation—when those choices were not dictated by the game's function.
"It's just gameplay" is not a magic shield. A copier cannot reproduce a game's distinctive expression and then claim immunity by arguing that the expression relates to how the game is played. The test is necessity, not relatedness.

The practical takeaway for a developer worried about clones is bracing but useful: if a competitor copies only your mechanic and builds genuinely original art, code, and presentation around it, copyright probably will not help you. But if they copy your expression—your look, your art, your specific audiovisual choices—Tetris gives you a powerful precedent. That is exactly why your registration strategy should aggressively capture the expressive layers, and why your other IP tools (trademark, trade dress, and occasionally patent) matter so much for the parts copyright leaves exposed.

The early video-game cases: why the audiovisual display is protected at all

Before Tetris, a more basic question had to be settled in the arcade era: can the on-screen action of a video game even be copyrighted, given that the images change every time you play? A wave of early-1980s decisions answered yes, and they remain good law. They are worth knowing because they explain the doctrinal foundation that Tetris later built on, and because the examples are delightfully vintage.

In Williams Electronics, Inc. v. Artic International, Inc., 685 F.2d 870 (3d Cir. 1982), a defendant argued that a video game (the game "Defender") could not be a fixed audiovisual work because the precise sequence of images depended on how the player played. The Third Circuit rejected this. The game's repetitive elements—the attract mode, the characters, the basic visual sequences—were sufficiently fixed and original to qualify for copyright, even though player input varied the exact images. The audiovisual work is protected even though no two play sessions look identical. Stern Electronics, Inc. v. Kaufman, 669 F.2d 852 (2d Cir. 1982), reached the same conclusion the same year for the game "Scramble," confirming that the "repetitive sequence of a substantial portion of the sights and sounds" satisfies the fixation requirement.

The Pac-Man case made the point vivid and, for our purposes, decisive. In Atari, Inc. v. North American Philips Consumer Electronics Corp., 672 F.2d 607 (7th Cir. 1982), the maker of a Pac-Man look-alike called "K.C. Munchkin" argued that the idea of a maze-chase game—a gobbler eating dots while fleeing ghosts—was unprotectable. The Seventh Circuit agreed that the idea of a maze-chase game was free for all, but held that the defendant had copied Pac-Man's specific expression: the distinctive look of the gobbler character, the particular design and behavior of the ghost monsters, the overall audiovisual presentation. That copying of expression, the court held, would likely confuse an ordinary observer and infringed. If this sounds exactly like Tetris three decades early, that is because it is the same principle: the maze-chase concept is an unprotectable idea; the particular look of Pac-Man and his ghosts is protectable expression. Atari v. North American Philips is, alongside Tetris, the case to cite for the proposition that a video game's distinctive characters and presentation are protected even where the underlying genre is not.

And in Midway Manufacturing Co. v. Artic International, Inc., 704 F.2d 1009 (7th Cir. 1983), involving the games "Galaxian" and "Pac-Man," the court confirmed that a video game's audiovisual display is a copyrightable work distinct from the underlying program, and that selling devices to speed up or alter the game could constitute infringement of the audiovisual work.

The throughline from these arcade cases to Tetris is unbroken and worth memorizing: the genre or concept is an unprotectable idea; the specific audiovisual expression is protectable. More than forty years of consistent precedent stand behind that sentence.

How a court actually compares two games: the infringement framework

Registration tells you what you own. Winning a cloning lawsuit requires you to prove that what the defendant copied was yours and protectable—and that is a separate, structured analysis worth understanding before you ever file a complaint, because it tells you in advance which clones you can stop and which you cannot. This is the framework lawyers reach for in copyright infringement litigation, and it has two big elements.

Element one: actual copying

A plaintiff must first prove that the defendant actually copied from the plaintiff's work rather than creating it independently. Direct proof (an admission, a watermark, eyewitness testimony) is rare. Usually the plaintiff proves copying circumstantially, in one of two ways.

The first is access plus probative similarity: evidence that the defendant had a reasonable opportunity to see the plaintiff's work (a published, widely distributed game easily satisfies this) combined with similarities that suggest copying rather than coincidence. Probative similarity can include even unprotected elements and tell-tale shared quirks—the same idiosyncratic errors, the same arbitrary choices—because the question at this stage is simply did copying happen, not was the copying wrongful. Three Boys Music Corp. v. Bolton, 212 F.3d 477 (9th Cir. 2000), is the standard reference on access.

