Wow… I think alias Tree needs to find him a EWE to spend some time with; he’s having some major frustration issues going on!! LOL

don’t threaten…

be like Nike and……….

JUST DO IT

Close this thread. I’m deleting my account to this pitiful website.

What did I just say, wise guy? Pretty crappy forum.

Pretty thick bark on that tree.

It took me 5 posts, asking my question 5 different ways, to finally get the answer I was trying to receive. I would indeed call that some measure of ignorance. How could it be so difficult to comprehend what someone is asking?

Please refrain from further replying to this topic. I have my answer and it was not worth the labor it took to find it.

Just give him his money back…

Now everyone, who is the ONLY other person you’ve EVER heard say something like this:
“I’ve already been noticing the sheer ignorance of many supposedly seasoned “inventors””

—

Wow, alias Nevin…. Maybe you should study the art of MANNERS first, and refrain from spouting
your arrogant ad homonyms at those who are sincerely attempting to render assistance to you!

Perhaps you prefer direct and simple?

You asked:
“Would someone care to explain, then, why anyone would patent a toy or game, when they can just copyright it?”

Because:
You can’t get patent protection from a copyright.
You can’t get copyright protection from a patent.
If your toy/game/invention has both, you may need both.

That is why.

Best of Luck….

“however, the 2 dimensional art work on your game board could very well be copyrighted”……..

Nevin, you made to do some further studying….. the above statement is indeed accurate….nowhere did I say that copyrights ONLY apply to 2-D works…..

also your statement:
“In fact, I seem to be one of the only ones on this forum who even knows this fact”

you may want to reign in the power trip….there are actual IP attorneys here in these forums….

if you think you know it all already, don’t ask.

Nevin,

You misinterpreted my post…..I was only giving an EXAMPLE and used a 2-D game board as a talking point…..my copyright is a sculptured action figure (3-D) copyrighted under the VA category…..so you are preaching to the choir with your last statement…

I was only trying to answer your question about “why would someone choose to patent a toy or game when you can copyright it”….

In the simplest of terms, because they are two VASTLYdifferent animals…the differences in what they protect and how are many…..
I am sorry I was unable to help you. Perhaps you should speak with an IP attorney to better help you with your question.

@ Greg M

Greg, you are incorrect. The paragraph states “Copyright protects original “pictorial, graphic, and sculptural works,” which include two- and three-dimensional works of fine, graphic, and applied art.¹”

Notice how it includes “three-dimensional sculptures”. Many toys and, more importantly, dolls, are only 1 piece, and do not have multiple components.

On page 1, there is a section titled “Publication” which eventually reads “When the work is reproduced in multiple copies, such as in reproductions of a painting or castings of a statue, the work is published when the reproductions are publicly distributed or offered to a group for further distribution or public display.”

Notice how it is talking about the distribution of 3-dimensional artifacts – still in regards to copyright. Your idea that copyrights must be 2-dimensional is false.

In fact, I seem to be one of the only ones on this forum who even knows this fact, even when I just started studying intellectual property in December – quite casually, at that. And with very small amounts of reading I’ve already been noticing the sheer ignorance of many supposedly seasoned “inventors”. How can somebody go years upon years and never learn the sorts of factoids I’ve been finding left and right?

Hi Nevin,

Page two could probably be less confusing. But, do read the section of page 2 regarding “Useful Articles.” By the definition provided, a game and its pieces generally are useful articles. Also notice the vague language used, i.e. “could” rather than “does.”

Elements of the design of a game or its pieces can be subject to copyright protection, but in some sense they must be considered separate from the game itself. If it seems a little confusing, it can be…and I allow for the possibility that I may stand to be corrected on some level.

Anyways, here are the best couple of links (copy & paste) I can find (within minutes) on the topic:

fwithrow.gordonrees.com/pubs/pdf/FinalHulleySybertCPY203.pdf

millermartin.com/sites/default/files/documents/Copyright%20&%20Design%20Patent%201%20pager%20v2.pdf

Hi Nevin,

Welcome to EN.

I am no attorney, but here is my take.

