Chess and Copyright

by Bill Wall

Copyright protection of chess moves has been

around for over 100 years. In 1886, William
Steinitz insisted on negotiating his chess games
before agreeing to his world championship
match with Johannes Zukertort.

In 1909, Emanuel Lasker and Frank Marshall,

before their world championship match, jointly
published an agreement that "ownership of the
[score sheets] of the games shall be vested
equally in the two principals."
Bill Wall
The U.S. Copyright Act of 1976 protects
original works of authorship fixed in any
tangible medium of expression. Therefore, in
order for the moves of a chess game to be
copyrightable, the chess moves must be
original, a work of authorship, and fixed. In chess, just as in life,
today's bliss may be
Chess games without annotations cannot be tomorrow's poison. —
copyrighted. Assiac
Objective facts are not eligible for copyright
protection. The actual moves made during a
game are facts, and facts cannot be
copyrighted.

The nature of chess games as a series of

discovered facts fails to meet the originality
requirement of copyright legislation.
Nevertheless, a minimally creative presentation
of a compilation of chess games in a training
manual or puzzle book may be eligible for the
protection. In limited circumstances, chess
games can be the subject matter of
confidentiality agreements. (source:
"Intellectual property issues in chess games,"
Journal of Intellectual Property Law & Practice,
Vol. 6, Issue 19, Oct 2011, pp 723-727)
Artistic expression and creative work — such
as a game annotation — is eligible for
copyright protection.

Annotations, problem compositions, and a

constructed game by a single author can be
copyrighted.

A chess game with annotations would have to

be copyrighted and the work would have to be
registered. Then one must take the steps to
defend the copyright from infringement. But
copyrights are expensive to litigate, and chess
games have little commercial value. There are
no court precedents of a copyright infringement
on a chess game.

Emanuel Lasker tried to copyright his games

and he was met with a press boycott.
Eventually, the chess community came to a
consensus that any attempt to copyright games
was bad for the game.

You do not need to register to have a copyright.

In general, registration is voluntary. Copyright
exists from the moment the work is created.
You will have to register, however, if you wish
to bring a lawsuit for infringement of a U.S.
work.

Registration is recommended for a number of

reasons. Many choose to register their works
because they wish to have the facts of their
copyright on the public record and have a
certificate of registration. Registered works
may be eligible for statutory damages and
attorney's fees in successful litigation. Finally,
if registration occurs within five years of
publication, it is considered prima facie
evidence in a court of law.

You have to first register your work before you

can sue for it. You can only get statutory
damages for infringements that took place
either after the registration or after publication
if the work was registered within three months.
Without statutory damages, most copyright
infringement lawsuits are a waste of resources.

One needs to register a copyright before filing a

suit. Prompt registration is required to receive
statutory damages and attorney's fees. One
needs to review the copyright registration
certificate issued by the Copyright Office
(https://www.copyright.gov/rrc/) to see if the
copyright ownership has been transferred.

A public search of the Copyright Catalog and

Copyright Number can be done at
https://cocatalog.loc.gov/cgi-
bin/Pwebrecon.cgi?DB=local&PAGE=First

You must register your copyright with the U.S.

Copyright Office before you are legally
permitted to bring a lawsuit to enforce it. You
can register a copyright at any time but filing
promptly may pay off in the long run. "Timely
registration" — that is, registration within three
months of the work's publication date or before
any copyright infringement actually begins —
makes it much easier to sue and recover money
from an infringer. Specifically, timely
registration creates a legal presumption that
your copyright is valid and allows you to
recover up to $150,000 (and possibly lawyer's
fees) without having to prove any actual
monetary harm.

You cannot sue for copyright infringement

unless you have registered your copyright.
Even if you are the victim of copyright
infringement, the law requires copyright
registration in order to pursue a federal
copyright infringement lawsuit, and copyright
infringement generally must be brought in
federal court.
Without a registered copyright, you can't file
suit for copyright infringement. That means if
somebody infringes on your work and isn't
willing to correct the situation to your
satisfaction when you complain, you'll have to
register the copyright before you show up on
their radar as an actual threat. There may be
situations where you can take legal action for
some other cause related to the theft, but not for
copyright infringement. Also, if you don't
register within 5 years of creating the work, the
court does not have to recognize the registration
you do file as self-evident proof.

