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Aug 25, 2021
Stacked Deck — A Claim For Copyright in a Magic: The Gathering Deck
An American professor has successfully obtained a U.S. copyright registration for a deck of Magic: The Gathering cards, entitled Angels and Demons.1 The copyright is not for the artistic design of the cards (which are designed and published by Wizards of the Coast), but instead for his selection of which cards go into his deck for playing Magic: The Gathering. Although the copyright has not been tested in court, a successful registration clears a significant hurdle and establishes a presumption of subsistence.
The copyright registration raises interesting legal questions regarding the scope and bounds of copyright for compilation works. While copyright for compilation works is not new, copyrighting a deck of cards has some unusual characteristics. First, since the deck is shuffled in a game, order does not matter. Second, a selection of cards is not used or exhibited as an artistic work, despite being a compilation of artistic works.
Magic: The Gathering Cards and Decks
Magic: The Gathering is a collectible trading card game. Each player uses a deck of (usually) 60 cards that provide spells and creatures for attacking and defeating their opponent. Although each deck usually only contains 60 cards, there are thousands of unique Magic: The Gathering cards. Players select the cards that will form their deck prior to playing the game. A deck may not contain more than 4 copies of a single card. While the list of cards available in the game is public, players must obtain copies of their desired cards for their deck either through drawing them through blind packs, trading for them with other players or purchasing the cards as “singles” through resellers.
During the game, players only have access to a few cards in their deck at any given time. The order that they draw a specific card from their deck is random. Different combinations of cards give rise to different strategies and create unique synergies. The number of possible combinations of legal decks from the thousands of available cards is almost endless.
The claim for copyright in a Magic: The Gathering deck arises as a “compilation work.” That is, since each card is a copyrightable artistic work, the selection of the cards together is also a copyrightable artistic work.
In Canada, the Copyright Act specifically defines “artistic work,” “dramatic work,” “literary work” and “musical work” to include compilations. A compilation is “a work resulting from the selection or arrangement of literary, dramatic, musical or artistic works or of parts there of.”
Typically, a compilation work is an anthology, journal, mixtape, newspaper, photo book or alike. In the compilation work, the individual works are presented and used in their original form (possibly subject to editing). Compilations may use individually copyrighted works, public domain works or combinations of the two. The key to a compilation is that it is not merely a selection of random works. Preparing a compilation work requires curation and the skills and judgment of an author in selecting and arranging the individual works into a compilation work.
Copyright for compilation works protects the selection and arrangement, which are the compiler’s original contributions, not the underlying works themselves. Compilations do not expand or weaken any copyright for the underlying works.2 The Courts have avoided creating distinctions between a work that stands alone compared with the same work in a compilation.3
The Supreme Court of Canada has found that an index of court cases is a copyright works, since it would take skill and judgment to decide which cases to include in the index and how they should be organized.4 Similarly, a compilation of a case judicial decision with its headnote is also protected by copyright.5 However, if preparation of a compilation would be a mere mechanical exercise, it would not be protected by copyright.6
A compilation of the complete piano works of Beethoven would likely not attract any copyright protection since there is no meaningful selection in simply selecting all of Beethoven’s works. In contrast, a compilation of “Beethoven’s 10 Saddest Piano Works” likely would receive copyright protection, since the compilation required a skilled person to review and consider Beethoven’s works and select the ten saddest works. By selecting fewer works, the case for copyright protection becomes stronger.
Similarly, a compilation of the best-selling Dr. Seuss books would be a selection merely based on objective sales data. Without more, this compilation likely would not attract any copyright protection.
The Case of Angels and Demons
The claimed copyright of Angels and Demons raises two intriguing issues over most compilations: the compilation is indifferent to order and, despite its claim as an artistic work, is never presented as one.
The copyright in a compilation arises out of the selection and arrangement of the underlying works. For example, in the case of a mixtape or DJ setlist, it is not merely what songs are selected, but what order they are played in. Even in cases where the compilation has a logical order (e.g. alphabetical or chronological), the selection may have been chosen with this natural order in mind. A Magic: The Gathering deck is identical regardless of the order of the cards in the deck, since they are shuffled for the purposes of using the deck. The copyright for this compilation must arise solely from its selection of works.
The copyright in the underlying Magic: The Gathering cards is as artistic works. Under the Copyright Act, a compilation of artistic works is an artistic work itself. Although the deck, if subject to copyright, would also be an artistic work, its character is markedly different. The deck does not behave like a photo book, as most compilations for artistic works do. Its author’s skill and judgment relate to strategy in a game rather than their visual artistic presentation. Realistically, there is no artistic merit in a compilation of Magic: The Gathering cards.
While there are other artistic works that have utilitarian value (e.g. maps, charts, technical drawings and architectural works), they are presented and used as visual works. The closest comparable types of copyrightable works to a deck would be a recipe, instruction manual or strategy guide. Unlike a deck, these are all literary works. The distinction is key: copyright in a recipe does not prevent someone from cooking the food, copyright in an instruction manual does not stop someone from performing the instructed task and copyright in a strategy guide does not stop someone from carrying out the strategy. The claimed copyright in Angels and Demons is not a written list of the cards, but instead the compilation of the artistic works of the cards. This means that assembling the deck with actual cards would infringe the asserted copyright in the deck.
The Impact of the Infringing Deck
While copyright would protect assembling or selling the deck, there is no clear ground for protection of use of the deck in a game. While there might potentially be liability for players who assemble the deck, there likely would not be liability for tournament hosts where players use infringing decks, assuming the hosts do not create copies of, exhibit or publish the deck themselves.
It would still be open for anyone to independently come up with the same deck.
As copyright protects any “substantial part” of a work, copyright in a deck would extend to variations that swapped out a few cards. The threshold of how many cards could be swapped out is unclear. The skill and judgment that leads to a protectable copyright work derives from the strategic value the deck has in the game. Even swapping out a few cards may fundamentally change how the deck is played, and therefore the variant deck would not use any of the protectable elements of the copyrighted deck.
The World of Angels and Demons
Angels and Demons sparks a discussion about not only whether Angels and Demons may be copyrighted, but whether every trading card game deck is subject to copyright. Registration of copyright merely acts as evidence of copyright’s subsistence that otherwise already existed upon creation. Authors do not need to provide notice that copyright is claimed. Perhaps all of the decks that players have created are subject to copyright.
Copyright in decks would represent a departure from how the competitive scene in trading card games has operated. Pokémon proudly posts popular decks used at its official trading card game tournaments.7 Many players operated on the basis that they could copy cards and strategies from other players’ decks and build on them. Copyright in a deck means that, upon seeing a deck in use, the player would be prohibited from copying and using that deck themselves. The more games a player watches, and the more decks they see, the fewer strategies they are allowed to try themselves.
In this emerging concept of copyright of decks, players would be wise to set their expectations when they publish their decks. Are they granting others permission to republish and use it themselves? Similarly, league and tournament hosts should make sure they set their expectations on reuse and publication of decks in their games.
1 US Copyright Registration No. TXu 2-262-767
2 Copyright Act, R.S.C. 1985, c. C-42, s. 2.1(2).