The second is striking similarity: a likeness so comprehensive or exact that it cannot be explained except by copying. Striking similarity can create an inference of copying even without separate proof of access, because the inference of access arises from the inference of copying itself. Selle v. Gibb, 741 F.2d 896 (7th Cir. 1984), is the leading case. A defendant can always rebut by proving independent creation—which is why a careful developer keeps dated design documents, version histories, and a clean development record. For video games, a copier who, like Xio, openly studied the original faces an easy access showing.

Element two: substantial similarity of protected expression

Proving copying is not enough. The plaintiff must also show that the defendant copied a legally significant amount of protectable expression—that the works are substantially similar in their protected elements. This is where § 102(b), merger, and scènes à faire do their work, because the court must strip out everything unprotectable before comparing. The circuits use several overlapping tests, and which one applies can shape a game case:

The ordinary observer (and "more discerning" ordinary observer) test. Used in various forms by the First, Second, Third, Fifth, and Seventh Circuits, it asks whether an ordinary observer would overlook the differences and find the works to have the same aesthetic appeal. When the works share unprotectable elements, courts apply the more discerning version, focusing only on the protectable expression. This is essentially the lens Atari v. North American Philips used for Pac-Man.
The extrinsic/intrinsic test. Used by the Ninth Circuit and others, it splits the inquiry: the extrinsic test objectively compares specific expressive elements (for an audiovisual or story work: plot, theme, mood, setting, pace, characters, sequence of events—filtering out unprotectable material), and the intrinsic test asks subjectively whether an ordinary person would find the two works' "total concept and feel" substantially similar. The plaintiff must win both.
The abstraction-filtration-comparison ("AFC") test. Developed for software in Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992), and adopted broadly, the AFC test is the natural tool for video games. The court abstracts the work into levels (from its general purpose down to its concrete code or images), filters out everything unprotectable at each level—ideas, elements dictated by efficiency or compatibility or industry standards, merged expression, scènes à faire, and public-domain material—and then compares only the protected expression that remains. Notably, the Eleventh Circuit has held that it is the defendant's burden to show which elements are unprotectable, not the plaintiff's burden to prove what is protectable. Compulife Software Inc. v. Newman, 959 F.3d 1288 (11th Cir. 2020).

For video games, courts apply this framework to three layers at once: the visual display, any sights and sounds, and any story elements (plot and characters) are analyzed like other audiovisual works, while the code is analyzed under the AFC test, with infringement possible from verbatim copying or from copying the code's structure, sequence, and organization. That is precisely why Tetris and Atari came out the way they did: once the court filtered out the unprotectable falling-block and maze-chase ideas, what remained—the defendants' wholesale reproduction of the plaintiffs' distinctive expressive choices—was substantially similar protected expression.

The strategic lesson is the same one that runs through this whole guide, now sharpened: before you accuse anyone of cloning your game, run the filtration step yourself. Honestly subtract your mechanic, your genre's stock elements, and any merged functional text. If the defendant copied only what is left after that subtraction, you have a case. If everything they copied disappears in the filtration step, you do not—at least not in copyright.

How to register a game with the U.S. Copyright Office

Now to the practical heart of this guide. You understand what is protectable, what is not, and how a court compares two games. How do you actually register? The answer depends on whether you have a physical game (a board or card game) or a digital game (a video game or app), because they travel through the registration system differently.

A reminder on why you bother registering at all, since copyright technically exists the moment you fix your work: registration delivers a stack of benefits that turn a theoretical right into an enforceable one.

Registration is a prerequisite to suing. For a U.S. work you generally must hold a registration before you file an infringement suit, 17 U.S.C. § 411(a)—and the Supreme Court confirmed in Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, 586 U.S. 296 (2019), that you need the registration in hand (the Office must have acted on your application), not merely a pending application. (If the Office refuses registration, § 411(a) still lets you sue, provided you serve notice and a copy of the complaint on the Register of Copyrights.)
Statutory damages and attorney's fees. Registration unlocks the possibility of statutory damages—up to $150,000 per work for willful infringement—and attorney's fees under 17 U.S.C. §§ 412 and 504, but only if you registered before the infringement began or within three months of first publication. For a game that might be cloned, that early registration is the difference between a lawsuit worth bringing and one that is not, because actual damages from an early-stage clone are often hard to quantify and small.
Prima facie validity. A registration made within five years of first publication is prima facie evidence of the copyright's validity and of the facts stated in the certificate, 17 U.S.C. § 410(c)—shifting the burden onto a defendant to attack your copyright.
Customs recordation. You can record your registration with U.S. Customs and Border Protection to block the importation of infringing copies, 19 C.F.R. § 133.31—valuable for physical games manufactured and knocked off overseas.