These are two completely different worlds…..The Visual Arts PDF you reference is for copyrights only and if you read the paragraph before the bullet points you see it references only “pictorial, graphic and sculptural works”……I actually have an issued Visual Arts copyright for a toy I designed in 1992 (VAu000248103 / 1992-10-20 )….Since the toy was an action figure, I was able to protect the work, but only the design of the figure…I also have an issued copyright for a storyline that goes with a toy line I submitted to the Bandai search here at EN….however, the only thing that protects is the words, the story on the page…..not the figures, etc…..
Don’t be fooled by the words “toy” and “games” in those bullet points….you cannot protect any aspect of the toy or game outside of the definition of copyright:

What does copyright protect?
“Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation,”

As to your question of why someone would want to patent a toy or game when they could copyright it…well, because copyright does not cover a process and often a new game is just that….a new game may have a new mechanical spinner, or a cup that automatically shakes the dice….these aspects of the game could be patented but not copyrighted…..however, the 2 dimensional art work on your game board could very well be copyrighted.

Perhaps if you were to provide some specifics…..it is a bit hard to relate all of this under the broad umbrella of “toys and games”….is it a mechanical toy? is it a board game?

To address your original post, “a patent may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter” -—don’t get caught up in the word “manufacture”……this is not saying that the manufacturer is responsible, this is saying that the OWNER of the patent must have a new and useful ARTICLE of manufacture, meaning it must be able to be made…..you cannot get a patent for a death ray laser if you can’t tell them how to make it…..

If your overall question is in reference to who has the responsibility to file, then that discussion also requires more details…..One of the great things about EN is that you can submit all sorts of concepts and ideas without worrying about the IP side of things, well other than doing your best to make sure it does not already exist…but they will do all of that heavy lifting for you if your idea is good enough…just come up with great ideas and submit them….if it needs a patent, they will do it….if it needs a copyright, they will handle it…get them to like it….that is your goal….do that and they will do their best to make sure the sponsor likes it…all you need here is bright ideas! Good Luck!

Ok, so, back to why I posted this topic in the first place. I’ve received lots of good info, but not the answer I was seeking. Visual Copyrights is what I mentioned, to which Luis Rodriguez replied “Thanks, Mr. Tree. I’ll check that link some other time. Seems interesting. Right now I’m very tired from a long drive.”. Criterion Dynamics responded “In the US, anything that can be protected by a copyright, cannot be protected by a patent. And vice verse.”. However, Criterion Dynamics – you are incorrect, because as previously stated, you can copy toys and games, under “Visual Copyright” – and we all know you can also patent toys and games. Would someone care to explain, then, why anyone would patent a toy or game, when they can just copyright it?

And since the URL I posted a while back is now a broken link, here is an updated URL from the official copyright.gov website:

copyright.gov/circs/circ40.pdf

Please go to it, and scroll to page 2. It will have a section titled “Works of the Visual Arts”. Read the small paragraph for the section, and notice how two of the categories are “Dolls, toys” and “Games, puzzles”.

Nobody has explained this to date, and it’s the sole purpose for me creating this entire thread. It’s as if I’ve quickly stumbled upon something that even the seasoned veterans of this forum seem to know nothing about (which bodes well for me, if it’s any sign of things to come).

Speaking of games…

Who wants to play “W”? I had a lot of fun preparing the thing. It may have become timeless if it had been launched while W was still in office. Or maybe not. Who knows. Nothing political about it. Just a joke.

http://www.themaxmask.com/resources/Wgame.pdf

Infringement does not have to be intentional. (Which BTW would be extremely difficult to ascertain, let alone proof). There have been many cases recently regarding music and songs where large sums of money have exchanged hands. First use establishes ownership. It is actually unlikely that anybody would infringe on purpose. That is a little less than clever. Any money that you make, you likely willl have to pay it to the legitimate creator of the work. Plus the embarrassment and discredit to your good name.

I think Patent law and Copyright law are completely independent of one another. Written to accomplish specific goals, without any consideration to the other. Oh, no wait a minute, let’s do this this way, because that is addressed by Copyrights. Nope. I don’t think it has ever happened.

