107 Iowa L. Rev. 1615 (2022)

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Abstract

There is a rich body of literature regarding intellectual property’s (“IP”) “negative spaces”—fields where creation and innovation thrive without significant formal protection from IP law. Scholars have written about innovation in diverse fields despite weak or nonexistent IP rights, such as fashion design, fine cuisine, stand-up comedy, magic tricks, tattoos, and sports plays. Instead, these fields rely on social norms, first-mover advantage, and other (non-IP) legal regimes to promote innovation in the absence of IP protection.

As a comparison to these studies, this Article comprehensively analyzes the role of IP law in facilitating innovation in tabletop gaming, including board games, card games, and pen-and-paper role-playing games. Over the past several decades, the tabletop gaming industry has seen a proliferation of innovation, but there is surprisingly little in the academic literature about IP and tabletop games. IP rights, including patents, copyrights, and trademarks, each protect certain aspects of games, while at the same time being constrained by doctrinal limitations that leave considerable flexibility for others to develop their own games and adapt or improve upon existing ones. There are also numerous examples of user-based innovation in tabletop gaming. This Article concludes by contending that IP rights, as well as their limitations, play a significant role in facilitating the robust innovation presently occurring in the tabletop gaming field.