For the full strategic case for registering, see copyright registration—a comprehensive guide, and for the downstream enforcement story, what are the consequences of pirating intellectual property.

Step 1: Inventory the protectable components

Before you touch the application portal, list every protectable layer of your game:

The board or game surface (artwork)
The cards (art and text)
The box art
The rulebook (text and any illustrations)
Character designs and iconography
For a video game: the audiovisual display, the code, the music, and the sound

You will not necessarily file a separate registration for each item—often you can capture several in one filing—but you cannot package efficiently what you have not inventoried.

Step 2: Choose the right application type and class

For physical games, the Copyright Office's guidance gives a simple and helpful rule of thumb, and it comes straight from the Office's published advice on games:

If your game includes any written element, such as instructions or directions, the Copyright Office recommends that you register it as a literary work. Registering as a literary work lets you cover all the copyrightable parts of the game in a single registration, including any pictorial elements.

If the copyrightable elements consist predominantly of pictorial matter—the art carries the game and there is little or no text—register it as a work of the visual arts.

This is genuinely useful packaging advice. Most board games have a rulebook and card text, so most board games are registered as literary works, and that single literary-work registration can sweep in the board art, the card art, and the box art as part of the same work. A purely visual, near-wordless game (a beautiful abstract tile game with no rulebook text on the components, say) goes in as a visual-arts work.

Separately, the Office distinguishes among application types. Most games go in on the standard application, which covers a single work—including a work by one author, a joint work, a work made for hire, a derivative work, or a compilation. (A single application is reserved for a narrow situation: one work, by one author, who is also the sole owner, not made for hire—rare for a commercial game built by a team.) The Office's group registration options (for serials, photographs, short online literary works, and similar batches) generally do not fit a game, so do not expect to register "all our card art" as a group in the way a photographer registers a batch of photos; package the art instead inside the single work registration as authorship in pictorial material. Getting the type right at the outset avoids a refusal and a re-filing.

Step 3: Special handling for video games

For video games, the practice differs from physical games. Because a video game is fundamentally an audiovisual work, developers commonly register the game as an audiovisual work, which can cover the integrated visual and aural display. The underlying computer program is often registered separately as a literary work, especially when the developer wants to use the software-specific deposit options (including the ability to redact trade-secret portions of the code). Whether to file one registration covering the whole game or separate registrations for the audiovisual work and the code is a judgment call that depends on what you most need to protect and litigate—and because the audiovisual work and the code can be infringed independently (recall Xio copied the look but none of the code), many studios register both. Our copyright registration of computer programs guide explains the code-side options and the trade-secret redaction rules in detail.

Step 4: File through the eCO system

Registrations are filed electronically through the Copyright Office's Electronic Copyright Office (eCO) system. You will complete an application identifying the author(s), the claimant (who owns the copyright—often a studio rather than the individual artist, if there is a valid work-made-for-hire arrangement or assignment), the year of creation, whether and when the work was published, and the nature of authorship (text, artwork, audiovisual material, computer program, and so on). You pay a filing fee and submit a deposit (more on deposits below). The effective date of registration is the day the Office receives a complete application, fee, and deposit—not the day the certificate issues—so file early. For a granular walkthrough of the portal, see how to register a copyright with the US Copyright Office.

A note on who owns the game: most commercial games are built by teams—an illustrator, a writer, a designer, a coder, a composer. Each contribution can carry its own authorship. To consolidate ownership in your studio, you need either valid work-made-for-hire arrangements (for qualifying employees, or for specially commissioned works that fit one of the narrow statutory categories and are covered by a signed agreement) or written assignments from independent contractors. Get those papers signed before you register, and certainly before you litigate; a registration in the studio's name is far stronger when backed by a clean chain of title. If different authors contributed separable components, you may also be navigating rules about contributions to a collective work. A defective chain of title is one of the most common—and most avoidable—reasons a game company's infringement suit founders.