“To infringe on a work of writing, the plagiarism does not have to be identical. "

This is true, but what what many people might not realize is that a work of art/writing/whatever can be identical to yours and not infringe. Copyright protects against copying, it doesn’t matter how similar someone else’s work is to yours, rather it matters whether that work came as a result of copying yours. In many cases similarity is seen as evidence that someone else’s work came about as a result of copying. However, where a work of, say, writing is little more than a statement of facts, it becomes hard to argue that someone else could not have likely created the same work without having copied yours. The rules of a game would generally be considered as facts.

It goes something to that extent, at least, I am not an attorney either and do not have all the technical definitions mastered.

Regarding copyright/patent law, there is general overlap however U.S. law is specifically crafted with the intent of both categories of law being as mutually exclusive as possible. Internationally, there has been well documented overlap in the past.

Soitanly. Agree to some extent. Specially about the ‘gray’ parts. There’s a lot of gray. (That Home Depot case is proof of it). And then, trademarks and copyrights may also get ‘intertwined’

Creativity is a very subjective term. The writing, if it was redacted by you, even with little or absolutely zero creativity is ‘copyright-able’. Yes, ‘creativity’ can simply be understood by you putting together the words. So that is the work you created. That is your property.

I don’t think Copyright and patent were ‘designed’ or ‘meant’ to be mutually exclusive. They simply are, ‘in general’. In ‘general’. I am sure that if you think or search long enough you will find overlapping examples.

The rules of a game, as written are copyrightable. You copyright the writing. It is a work of writing.

To infringe on a work of writing, the plagiarism does not have to be identical. Simply similar enough. Have the same essence, the ssame substance. It is going to be very hard to ‘rewrite’ the rules without infringing on the original writing, IMHO. Maybe if you write te rules as poetry with rhyme and everything. So technically it appears that copyright might indeed afford protection of the rules. This is only my opinion. And again, I am not an attorney or agent.

Then, as the ‘rules’ are what define the game, they can be protected by a patent (if novelty and other requirements are met)

Hey guys,

Some clarifications:

In the US, anything that can be protected by a copyright, cannot be protected by a patent. And vice versa. Copyright law does not protect designs when they are used as part of a functional product. Design patents do (when the designs are not related to the product’s function and are purely ornamental).

There may be exceptions internationally. And in the US there is still gray area I believe, i.e. there may be situations where copyrighted artwork is used as part of a product’s design. But generally, copyright law and patent law are meant to be mutually exclusive.

Trade Dress protects the same thing as design patents, for the most part. However, to establish trade dress protection you must be able to demonstrate that ‘relevant’ consumers have come to associate a design specifically with your company/brand. Design patents can be used as a tool to help you buy the time necessary to establish trade dress protection, since they can provide a deterrence to competitors who might market a similarly designed product.

The rules of a game, technically, can’t be copyrighted. Your particular rendition of those rules, if sufficiently creative, can be copyrighted. For someone to infringe, there needs to be evidence that they simply copied what you wrote, as opposed to simply writing the same rules themselves, using their own creativity if applicable. Copyright law doesn’t really do anything to actually protect the rules, though.

Copyright protection is often, technically, automatic – you don’t have to file anything or pay anything although it is recommended that you use the copyright symbol correctly. But registering a copyright is recommended where you feel that there is some chance that you will seek to enforce your copyright protection in the future. And filing/registering a copyright is quite affordable. On the flip side, patents can get expensive. So, be selective regarding the patent apps you file. And if you feel that you might benefit from copyright protection, just file….

Ha!

I did not find the original article (Boucher/DFG v. Home Depot) where DFG was reportedly awarded $6 million to be paid by Home Depot for Design Patent Infringement several years ago.

But I did find subsequent articles reporting reversal of verdict in favor of Apellant (Home Depot).

Fascinating! At times confusing and ambiguous but always fascinating!

Design Patents!… Copyrights!… Trade Dress!…. Utility Patents!.. Trademarks and more in the real IP drama you can’t misss!…

Decorations for Generations v. Home Depot USA, Inc.

http://docs.justia.com/cases/federal/appellate-...

