The Limited Copyright Protection for Playing Cards

• Author: Elana Greenway Faniel
• Pages: 14-62

Published in Landslide® magazine, Volume 13, Number 3, a publication of the ABA Section of Intellectual Property Law (ABA-IPL), ©2020 by the American Bar Association. Reproduced with permission. All rights reserved.

This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

14 LANDSLIDE n January/February 2021

L

earning how to play the card game of Spades is a rite of passage. At barbecues

and family functions, a Spades game was always afoot. To be clear, one could

not simply join a game of Spades if one did not know how to play. You had to

learn and practice on your own, and then showcase your skills during a legiti-

mate game. My Spades-playing skills are below average, so I rarely volunteer to

be someone’s Spades partner. I prefer to spectate so as to spare myself from any

undue embarrassment. I also prefer to play Blackjack and Solitaire. Interestingly,

in the United Kingdom, the game of Solitaire is referred to as “Patience.”1 The

name suits the game, as I am sure I have built much patience while

playing against chance—and myself.

Playing card games is a pastime spanning a few millennia. According to many

historians, the concept of playing cards originated in China during the Tang

dynasty around the ninth century A.D.2 The Chinese called their playing

cards “leaves,” which were actually pieces of paper with gures and symbols

written on them.3 It is not clear how playing cards arrived in Europe. One

prevailing theory was that the Chinese “leaves” arrived in Europe around the

thirteenth century by way of the famous Venetian explorer, Marco Polo.4 That

theory has since been discredited. Others believe that the Europeans were

introduced to playing card games by trading with Arabs in Egypt.5 The Mam-

eluke Egyptians developed a playing card deck dating back to the twelfth or

thirteenth century that consisted of 52 cards.6 The four suits of the Mameluke

cards were coins, cups, swords, and sticks.7

By Elana Greenway Faniel

The Limited

Copyright

Protection for

Playing Cards

Published in Landslide® magazine, Volume 13, Number 3, a publication of the ABA Section of Intellectual Property Law (ABA-IPL), ©2020 by the American Bar Association. Reproduced with permission. All rights reserved.

This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

January/February 2021 n LANDSLIDE 15

Elana Greenway Faniel is an attorney at Greenway Law Firm P.A.

in Tampa, Florida, where she focuses her practice on trademark

and copyright registration, enforcement, and litigation. She can be

reached at elana@greenwayrm.com.

Image: GettyImages

Published in Landslide® magazine, Volume 13, Number 3, a publication of the ABA Section of Intellectual Property Law (ABA-IPL), ©2020 by the American Bar Association. Reproduced with permission. All rights reserved.

This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

The Standard Card

According to the International Playing-Card Society, the

French-suited cards, or those cards with suits that derived

from France, are referred to as “standard cards.”8 Our

modern-day card deck originated from French-suited cards.

Standard cards are typically used to play card games. The

suits of a standard French card deck are spades, hearts, clubs,

and diamonds. The suit symbols are called “pips.” Each stan-

dard playing card in a deck has a “face” and a “back” and

are identical in size and shape.9 The faces of the cards dis-

tinguish one card from another. Each card deck is classied

by suit, and each suit is represented by a name and symbol.

Generally, there are the same number of cards in each suit.

The cards within each suit are further classied by their rank,

which in a standard deck ranges from ace to king. Every suit

contains one of each rank. Many decks also include joker

cards. However, the joker is an American invention.10 It is a

wild card, or an especially powerful card that may be used to

give a player an upper hand during a card game. The face of

the joker card typically depicts a jester or juggler.