If registration is made within 3 months after

publication of the work, statutory damages and
attorney's fees will be available to the copyright
owner in court actions. Otherwise, only an
award of actual damages and profits is available
to the copyright owner.

The award of statutory damages and attorney's

fees is the big stick in copyright law that
prevents most cases from going to trial — less
than one percent of infringement suits filed.
The statutory damages will likely be less of an
expense for the infringer than paying the
plaintiff's attorney fees if the case goes as far as
trial. Figure on five figures just to get the ball
rolling, and six figures if the case ends up going
to trial. If the copyright isn't registered three
months after publication or before an
infringement, that's cash you'll have to pay out
of pocket, which is likely to be more than any
damages you can hope to recover unless the
infringing work was a bestseller or had that
much of an impact on your own sales.

If you need to register a copyright in a hurry so

you can launch a legal action to seek an
injunction against somebody who is destroying
your business, the current fee is $685, and you
may need to provide proof of pending litigation
in order to get it. But the bottom line is this. In
most instances, a registered copyright will
ensure that if somebody does infringe on your
work, they'll be under tremendous pressure to
remedy the situation once they get legal advice.
An unregistered copyright might give them
pause, or it might give them a chuckle. Depends
on the depth of their pockets and their darkness
of their souls.

However, if you aren't planning on suing

anyone, the registration process itself is a
waste. You can still file Digital Millennium
Copyright Act (DMCA) notices, send cease and
desist letters and demand licensing for your
work. A work is protected by copyright the
moment it is created, but if you want to enforce
that copyright in a court, you need to register
it.

You can register your copyright by filing a

simple application and depositing one or two
samples of the work (depending on what it is)
with the U.S. Copyright Office.

There are two ways to file a copyright

application:

- file online (using the Copyright Office's

electronic eCO system), or

- file a traditional printed copyright form

(Forms PA, TX, VA, SR, etc.), each of which is
specific to the type of work (for example, Form
TX is only for text works).

If you're comfortable with electronic filing—

that is, preparing and filling out forms online—
the eCO system is less expensive ($35 instead
of $65 for Forms VA, TX, PA and SR) than
using paper forms, and will likely result in
faster turnaround.

If you are used to the traditional application or

feel more comfortable using a form that is
specific to your type of work, use the familiar
forms (Forms VA, TX, PA, SE, or SR) and pay
a higher fee ($65 per application).

The eCo system and the paper forms can be

found at www.copyright.gov. Note, the fees
change periodically. Check with the Copyright
Office for current fees.

The Copyright Act requires that copyright

owners deposit two copies of their works with
the Library of Congress within 3 months after
the works have been published. This is known
as the mandatory deposit requirement. When a
registration application is submitted to the
Copyright Office the copies of works submitted
with that application usually satisfy the
Library's independent deposit requirements.

Copyright law states that copyright protection

of a work subsists even after 70 years of the
author's death. Usually, copyright is taken over
by the author's heirs or an entitled person to
whom the copyrighted work has been assigned.
These persons may thus exercise the author's
right until 70 years after his death.

Since March 1, 1989, a copyright notice is not

required for published works. Since that date,
there has been no formal requirement to mark
your work with the copyright symbol. In fact,
there are no formalities at all. Copyright is
created in a work once it is fixed into a tangible
medium of expression. This means your chess
column is protected the second you hit the
"save" button.

An exception is made for materials put to work

under the "fair use rule." Fair use is a legal
doctrine that promotes freedom of expression
by permitting the unlicensed use of copyright-
protected works in certain circumstances.
Section 107 of the Copyright Act provides the
statutory framework for determining whether
something is a fair use and identifies certain
types of uses—such as criticism, comment,
news reporting, teaching, scholarship, and
research—as examples of activities that may
qualify as fair use.

This rule recognizes that society can often

benefit from the unauthorized use of
copyrighted materials when the purpose of the
use serves the ends of scholarship, education, or
an informed public. For example, scholars must
be free to quote from their research resources in
order to comment on the material. To strike a
balance between the needs of a public to be
well-informed and the rights of copyright
owners to profit from their creativity, Congress
passed a law authorizing the use of copyrighted
materials in certain circumstances deemed to be
"fair" — even if the copyright owner doesn't
give permission.

