For the First Time Ever, a Magic: The Gathering Deck has been Copyrighted

Ever since the rise of the internet, “netdecking” has been a large part of Magic: The Gathering. The practice, which has been controversial among players since its inception, involves finding decklists that have been published by others online and constructing the deck yourself.

In fact, “netdecking” is a large part of what we do here at MTG Arena Zone – publishing or re-sharing decks for players online to view and use in whatever way they like, be it to draw inspiration from, adapt, or copy the decks card for card. The concept of sharing decks online is a core element of the game to the extent that both of the current digital versions of the game, MTG Arena and MTGO, have import and export tools built directly into the client.

Few would question that the publishing and sharing of decklists is an important part of the community. It is in fact necessary to some extent for the discussion of the game- our deck guides, for example, could not exist on the same level without an example being provided. Some players, however, feel disdain towards those who copy a deck without making any changes and play it as their own.

Regardless of what one’s personal feelings about netdecking are, there is little debate that the free exchange of information regarding Magic decks and archetypes is critical for the health of the game and its following. Even players who want to play decks entirely of their own design are best served to learn about and even play examples of the format’s most popular archetypes to better inform their deckbuilding choices.

Now, the very idea of who “owns” a decklist, and who has the right to use it, has been called into question. An associate professor of physics by the name of Robert Hovden has successfully obtained a copyright for a Magic: The Gathering deck which he created and calls “Angels and Demons.” Twitter user and author Cory Doctorow has written a very informative piece about the copyright which can be viewed on his website pluralistic.net.

For those who are interested in the legal details of the case, Doctorow’s article breaks down the core principles, with references for how one can learn more about relevant copyright case law. Read on for a brief rundown on the main issues.

What exactly does this copyright mean, and what effect will it have on average players? Hovden, the copyright holder, has a history of filing copyrights that are specifically intended to point out the flaws of the copyright system (more on that in Doctorow’s article above). The “Angels and Demons” deck that has received the copyright appears to be a highly casual deck- at least in the sense that it contains cards only legal in the vintage format, but also includes cards that are nowhere near the power level of competitive vintage decks.

Therefore, it’s probably safe to assume that comments made by Hovden hinting at the idea that he may try to prohibit others from playing his deck in tournaments can be interpreted as tongue-in-cheek. The fact that a single, obscure deck has been copyrighted will not have much of an impact on anyone for now, but Hovden appears to be asking us to consider the potential implications of copyrighted decks in Magic or other similar games.

So if this particular copyrighted deck is not really a concern, what impact will this actually have? While it seems as though Hovden has no intentions to ever enforce his copyright, it’s possible that this event could potentially have more serious implications. Now that obtaining a copyright for a Magic deck has been shown to be possible, the door has been opened for others who might rush to copyright more decks that are actually relevant.

For example, what would happen if a deck were to be copyrighted that is a major archetype in competitive Standard tournaments? How different would a deck have to be in order to avoid a copyright violation? Would swapping one or two cards be enough, or would the deck have to be changed in a more meaningful way? There is no clear answer as of now. Copyright holders could also attempt to control their work in other ways, such as barring the publishing of their deck on websites or social media, including Twitch where many streamers have already run into copyright issues.

It’s also possible that non-fungible tokens, or NFTs, could be used to represent copyrighted Magic decks. An NFT is essentially a digital certificate that can be used to represent a wide variety of objects- most commonly art or video clips that can easily be shared online. There can only be one NFT for a given item, so once an NFT is created, its holder is the sole owner of that item. NFTs can be bought and sold online similar to cryptocurrencies like Bitcoin, and they can be used to set up royalty payments to the holder whenever the object is used. If Magic creators begin to copyright and guard their decks as personal intellectual property, creating NFTs for the decks could potentially be a way to control and monetize them more easily.

For now, Hovden’s less-than-serious copyright is probably not going to have an impact on Magic players at all, but it does raise some serious questions about what would happen if somebody were to obtain a similar copyright with the intent to enforce it. Before the copyright would become a legal issue, Hovden or a potential future copyright holder would have to make a claim against a player using their protected deck. At that point, the matter would be decided by the US court system. Doctorow’s article includes discussion of what past precedent tells us about how the courts might handle this decision, and his write-up is highly recommended for those who would like to know more.

Regardless of whether or not legal action is ever taken in defense of a copyrighted deck, the vast majority of the playerbase will be unaffected. Even in the scenario where there is a mad rush to copyright more decks, while it could become a thorn in the side of tournament players and content creators, it’s highly unlikely that casual players would ever have action taken against them. For now, Hovden’s copyrighted deck is simply a thought experiment, and hopefully, it will stay that way.

