Referencing things in board games

'Is it legal', 'can I do this' type questions and discussions.
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MaxAppian
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Referencing things in board games

Post by MaxAppian » Mon Jan 29, 2018 9:36 pm

Hello! I'm delighted I found this space to ask questions regarding copyrighted material.

I am working on a USA based card game in which some card make references to pop culture things. Perhaps a quote from Star Wars or a card referring to the name of a television show. Some of the cards are made up usernames (and in the wide world of the interweb it is entirely possible this user name has been taken- by several people among different sites). Some of the cards contain photographs of things (that I took) with other board games in the background or company logos on t-shirts and the like.

I'm wondering where I might be crossing any lines. It seems to me that it might be classified as fair use. I know Cards Against Humanity has done similar things, but I'm not sure if they got permission first or use "fair use". Would it be enough to slap a "TM" on it or even at all? Thanks in advance!

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AndyJ
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Re: Referencing things in board games

Post by AndyJ » Tue Jan 30, 2018 9:39 am

Hi Max,

Just to be clear, if by username, you mean the sort of made up word required to login into a web site, such as 'MaxApplan' or 'AndyJ', then that's not a problem. Names aren't subject to copyright. Using a URL on the otherhand would involve similar issues to trade mark use, about which more later.

I can't see any copyright problems with using quotations or names of characters or references to films, TV shows etc. As you mention, any possible infringement should be covered by fair use or fair dealing exceptions.

Generally speaking, trade mark infringement shouldn't be an issue either because you would not being using any trade marks in the course of trade, that is to say, to advertise, promote or sell the game. There is no likelihood that while a player is involved in a game they are going to be confused as to the originator of the game just because they notice a trade mark for a well known brand. However I would avoid using images of the trade marks of other board or card games as this is the one area where confusion might arise. Unfortunately the sort of fair use exceptions you are probably thinking of don't apply to trade mark law. The only other problem I can see relates to something called trade mark dilution which is mainly an issue in North America. This can occur when a trade mark starts being using generically and loses its unique association with the maker's product. The classic example is the trade mark Hoover which many people use as a verb to mean vacuum cleaning with any brand of cleaner. The former trade mark Aspirin is another example of a trade mark which lost its identity through dilution. However from what you have described it doesn't sound as if your planned use of any trade mark would be other than in the context of the actual product and so dilution seems less likely.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

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