Examples of fair use in United States copyright

law include commentary, search engines,
criticism, parody, news reporting, research, and
scholarship. Fair use provides for the legal,
unlicensed citation or incorporation of
copyrighted material in another author's work
under a four-factor test.

The four factors to be considered in fair use,

according to Section 107 of the Copyright Act
are:

1. the purpose and character of the use,

including whether such use is of a commercial
nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion
used in relation to the copyrighted work as a
whole; and
4. the effect of the use upon the potential
market for or value of the copyrighted work.

Often, it's difficult to know whether a court will

consider a proposed use to be fair. The fair use
statute requires the courts to consider the
following questions in deciding this issue:

- Is it a competitive use? (In other words, if the

use potentially affects the sales of the copied
material, it's usually not fair.)

- How much material was taken compared to

the entire work of which the material was a
part? (The more someone takes, the less likely
it is that the use is fair.)

- How was the material used? Is it a

transformative use? (If the material was used to
help create something new it is more likely to
be considered a fair use that if it is merely
copied verbatim into another work. Criticism,
comment, news reporting, research, scholarship
and non-profit educational uses are most likely
to be judged fair uses. Uses motivated primarily
by a desire for a commercial gain are less likely
to be fair use).

Noncommercial use is more likely to be

deemed fair use than commercial use, and the
statute expressly contrasts nonprofit educational
purposes with commercial ones. However, uses
made at or by a nonprofit educational
institution may be deemed commercial if they
are profit-making. (Our chess website has
always been non-commercial, free to anyone,
and associated with chess education.)

Fair use is only available in situations where

authors/artists do not have a legitimate claim to
demand permission or payment. Fair use will
allow people to use your work to illustrate a
larger trend or idea, to comment on or interpret
your work, to teach students about your work
and how it fits into the history of the field, or to
make a new work that adds value to and is
different from yours. It will not let them sell
copies of your work without permission or
make any other use that displaces a market you
should be able to exploit. Making your works
available for these kinds of uses is part of the
social bargain inherent in fair use.

As a general rule, if you are using a small

portion of somebody else's work in a non-
competitive way and the purpose for your use is
to benefit the public, you're on pretty safe
ground. On the other hand, if you take large
portions of someone else's expression for your
own purely commercial reasons, the rule
usually won't apply.

If someone has good reason to believe that a

use is fair — but later finds herself on the
wrong end of a court order — she is likely to be
considered an innocent infringer at worst.
Innocent infringers often don't have to pay any
damages to the copyright owner but do have to
cease the infringing activity and sometimes
must pay the owner for the reasonable
commercial value of that use.

If a copyright owner transfers all of his rights

unconditionally, it is generally termed an
"assignment." When only some of the rights
associated with the copyright are transferred, it
is known as a "license." An exclusive license
exists when the transferred rights can be
exercised only by the owner of the license (the
licensee), and no one else — including the
person who granted the license (the licensor). If
the license allows others (including the
licensor) to exercise the same rights being
transferred in the license, the license is said to
be non-exclusive.

There are a few certain principles when it

comes to copyright in cyberspace. You are free
to read, watch or listen to any material to which
you have authorized access, even if it is
copyrighted. Because downloading material to
your own computer necessarily makes an
electronic copy of it, and because printing what
you've downloaded makes another copy, a
copyright owner is entitled to prohibit
downloading and printing. The site owner is not
necessarily the copyright holder of the site's
content. A site owner may hold the copyright to
some materials but not others, or to none of it.
Requests for permission should be directed to
the copyright holder, not necessarily the
website owner. You should not have a problem
if you simply post a link to another site, even if
that site contains copyrighted material. In such
a case, you are not publishing the material; you
are simply pointing the way to someone else's
publication.

If you create a website and wish to post

copyrighted material on it, you must obtain the
permission of the copyright holder, just as you
would for more traditional media, unless fair
use or another exemption applies.

