BJ Ard, Response, Hybrid Innovation Regimes on The Interplay of IP and Non-IP Protections, 109 Iowa L. Rev. Online 148 (2024).
Abstract
ABSTRACT: Intellectual Property and Tabletop Games by Christopher Seaman and Thuan Tran develops the tabletop game industry into a case study that challenges the usual approach to studying the creative industries. They identify dynamics that help us see that the conventional binary between “full-IP” and “negative-space” industries is too rigid. Advancing their observations, I argue it is more productive to understand creative industries as “hybrid innovation regimes” that combine IP and non-IP protections.
There is room, however, to dispute whether board gaming strikes the optimal balance of IP protections and limitations. Seaman and Tran conclude it does, pointing to total industry revenues and the ongoing proliferation of new games. But this does not entirely answer the question, which requires us to identify our criteria for success, to consider how greater or lesser IP coverage would impact those criteria, and to account for how results may vary over time and among different sectors within the industry.
The breakdown of industry revenues also raises further questions. Four games claim two thirds of the industry’s entire yearly revenue (Monopoly foremost among them, followed by Scrabble, chess, and ludo). These figures establish that the lion’s share of industry revenues go to established incumbents rather than the innovators at the forefront of the board gaming “golden age.” It also adds wrinkles to the story of competition without IP as we consider how the makers of games like chess and ludo can claim a spot among the top-selling board games with practically no IP, and how Monopoly succeeds by leveraging its trademark rights even though it lacks formal rights to stop others from duplicating the game itself.