Is it the end of it?

Thanks, Mr. Tree. I’ll check that link some other time. Seems interesting. Rigth now I’m very tired from a long drive.

Copyright is any unique expression of authorship. It is not limited to works of writing or visual arts. Music, movies, etc. are included. And I am sure there are other forms that we may not be aware of. I think if you come with a unique and particular pattern to produce a smoke show, you might be able to obtain copyright protection.

Trade dress may actually overlap with design patent. The Coca-Cola Bottle is obviously entitled to design patent protection. However, right now it is clearly not protected by a desigtn patent (If it ever was), as those expire after 14 years. So, trade dress is indeed in place protecting those curvy lines.

The Rolls Royce Grill is another example of trade dress that I have read about. I more recently read about a dispute between Hummer (Now made by GM) and Jeep (Now made by Chysler) about the radiator grill design. I think they settled somehow as they both originated from military vehicles ordered by the US government to Willis and Ford dring WWII.

I don’t think that you can in good logic prioritize or quantify the value of protection. It is unpredictable. I think you should Just go for as much as you can, or can afford. Copyright is cheap if you register it with the library of congress, it iis FREE if you don’t. You just claim it with the first use.

I’ve been trying unsuccessfully to retrieve an article I read many years ago (I think on Inventors Digest, before the EN times) about a 6 million dollar Home Depot had to pay an inventor for replicating his Christmas Tree stand DESIGN patent.

You just never know.

view.samurajdata.se/psview.php?id=c47400d4&page=2

View this link, and read the section “Works of the Visual Arts”. Copyright protects visual property – not just written property. And, notice how “Dolls, toys” and “Games, puzzles” are two of the categories. This is where the initial confusion arose, as trade dress regards outer visual themes, while design patent regards the design as applied to manufacturing processes. Visual Copyright protects the actual work of art, unto itself and abstracted from outer appearance or manufacturing properties.

The real question, is which issue should be dealt with first; which, and at what times, during the licensing procedures, of the issues should be dealt with. These challenges present huge walls for amateurs first entering this scene of industry.

Luis, I didn’t say don’t get patent protection. I said “most games in the toy industry are not patented because they expect the toy to have run its course before the patent would even issue” It also depends on if he is brin ing the product to market himself or looking to license. The licensing company may opt to pay for a patent or opt to go forward with the toy and let the Inventor decide whether they want to patent it or not.
As stated they have a year from the time it hit the market to decide what option works best for them, if it has not been publicy disclosed prior to hitting the market. I just want Inventors to know they have options that don’t require going into debt before they have a interested company.

Roger, I would not suggest to abstain from filing a utility patent applicfation feariung to be obsolete in just a couple of years. Juast file the application. If and when the market proves there’s no demand, just abandone the application. If you have a hit, and don’t have protection, you have just given it to com[etitors for free 1 year after you launched it.

And still, you may consider pursuing that patent. Original failure at the marketplace may be due to reasons beyond the merits of the game.

They are not mutually exclusive. You can and perhaps should do both. You can further do ‘Trademark’ protection. And even Trade Dress protection, and also Design Patent.

Think of the Rubik’s cube. I think this is protectable by all of the above.

The rules of a game or toy may be copyrighted, as it is a work of writing. Utility patent may be used, as it a device that fulfills a utilitary purpose (amusement), Design patent covers the appearance. Trade dress also covers the (distinctive) appearance , pressuming that somebody else may have a different embodiment, which is actually denied by both the utility patent and the design patent. And Rubik’s is the Trademark.

I am not an attorney or agent.

You will see the rules for various games copyrighted. That protects the game since without the rules of play they are useless. If you look most games in the toy industry are not patented because they expect the toy to have run its course before the patent would even issue. The toy industry is one that runs differently than a number of other industries.

Let me ask differently. As one who’s interested in toy making; why and when do people patent toys, rather than copyright toys?

It seems simple toys/games are copyrightable as Works of the Visual Arts. Yet more complex toys seem to be patented, e.g. when they have mechanical or electric components. I always read of toy copyrighting, as though the greater public is unaware some toys must be patented.