A copyright cease and desist letter does not

automatically signify a lawsuit. It is simply a
warning about illegal behavior that lets you
know that further penalties could follow if the
behavior, such as infringement, doesn't stop.
For a copyright infringement, it should include
details about the property, the dates and
circumstances of violation, proof that you own
the property, and the consequence of future
violations. If you get a Cease and Desist letter
about a copyright infringement, it must include
the following basic elements.

- Sender: an individual or business who is

requesting that a behavior stop

- Recipient: an individual or business who is

being asked to stop a behavior

- A detailed description of the offending

behavior and the negative effects the behavior
has had
- A warning that legal action will result if the
offending behavior does not stop

- A deadline by which the offending behavior

must stop or else further legal action will be
taken

Once the letter has been completed, it should be

sent by registered post to the individual or
business that has been conducting the offensive
behavior.

A cease and desist order is different from a

cease and desist letter. The main difference is in
terms of legality. Letters have almost no legal
standing. Orders do. A cease and desist order is
granted by a court. It serves as a temporary
injunction. The party that receives the order
must stop what they're doing until a trial can be
held. After the trial, a permanent injunction
may be ordered.

In 1998, a report by Willy Iclicki said that

FIDE had concluded their study into chess
games copyright and aimed to move forward.
There have been a number of legal cases in the
past on this point, all have been lost by those
trying to prove copyright. However legal action
is going to be expensive for whoever FIDE
choose to try and prove their point with. Quite
what journalists are supposed to do is unclear,
pay in case FIDE are right? Or proceed as usual
on the basis of at least 100 years of precedent.
As chess becomes more technical and the use of
databases and chess computers in preparation
has taken much of the creativity out of the
game and as FIDE have sought to emphasize
the sporting aspects of the game there can have
been no time in chess history when they have
less justification for doing this.

In 2008, in the case of Stuart Weitzman, LLC v.

Microcomputer Resources, Inc., 542 F.3d 859
(11th Cir. 2008) the Court held that because the
unlicensed copyright holder had not registered
the copyright yet, the District Court had no
Subject Matter Jurisdiction over the matter.

In 2010, the Bulgarian organizers of the Aannd-

Topolov world championship match sold the
rights to cover the event in media stations like
the Bulgarian National TV Channel. The only
cameras allowed in the tournament hall
belonged to companies that paid the organizers,
with none of the proceeds going to the players.
The organizers also attempted to sell the media
rights to transmit the games live on the Internet
for 15,000 Euros. ChessBase.com challenged
this impositions by the Bulgarian organizers
and transmitted the text moves of the match live
on their PlayChess server. The Bulgarian chess
organizers asserted their copyright ownership
and issued a cease and desist order. ChessBase
then quit their transmission of the moves.

In 2014, Scott Kildall and Bryan Cera

published a 3D-printable digital recreation of
Marcel Duchamp's original chess set. The
Duchamp Estate challenged the chess pieces as
copyright infringement. Kildall and Cera then
scrubbed the original work from the Internet.

In 2016, Agon commenced legal action against

four chess websites: Chess24, ChessClub,
Chessgames, and Chessbomb, for "blatantly
flouting restrictions on the live broadcasting of
the chess games and moves. Agon claims it had
suffered a number of Distributed Denial of
Service (DDoS) attacks, which it says were
designed to crash the website.

In 2016, a U.S. judge rejected World Chess

U.S. Inc and World Chess Events Ltd to block
websited from airing the chess moves of the
world championship match in New York
between Carlsen and Karjakin. The judge said
that the public interest would be served by
"robust reporting" and analysis of the event.
The defendants, Chess24.com, said that they
would be copying the audiovisual content and
then displaying the moves on their own
computerized chess board while adding
commentary and analysis.

References:

Copyright Law of the United States -

https://www.copyright.gov/title17/
Fair Use - http://cmsimpact.org/resource/fair-
use-frequently-asked-questions/
Lopez, "A Library on your computer,"
ChessBase, Dec 28, 2006
White, "Can You Copyright a Chess Move,"
The Star, Mar 15, 2009
Winter, "Copyright on Chess Games," updated
Oct 27, 2018 -
http://www.chesshistory.com/winter/extra/copy
right.html

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