Step 5: Handle versions as derivative works

Games evolve. You release a second edition with rebalanced rules and new art; your video game ships a sequel or a major content update. Each new version that adds original, copyrightable material is a derivative work under 17 U.S.C. § 101, and the new material gets its own protection under § 103—but only the new material; registering the second edition does not re-protect what was already in the first. On the application you identify the preexisting material and disclaim it, then claim the new authorship. This matters for software especially, where every meaningful release is, in copyright terms, a new derivative version of the prior code. Our guide to copyright registration for derivative works covers exactly how to fill out the application to exclude preexisting material and claim only what is new.

The deposit and "identifying material" rules for physical games

Here is where board-game makers hit a wall that digital developers never see: the deposit requirement. To register, you generally must submit a copy of the work to the Copyright Office. For a flat work that is easy—a manuscript is a PDF. But a board game is a three-dimensional object that may include a folded board, a deck of cards, a fistful of dice, plastic miniatures, and an oversized box. You cannot upload a box of miniatures. So the Copyright Office's regulations provide special rules, and they are spelled out in the Office's guidance on games and in 37 C.F.R. § 202.20–202.21. Here is the practical version.

If the game is published, the basic deposit is one complete copy of the work. Send the physical game.

But there are three big exceptions where you send "identifying material" instead of the actual game:

Oversized boxes. If the published game comes in a box larger than 12″ × 24″ × 6″—that is, more than 1,728 cubic inches total—you do not have to ship the whole game. Instead you submit identifying material representing it.
Three-dimensional pieces. If the published game contains fewer than three three-dimensional elements, you submit identifying material for those parts in lieu of the parts themselves. (The logic is that the Office does not want to warehouse boxes of plastic tokens and miniatures.)
Unpublished games. If the game is unpublished, you may deposit either one copy of the game or identifying material.

What is "identifying material"? It is a set of two-dimensional representations of the game that show its copyrightable content. In practice this means photographs, photostats, slides, drawings, or other flat reproductions. The Copyright Office's guidance gives specific physical requirements that are easy to get wrong, so here they are concretely:

The identifying material should include as many pieces as necessary to show the entire copyrightable content of the work—including the copyright notice, if a notice appears on the game.
All pieces of identifying material other than transparencies must be no smaller than 3″ × 3″ and no larger than 9″ × 12″, with 8″ × 10″ preferred.
At least one piece must indicate, on its front, back, or mount, the title of the work and an exact measurement of one or more dimensions of the actual game.

In plain terms: photograph your board, your cards, your box, and your pieces clearly enough that an examiner can see all the copyrightable artwork and text; print the photos at a reasonable size; and label at least one photo with the game's title and a real measurement. That last requirement—an actual dimension—often surprises first-time registrants, but it is there so the record reflects the real three-dimensional object the photos represent. While you are photographing, capture your copyright notice on the components too; although notice is no longer mandatory for works published after March 1, 1989, a proper notice defeats an "innocent infringement" defense, so a clear notice on the box and rulebook is cheap insurance. See copyright notice—form, function, and best practices for the correct format.

A practical tip: because these rules are detailed and the Office's deposit regulations are periodically updated, confirm the current requirements on the Copyright Office's website (or with counsel) before you ship anything, and keep your own high-resolution photographs of every component on file regardless. If you ever litigate, contemporaneous images of exactly what you published are invaluable evidence—both to prove the content of your registered work and to support a striking-similarity argument against a clone.

Copyright is not enough: the other three tools every game needs

By now the strategic gap should be obvious. Copyright protects your art, text, audiovisual display, and code—but leaves your mechanic, your name, and your overall look either unprotected or only partly protected. To cover those, game companies layer on three other forms of protection. A serious game-protection strategy uses all four tools, each for what it does best. The same layered logic governs other digital products; see protecting your mobile app—a comprehensive IP strategy guide for the parallel analysis.

1. Trademark — for the name, logo, and brand

Your game's title is not protected by copyright (titles never are). It is protected, if at all, by trademark law—the law of brands and source identifiers, governed federally by the Lanham Act. A trademark protects the name "Tycoon Trail," the stylized logo, and the brand consumers associate with your studio, by preventing competitors from using a confusingly similar mark on competing goods. This is the right tool to stop a "Squabble" from trading on the goodwill of your "Quibble." Trademark rights can last indefinitely so long as you keep using the mark and defending it, which makes a strong game brand one of the most durable assets a studio owns—think how long "Monopoly," "Scrabble," and "Magic: The Gathering" have functioned as brands.

