Links: DaVinci's BANG! Lawsuit Shot Down, Gender in Munchkin & Mark Rosewater on Twenty Years of Magic

Unlike a book or movie plot, the rules and procedures, including the winning conditions, that make up a card-game system of play do not themselves produce the artistic or literary content that is the hallmark of protectable expression. See Boyden, 18 GEO. MASON L. REV. at 466. Instead, the game rules, procedures, and winning conditions create the environment for expression. Id.; see also Nat'l Basketball Ass'n, 105 F.3d at 846 ("Unlike movies, plays, television programs, or operas, athletic events are competitive and have no underlying script.").

This general rule is consistent with the decision in Baker v. Selden, 101 U.S. 99 (1879), in which the Supreme Court ruled that a particular bookkeeping system was not copyrightable. The language and illustrations that the plaintiff had used to explain his system were copyrightable, but they did not protect the system itself from use by other parties. The Copyright Office has applied the rule that copyright does not protect a system's operation method to games. The December 2011 fact sheet for Copyright Registration of Games states:

In Bang!, the Sheriff and Deputies are pitted against the Outlaws and the Renegade. Other than these alignments, the events in a Bang! game are not predetermined because the interactions between the roles have no underlying script or detail and are not fixed. Making certain roles aligned and others opposed is part of the game's winning conditions, but these determine little about how players will progress through the game. See Boyden, 18 GEO. MASON L. REV. at 466 (copyright does not protect systems that set the stage for expression to occur). Like basketball, Bang! has created a number of roles, defined their alignment with and opposition to other roles, and created rules for their interaction, but has not created a scripted or detailed performance for each game. Using Spry Fox's example of Gone with the Wind, Bang! identifies characters analogous to Scarlett O'Hara's two romantic interests, Ashley Wilkes and Rhett Butler, giving them names and appearances consistent with their setting. Unlike Gone with the Wind, however, Bang! has no specific plot or detailed information about the characters that tells us what these characters will do or how they will interact with other characters.

The character content found protectable in Capcom is distinguishable from the character content in Bang! The Bang! characters' abilities are largely drawn from stock-character abilities. Like a punch or kick in a karate game, Bang! characters' abilities are common in games in which the object is to kill the other players, such as enhanced attack ranges and strength. These abilities are neither original to DaVinci nor as imaginative as the moves found protectable in Capcom. The other similar characteristic between Bang! and LOTK is the characters' life points. The court in Capcom specifically held measures of player viability to be commonplace and not protectable, and this court agrees.

Even if the Bang! characters' abilities were not stock, they are still not expressive because they are essentially rules of game play. The character of Rose Doolan, for example, has the ability to strike opponents from a longer distance than other characters. (Docket Entry No. 61, Ex. 6 at 110:6-10). This ability is no more expressive than the ability of a rook in a chess game to take an opposing piece from all the way across the board, as opposed to a pawn that may attack only from the next square. The rook's ability affects other characters or roles in the game because the attack range increases the queen's and king's exposure. But this special ability is neither literary nor artistic. It is an aspect of game play, a subset of the rules that make up the game system.

DaVinci argues that because each Bang! player is assigned a character and a role, the alignment of the roles combines with the expressive elements of the characters to create protectable expressive content. This argument fails because any character can be assigned to any role. In one game, Rose Doolan could be the Sheriff who works with one of the Deputies, Slab the Killer, to kill the Outlaws and Renegade. In the next game, Rose Doolan may be the Outlaw who must kill Slab the Killer, who is the Sheriff in that game. The characters' interactions change from game to game. See Nat'l Basketball Ass'n, 105 F.3d at 846 (basketball is not protected because the action is not "scripted"); Boyden,18 GEO. MASON L. REV. at 466 (copyright does not protect systems that set the stage for expression to occur). The combination of roles and characters also adds little to the overall expressive content of the game, given that the content of the game itself is not fixed. It is the equivalent of casting actors to roles in a movie that has no detailed script, no specific plot, and no detailed information about the characters.

Gender is a specific mechanic in most Munchkin games. Some treasures are better or worse (or completely unusable) depending on your gender, and some monsters get bonuses or penalties when fighting a character of a specific gender. The Munchkin rules say that gender is dual; a character is either male or female, no other options (with a very few cards that cause exceptions, often by removing a character's gender altogether). Starting in the very first Munchkin game in 2001, changing gender resulted in a one-time combat penalty "due to distraction." This idea comes from early fantasy roleplaying games, many of which had effects that would involuntarily and permanently change a character's gender. Munchkin was originally designed as a parody of D&D and similar games, and this was one of the tropes that was brought over for the sake of that parody.

It's not 2001 anymore, and we now have thousands of people who play Munchkin and have never seen games such as D&D, much less explored the history of those games. We occasionally get social media comments, emails, and even physical letters taking us to task for belittling transgender players. Some of them are heartbreaking.

Speaking on behalf of the entire Munchkin team, it is not and never has been our intent to poke fun at the struggles faced by people who don't match society's gender norms. It has always been our view that the penalty for changing gender in Munchkin derived from its involuntary nature, not the gender change itself, and we have encouraged people to remove the penalty  —  or the entire effect  —  if their group found it problematic.