Paul

Dude from Vermont who likes to play Magic and Escape from Tarkov. Musician, writer, and gamer. Submit feedback or corrections to @Paul on the Discord.

27 Responses

  1. Karen Ockey says:

    MTG is owned by Wizards of the Coast, don’t know how he got around that point, but no deck should be copyrighted as everyone could own the card(s). This is not right and WotC and MTG needs to step in and cover this loop hole in their user agreement.

    • John says:

      So i take it you are one of the ones who steal others decks as your own

      • Dan says:

        Ridiculous claim.

        You act as if no one can come up with similar deck ideas without having seen them on the internet, which indicates both your lack of creativity and your need to netdeck yourself.

      • JoeyB says:

        How this copyright even works, I’m sure is due to flaw. Imagine thinking you own a COD loadout or a team in a sports game…

        Then imagine thinking if another player copies it.. That you should have a right to legally challenge them.. Remeber, all over something none of us even own any licenses to..

        Ridiculous?… Yeah. That’s how you look everytime you spread that bs. If you’re gonna call people out for copying, then just say that.

        This sole case is the closest any opinion similar to yours has ever been to being truthful… And it’s still filled with holes.

        • R0AHN says:

          It doesn’t work and would be easily thrown out of court. This is someone trying to copyright a list of cards. The closest comparison you might make is someone trying to copyright a playlist of songs. A song yes – that is a protectable creative expression – but a list of songs? And what orders they could be potentially played in? No.

          Sure, you can file a copyright with eCO (it’s really not that hard to do) and they’ll take your money. I do have to wonder what category they filed it under. I can think of only one lawyer (Liebowitz) who might be dumb enough to try and enforce a copyright on a decklist.

          Overall it seems neither the person trying to copyright nor the author of the article have a baseline knowledge of how copyrights functionally work. This really isn’t concerning.

      • ZY says:

        Isn’t that like… Anyone who’s actually serious about the game?

    • Mike says:

      Correct. Just like I could buy the same 5 as you and enter a cool car contest too. So what . It’s not an idea it’s owning something

  2. gdv asc says:

    It looks as though he copyrighted the layout and compilation. Not the decklist. It’s a little pedantic but think of it like a recipe and/or recipe book. As the law is written “Copyright law does not protect recipes that are mere listings of ingredients. Nor does it protect other mere listings of ingredients such as those found in formulas, compounds, or prescriptions. ”

    However, what it does protect is recipe books, for example how you might layout the list of ingredients along with some photo of the ingredients laid out on the table around the finished product. Given how the certificate is granted to “compilation of playing cards” and includes the photo presumably he included. My guess is the copyright office gave a certificate of copyright more closer to the recipe book analogy. Presumably, a decklist would fall under the ‘formula’ and/or ‘ingredient list’ much how your own website someone could not take the literal page where you posted a decklist and copy it as the elements around the decklists are copyrighted, but the decklists themselves are not.

    Again, this is not the area of law that I consider myself an expert in, but I have researched it in the past and asked a colleague who is and we both agree that this is probably the most likely scenario.

    • gdv asc says:

      Also meant to add: Most recently the Supreme Court struck down copyright where someone did exactly the ‘compilation’ loophole and said they were merely compiling a list of things found elsewhere. SCOTUS said that’s not copyrightable. Yes, he got past one copyright person at the patent office for a magic decklist, but I doubt this opens a floodgate, especially if challenged.

    • Jason C says:

      Not a law pro either, but coming from the electronics sphere, this sounds similar to how schematic diagrams work. A schematic drawing itself can be copyrighted but not the circuit that drawing describes. (Those can be patented, but it’s not so easy, at least in my field of music device circuitry.)

      This is, of course why so many clones of old instruments exist in the market, including a couple of the devicesi manufacture. All completely legal.

  3. Jared says:

    Im not a lawyer either, but these “ingredients” are not as readily available as say a tomato. They are only “farmed” by one company and owned by that same company. Personally my bet would be that this copywright wouldn’t be actually defendable in court. But thats just an uneducated guess.

    • Paul says:

      I agree for what it’s worth.

    • gdv asc says:

      Neither would many “ingredients” found in ‘formulas, compounds, or prescriptions,’ the recipe hypothetical was just that, a hypothetical to show how copyright doesn’t cover a mere list of things. Otherwise someone could say a pair of aces is copyrighted, and no one could ever write about the game of poker again and include ‘a pair of aces.’ However, Hoyle and Bee along with any other manufacturer of playing cards can copyright the cards themselves, copyright a book on how to play a game using their cards, but cannot copyright a mere list of the cards.