If you are launching a game, clearing and registering the name is often as important as registering the copyright in the art. Run a clearance search first; our guide to how to conduct a comprehensive trademark clearance search explains how. To understand how the two systems differ and why you need both, read copyright vs. trademark—what is the difference. For the brand-protection side specifically, trademark basics and the trademark process explain how to secure and enforce a mark, and when to trademark your brand addresses timing for a new release.

2. Patent — for a genuinely novel mechanic or apparatus

Remember Baker v. Selden's lesson: if you want to own a method, copyright is the wrong tool—patent is the right one. A truly new and non-obvious game mechanic or a novel physical game apparatus can, in principle, be protected by a utility patent, which protects functional inventions for 20 years from filing. This is rare and demanding: most game mechanics are not new in the patent sense (the bar is novelty and non-obviousness over everything that came before, and games have a very long history), and software/method patents face additional eligibility hurdles after the Supreme Court's decision in Alice Corp. v. CLS Bank International, 573 U.S. 208 (2014)—an issue explored in patent eligibility after Alice. But it happens. Magic: The Gathering's "tapping" mechanic was famously patented; various electronic and casino game features have been patented; novel game controllers and hardware are routinely patented. If your game's competitive advantage is a genuinely novel mechanic—the very thing copyright refuses to protect—a patent may be the only way to fence it, and you should talk to a patent attorney early, because patent rights can be lost by public disclosure or sale (the one-year statutory bar). A design patent can separately protect the ornamental appearance of a physical game piece or device. Our overviews patent basics—a plain-English guide and utility patent basics explain the landscape, and what constitutes patent infringement covers enforcement.

A reality check worth stating plainly: for the vast majority of board and card games, patenting the mechanic is neither available nor worth the cost. The realistic protection stack for most tabletop games is copyright (art and text) + trademark (name) + trade dress (look), with patent reserved for the rare truly novel invention.

3. Trade dress — for the overall look and feel

Trade dress is a branch of trademark law that protects the overall look and feel of a product or its packaging when that look has become associated with a single source and is not functional. For games, trade dress can protect the distinctive visual presentation of a product line—the recognizable design language of a game's packaging and components—so that a competitor cannot mimic your game's overall appearance in a way that confuses consumers about who made it. Trade dress is powerful but limited by the functionality doctrine: you cannot use trade dress to protect features that are functional (that exist to make the game work), only those that serve to identify the source; and for product-design trade dress you must prove secondary meaning under Wal-Mart Stores, Inc. v. Samara Brothers, Inc., 529 U.S. 205 (2000). It overlaps conceptually with the copyright "look and feel" idea from Tetris, but it lives in trademark law and asks a different question—not "did you copy my expression?" but "will consumers be confused about who made this?"

Trade secret — an honorable mention

One more tool deserves a nod: during development, before you publish, your unreleased rules, mechanics, and design documents can be protected as trade secrets—confidential business information that derives value from being secret and that you take reasonable steps to guard (NDAs with playtesters, confidentiality clauses with contractors). Trade secret protection evaporates the moment you publish the game, because then the public can see everything. But in the development window it is real, and it is the one tool that can protect the mechanic itself while it is still hidden. See protection of trade secrets for how to run a confidentiality program and building a trade secret protection program from scratch for the operational details, and have playtesters sign enforceable non-disclosure agreements.

The layered strategy, summarized

For a typical commercial game, the protection stack looks like this:

Copyright registrations covering the artwork, rulebook text, audiovisual display (video games), code (video games), and music.
Trademark registration covering the game's name and logo.
Trade dress protection (often unregistered, sometimes registered) for the distinctive overall look of the product and packaging.
Patent (utility and/or design) only where a genuinely novel mechanic or apparatus justifies it.
Trade secret discipline during development, backed by NDAs.

No single tool is enough. Copyright does the heavy lifting on the expressive content, trademark guards the brand, trade dress guards the look, patent (rarely) guards the mechanic, and trade secrecy guards the pre-launch design. A clone that wants to copy your game's play may be free to do so under copyright—but it still has to do so without using your art, your name, your look, or (if you hold one) your patented mechanic. Done well, that leaves a would-be cloner with a hard, expensive road and your studio with a defensible position.

Special situations and frequent points of confusion

A few recurring scenarios deserve their own treatment, because they generate most of the questions game lawyers actually field.

