Games Are Not Coffee Mugs: Games and the Right of Publicity

By Ford, William K.; Liebler, Raizel | Santa Clara Computer & High Technology Law Journal, November 2012 | Go to article overview

Games Are Not Coffee Mugs: Games and the Right of Publicity


Ford, William K., Liebler, Raizel, Santa Clara Computer & High Technology Law Journal


While there are variations, traditional board wargames are characterized by the use of maps overlaid with hexagons, numerous cardboard counter playing pieces, assorted charts, and complex rules. (312) They are designed to represent actual or fictional battles or wars, with combat resolved through dice rolls and combat results tables. (313) Tactics II includes an instruction book with sixteen pages of rules (some optional), a 28 by 22 inch mapboard (with squares rather than hexes), and 88 counters total (44 for each side). (314) At the other end of the spectrum, War in the Pacific includes an 88 page rulebook, seven 22 by 34 inch strategic maps, several tactical maps, and approximately 9000 counters. (315) Playing times for these games are often longer than typical mass-market games. (316) Some games that are closely related to traditional wargames depart from the standard formula in various ways, such as dropping the hex grid, (317) substituting generic plastic pieces for the more detailed cardboard counters, (318) or departing from the emphasis on combat between military units. (319) Wargames can have any sort of theme, whether tied to hypothetical events, (320) science fiction, (321) fantasy, (322) horror, (323) or other genres, but the largest category of wargames is based on historical events.

Avalon Hill's sales were good in the early 1960s. (324) The company received good publicity from a variety of media sources, including Life (325) and Playboy. (326) Some of its games appeared in mass market stores (327) and catalogs. (328) But Avalon Hill was still nurturing a hobby in its infancy. From 1967 to 1969, it published only one new wargame title per year. (329) Things changed in the 1970s.

For years, Avalon Hill faced little competition, (330) but in 1969 James Dunnigan founded a competing wargame publisher, Simulations Publications, Inc. (SPI). (331) With Avalon Hill and SPI leading the way, many smaller companies entered the market. Figure 1 illustrates the growth in wargame publishing from 1958 to 2008 using data from four different sources. These sources show that hobby wargaming established itself after the courts decided the three classic right of publicity game cases. (332) And while it is a small industry, (333) they show that it is prolific for its size. The total number of published wargames is in the thousands. Wargaming is not a footnote to what should really be a discussion of Monopoly and other childhood games. (334)

[FIGURE 1 OMITTED] (335)

2. Role-Playing Games

While the 1970s saw the maturation of commercial wargames, it also saw the creation of tabletop role-playing games. Role-playing games debuted in 1974 with the publication of Gary Gygax's and Dave Arneson's Dungeons & Dragons (D&D), the game that created the commercial role-playing game industry. (336) Richard Garfield, the creator of the first collectable card game, Magic: The Gathering, claims it is "not a stretch to call D&D the most innovative game ever." (337) D&D in its various forms, including Advanced Dungeons & Dragons (AD&D), was also among the most controversial games of all time due to its supernatural content. D&D products were accused of promoting the occult and even causing suicides, torture, rape, and murder. (338) D&D of course survived, as did the role-playing genre it created.

D&D grew out of miniature wargaming, (339) but it departed from traditional miniature wargames in several important ways. In D&D, players control individual characters rather than entire units. D&D also emphasizes a narrative that goes beyond a battle or even a sequence of battles. While solo play is possible in D&D and other role-playing games, (340) multiple players ordinarily work together cooperatively. A referee or judge, called a "dungeon master" in D&D and a "game master" in many other role-playing games, describes the environment and controls the enemy characters.

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