You wouldn’t think that there was much protectable intellectual property in the classic “Hangman” word game. In Hangman, as you probably know, one player thinks of a word or phrase and the second player tries to figure out what it is. The word or phrase is initially represented by a fixed number of dashes, which comprise the number of letters that it contains.
The wildly successful TV show Wheel of Fortune is based on the Hangman game. If you’re interested in more details about how to play the game, as much (or even more) than you are in reading about the intellectual property issues please see http://en.wikipedia.org/wiki/Hangman_(game).
Earlier this month, the federal court in the Southern District of New York was asked to consider if a series of books published by a US publisher, Andrews McMeel Publishing, violated the copyright, trade dress, and unfair competition rights of Australian publisher Michael Ward, who does business as Brainteaser Publications.
Brainteaser has been publishing the “Scratch & Solve Hangman” books for approximately 20 years. Andrews McMeel has been publishing its Pocket Posh Hangman series for about 5 years.
In deciding a motion to dismiss the case, Judge Paul A. Crotty found some originality in both series of books. Obviously, the game of Hangman itself is not protected by copyright or other intellectual property rights. Further, he found that the scratch off-lettering feature and mere answers to the puzzles aren’t protected.
Judge Crotty found, however, that Brainteaser’s hangman illustrations, even though they are pretty simple, are protected under copyright. Further he left to the jury the question of “Whether the illustrations or total concept and overall feel” of the Pocket Posh books are “substantially similar” to those of the of the Scratch & Solve Hangman books.
The takeaway is clear: Even old public domain properties, such as games, books, and music, can be supplemented with new and protectable elements. Every old can be somewhat new again. For the final outcome of the case, ___ _____?
In February 2015, our colleague and friend, partner Mark Fischer, passed away. We have made his blog posts available in honor of both his nuanced and wide-ranging knowledge of intellectual property, new media and entertainment law and of his entertaining style. Please read our tribute to Mark in the firm’s Alumni Spotlight publication and his obituary in the Boston Globe.