Video games as both audiovisual works and software

As discussed, a video game is simultaneously an audiovisual work (the display) and a literary work (the code). The two copyrights are distinct and can be infringed independently. A clone that copies your code infringes the literary work and is analyzed under the abstraction-filtration-comparison test (verbatim copying or copying of structure, sequence, and organization, per Computer Associates v. Altai); a clone that copies your audiovisual presentation (as in Tetris) can infringe the audiovisual work even if it wrote entirely new code—which is exactly what Xio did. For registration, decide deliberately whether to file one registration for the game as an audiovisual work, a separate one for the code, or both. If protecting the code (and its trade secrets) is a priority, register the program separately using the software deposit options described in copyright registration of computer programs.

Game apps and mobile games

A mobile game is just a video game on a phone, plus app-store distribution and often a backend service. The same copyright analysis applies: audiovisual work, code, art, music. The added wrinkles are the app-store license terms, in-app-purchase and consumer-protection rules, and privacy obligations—but those are business and regulatory questions, not copyright registration questions. The copyright registration strategy is identical to any other video game; see protecting your mobile app for the surrounding issues.

User-generated content and modding

Many modern games invite players to create content—levels, skins, custom cards, mods. That player-created content can carry its own copyright, owned by the player, which is why robust games include terms-of-service licenses spelling out who owns what and granting the studio a license to use and display user creations. If a third party then infringes your game through a platform, the notice-and-takedown system matters; see how to file a DMCA takedown notice and respond to one. If your game has a community-content layer, your lawyer should be drafting the content license as carefully as you are drafting the rulebook.

Public-domain and traditional games

You cannot copyright chess, poker, or the basic mechanics of any traditional game—those methods are ancient, unowned, and squarely in the public domain even setting § 102(b) aside. What you can protect is your particular expression of a public-domain game: your original chess-set sculptures, your beautifully illustrated deck of playing cards, your distinctively designed poker table, your branded edition. The mechanic is everyone's; your expression of it is yours. The same logic explains why dozens of publishers can lawfully sell competing editions of bridge, dominoes, or backgammon.

Fan games and clones of your game

If you discover a clone, run the substantial-similarity filtration honestly before sending a cease-and-desist: did they copy your expression (art, text, audiovisual look, code) or only your unprotectable mechanic and the genre's scènes à faire? If only the mechanic and stock elements, copyright will not help, and an overreaching copyright threat can backfire—courts and platforms increasingly scrutinize bad-faith takedowns, and a baseless claim can expose you to liability. But check your other tools—did they use a confusingly similar name (trademark) or mimic your overall look (trade dress)? Often the strongest claim against a clone is not copyright at all but trademark or trade dress. Match the legal theory to what was actually copied, and remember that for the copyright claim you will need a registration in hand before you sue (Fourth Estate).

Key takeaways

If you remember nothing else from this guide, remember these:

Game rules, mechanics, systems, and methods of play are not copyrightable. Section 102(b) puts them outside copyright, full stop. A competitor can build a game "based on similar principles" and copyright cannot stop them. This rule is old (Baker v. Selden, 1879), statutory (17 U.S.C. § 102(b)), and unwavering, and it is reinforced by the merger and scènes à faire doctrines.
Copyright protects the expression: artwork, text, music, audiovisual display, and code. Register all of it. For physical games with any text, register as a literary work to sweep in the art; for predominantly pictorial games, register as a visual-arts work; for video games, treat the display as an audiovisual work and consider registering the code separately.
The Tetris and Atari line is the law of game cloning. Tetris Holding, LLC v. Xio Interactive, Inc., 863 F. Supp. 2d 394 (D.N.J. 2012), and Atari v. North American Philips, 672 F.2d 607 (7th Cir. 1982), confirm that you cannot own the idea of a genre, but you can protect the specific expressive choices around it—and "it's just gameplay" is no defense to copying genuine expression.
Know how the infringement test works before you sue. A plaintiff must prove actual copying (via access plus probative similarity, or striking similarity) and substantial similarity of protected expression—after the court filters out ideas, merged elements, scènes à faire, and public-domain material via the abstraction-filtration-comparison test. Run that filtration on your own clone claim first.
Mind the deposit rules for physical games. Oversized boxes (over 12″ × 24″ × 6″) and games with fewer than three three-dimensional pieces call for identifying material—properly sized (3″ × 3″ to 9″ × 12″), properly labeled photographs showing the title and an actual dimension—rather than shipping the whole game.
Copyright is one tool of four. Use trademark for the name and logo, trade dress for the overall look, patent (rarely) for a truly novel mechanic, and trade secret discipline before launch. The realistic stack for most games is copyright + trademark + trade dress.
Register early. Registration is a prerequisite to suing (Fourth Estate, 586 U.S. 296 (2019)), gives you prima facie validity (§ 410(c)), and unlocks statutory damages and attorney's fees (§ 412)—the leverage that makes anti-clone enforcement viable.