The Spread and Regulation of Playing Cards

Originally, the faces of playing cards were incredibly unique, as

they were hand-painted.11 Consequently, buying a card deck was

an investment in a luxury product.12 Many cards donned beautiful

paintings of legendary kings and rulers, such as King David and

Alexander the Great.13 Nevertheless, in the fteenth century, when

card manufacturers began using wood-block printing methods to

produce decks of cards, the cost to produce a deck decreased sig-

nicantly.14 The designs of the cards were simplied, and card

decks became more accessible to the general public.15

Accessibility fostered the popularity of playing cards in medi-

eval Europe, as people from every background and class now

played.16 As the popularity of playing cards grew, so did the

proliferation of new game variations. The occurrence of deck

forgeries and distortions of original card face designs increased.17

As copying became a legitimate problem, the English

government monopolized card manufacturing and made forg-

ery punishable by ne or imprisonment.18 The English also

taxed card manufacturers, requiring those who paid the tax to

afx an elaborate tax authorization stamp on one card of the

deck—the ace of spades.19 In the United States, the Consti-

tution gave the federal government power “[t]o promote the

progress of science and useful arts,”20 as well as the power to

regulate interstate commerce.21 Based on those powers, the

U.S. government enacted intellectual property laws to pro-

tect: (1) inventions, with patents; (2) works of authorship,

with copyrights; and (3) logos and slogans, with trademarks.

U.S. Copyright Protection

U.S. copyright law protects original works of authorship,

including literary, musical, dramatic, pictorial, graphic, and

sculptural works xed in any tangible medium of expres-

sion.22 The copyright owner of a literary, pictorial, graphic, or

sculptural work has the following exclusive rights:

1. to reproduce the copyrighted work in copies;

2. to prepare derivative works based upon the copyrighted

work;

3. to distribute copies of the copyrighted work to the

public;

4. to perform the copyrighted work publicly; and

5. to display the copyrighted work publicly.23

However, “[i]n 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.”24

The U.S. Copyright Ofce provides further guidance

regarding the scope of copyright protection of games, such

as those played with playing cards. The idea for a game,

or the method of playing it, is not protectable by copyright

law. “Copyright protects only the particular manner of an

author’s expression in literary, artistic, or musical form.”25

Accordingly, only expressive elements of a card game are

protectable. For example, if the game includes written rules

describing how to play the game, those instructions may be

protectable as a literary work. Any graphic artwork, such as

designs on the face of the cards, may be protectable as works

of visual art. However, whether the work is instructions or a

graphic design, the level of copyright protection afforded to

playing cards and playing card games is limited.

Protection of Card Game Instructions

To prove a claim of copyright infringement, a plaintiff must

establish: (1) ownership of a valid copyright, and (2) imper-

missible copying of the original elements of the work.26 To

determine whether infringement of a card game has occurred, a

court must rst distill the protectable elements from the game.

One doctrine often applied to the idea-expression dichot-

omy is the merger doctrine. The merger doctrine stems from

§ 102(b) of the Copyright Act,27 and provides that if the idea

underlying the work can only be expressed in one way, the

work is not protectable.28 This principle is applied when it

is difcult to distinguish the idea from the expression, and

when granting protection for the indistinguishable expression

would in turn grant the author a monopoly on the idea.29 A

court considering the application of the merger doctrine must:

(1) “identify the idea that the work expresses,” and (2) “then

attempt to distinguish that idea from the author’s expression

of it.”30 If the court can distinguish the idea from its expres-

sion, then the expression is protected. The outcome of this

analysis weighs heavily on how the court denes the idea.31

Another approach used by the courts is the abstractions

test. The abstractions test species that abstract ideas, pat-

terns, or themes must be separated from the substance, or

protected elements of the work.32

Finally, courts have also utilized the “scènes à faire” test.

Scènes à faire are “incidents, characters or settings which are

as a practical matter indispensable, or at least standard, in the

treatment of a given topic.”33 Scènes à faire are not protectable

by copyright.34 Under the scènes à faire test, if the common

idea can only be expressed in a stereotyped form, or by scènes

à faire “stock literary devices,” any similarity to such expres-

sion does not amount to actionable infringement.35

Each of these approaches, and even a combination of the

three, have been applied to games. The Ninth Circuit noted