      The law basically says this “When an idea is so restrictive that it necessarily requires a particular form of expression, that is, when the idea and its expression are functionally inseparable, to permit the copyrighting of the expression would be to grant the copyright owner a monopoly of the idea.”

      If I wanted to tell you how to play Spades, telling you what cards are required, how many are dealt, etc. there is no other way to describe the game of Spades, copyright law would say there is no way to separate expression from idea so you cannot copyright it. However, if I wrote a ‘Spades for Dummies’ book and included snippets of player stories, humor or some other form of expression along with the idea of play Spades, then that would be copyrightable. Replace how to play Spades with just about anything imaginable and you get the idea.

      The same is true for a ‘decklist.’ There is no way to separate the idea of playing the 60 card deck (or however many cards the deck is). You can copyright how you deliver the idea (e.g. a humorous book/blog, etc.) but fundamentally there is no other way to intimate that you need those exact cards for said deck. Just like you cannot copyright a list of what is needed to build a house or things such as ‘formulas, compounds, or prescriptions.’

      Here is straight from the copyright office that really nails it: “An author writes a book explaining a new system for food processing. The copyright in the book prevents others from copying or distributing the text and illustrations describing the author’s system as expressed in the book, but it does not give the author the right to prevent others from employing the system or from using any procedures, processes, or methods described in the book.”

      It seems counterintuitive to what you think about copyright, but there is no other way to explain the food processing method and procedures, so you can only copyright the text and illustrations describing them but not how its done (the methods or procedures).

  4. MacGraeme says:

    Patents and copyrights are not the same thing and not interchangeable. You may want to figure out which word is applicable and use only that.

  5. Rob says:

    Keep in mind a patent also costs about 10k to obtain so the average person isn’t going to do it. My guess is this is a setup to close the possibility of this in the future

  6. Chrysologus says:

    A unique string of words can be copyrighted. For example you could write a few sentences of whatever and then copyright them. In fact, people do this all the time, though who knows why since you have to pay a $60 application fee. In theory, the person now owns those words in that order, so if you copied out their decklist in its entirety and put it on the internet you would be violating their copyright and (in theory) they could sue you to have it taken down. However, this would in no way stop you from making a deck of those cards and playing it.

  7. Dirac says:

    The copyright only protects the published deck list. It would not prevent a player from playing the deck, only from publishing a the same list of cards as a deck.

  8. Hambrgr says:

    I’m sure someone has thought of this before.

  9. BFL says:

    First of all, copyright is automatic. What Hovden has done is obtained a certificate of registration from the US Copyright Office. That doesn’t grant copyright per se. It just helps someone who wants to enforce their copyright if they take legal action, as they can use the certificate to prove they own the copyright.

    If copyright is available in a decklist, every deck you publish here on mtgazone is copyrighted, as are the articles themselves. Whether you enforce that is up to you.

    Secondly, copyright only protects the expression of ideas and the reproduction (copying) of that expression, not the idea itself. So you couldn’t prevent someone playing a deck with the copyrighted composition, any more than you could stop someone cooking a recipe based on a copyrighted recipe. All the copyright does is prevent you reproducing the written plan (decklist/recipe etc.) in the way it is expressed.

    Thirdly, as other posters have pointed out, mere ‘lists of information’ such as a recipe, or a TV schedule, do not qualify for copyright protection. There needs to be some sort of threshold of creativity in the expression. It is doubtful that a list of cards that comprise a deck could qualify for copyright, as it is factual, not expressive.

    So all in all, an academic exercise. It seems highly unlikely that anyone could prevent others playing their deck by copyrighting the decklist.

  10. Robert Vroman says:

    Eliminate all copyrights.

  11. Christopher K. Collins says:

    I know this much I recognize those cards and those cards were expensive as hell and hard to get not the Serra Angel…

    I got to tell you back in the day when magic wasn’t so popular and it was all just cars in your hand it can have a significant effect on you to create something that beautiful. And expensive so I can see the allure of being like this deck was unbeatable in its time. It’s not like anybody’s going to go back and say you were the late ’80s Lakers. As far as the debate on whether to copyright or not I am not opinionated. However if somebody remade my day some of my most proud creations and acted like they were super original!!! It’d be a hair up my ass possibly for life.

  12. S says:

    This would be the same thing as if you took a collage of someone else’s work and then copyrighted it as a compilation of your own works.

    This wouldn’t hold up in court and could honestly fall under fraud.