Frequently asked questions

Can I copyright my board game's rules? You can copyright the rulebook as a literary work—the particular words, examples, and illustrations you wrote. You cannot copyright the rules themselves (the system and method of play), and even your wording may lose protection under the merger doctrine where a functional instruction can only be phrased a few ways. A competitor who paraphrases your rules and sells the same game does not infringe your copyright; one who copies your rulebook's distinctive expressive text does. This is the rule of Affiliated Hospital Products v. Merdel Game and the Copyright Office's own guidance.

Someone copied my game's mechanic exactly. Can I sue? Probably not for copyright infringement, if they copied only the mechanic and built original art, text, and presentation around it. Mechanics are unprotectable methods of play under § 102(b), and after the court filters out the mechanic and the genre's stock elements, nothing protectable may remain. But check three things: Did they copy your artwork or text (copyright)? Did they use a confusingly similar name (trademark)? Did they mimic your overall look and feel in a source-confusing way (trade dress)? Often the viable claim is trademark or trade dress, not copyright. And if your mechanic is genuinely novel and you obtained a patent, you may have a patent claim.

How do I register a video game? A video game is typically registered as an audiovisual work, which can cover the integrated visual-and-aural display. Because a game also contains copyrightable computer code, developers often register the underlying program separately as a literary work—particularly to use the software deposit options that allow redaction of trade-secret code, and because the display and the code can be infringed independently. See our copyright registration of computer programs guide.

My board game comes in a huge box with miniatures. What do I send to the Copyright Office? If the box exceeds 12″ × 24″ × 6″ (1,728 cubic inches), or the game has fewer than three three-dimensional elements, you submit identifying material—photographs or drawings showing all the copyrightable content—instead of the whole game. The images must generally be between 3″ × 3″ and 9″ × 12″ (8″ × 10″ preferred), and at least one must show the title and an actual dimension of the game. Confirm current requirements with the Copyright Office before shipping.

Should I register as a literary work or a visual-arts work? The Copyright Office advises: if your game includes any written element (instructions, card text), register it as a literary work, which lets you cover the art and text together in one registration. If the copyrightable content is predominantly pictorial with little or no text, register it as a work of the visual arts. Most games use the standard application (one work), not group registration.

Can I patent my game? Sometimes. A genuinely novel and non-obvious game mechanic or apparatus can be protected by a utility patent (20 years), and the ornamental appearance of a game piece can be protected by a design patent. This is the only way to protect the mechanic itself, which copyright refuses to touch—but it is demanding, expensive, often unavailable (especially for software-implemented methods after Alice), and unsuited to most games, since the bar is novelty over the entire history of games. Talk to a patent attorney early, before any public disclosure or sale. See utility patent basics.

How do I protect my game's name? Through trademark, not copyright—titles are never copyrightable. Clear the name for conflicts, then register it as a trademark with the USPTO. A strong game brand can last indefinitely. Start with how to conduct a comprehensive trademark clearance search, trademark basics, and the trademark process.

Do I have to register copyright at all? Doesn't it exist automatically? Copyright exists automatically the moment your work is fixed, but you generally cannot sue for infringement of a U.S. work until you have a registration in hand (Fourth Estate, 586 U.S. 296 (2019)), and you cannot recover statutory damages or attorney's fees unless you registered before the infringement or within three months of first publication (§ 412). Registration within five years of publication is also prima facie evidence that your copyright is valid (§ 410(c)). For a game that might be cloned, prompt registration is what makes enforcement practical. See copyright registration—a comprehensive guide.

What about an old or traditional game like chess or poker? The mechanics of traditional public-domain games belong to everyone and cannot be copyrighted. But your original expression of such a game—your sculpted chess set, your illustrated deck, your branded edition—is protectable, and your brand name can be a trademark.

This article is general information, not legal advice. Intellectual property law is fact-specific and changes over time; deposit rules, fees, and case law evolve. For guidance on protecting a particular game, consult qualified intellectual property counsel.