I decided to put this blog post together to help educate the Escape Room community about intellectual property and the Risk Vs. Reward of inellectual property infringement. Due to the complexity of the subject and the fact that it is its own entire branch of the law this post will serve as a resource for you to do your own research into IP before you decide to open the next great Harry Potter escape room.
Disclaimer: I am not a lawyer! I am but a humble Escape Room Owner and Blogger.
This article is meant to be informative in nature and should not be construed as legal advice. If you have any questions about whether or not your Escape Room infringes legally protected intellectual property please consult an attorney.
A claim of copyright infringement can destroy your Escape Room Business
What brought this subject to mind for me was a series of videos on YouTube regarding a copyright infringement lawsuit between H3H3 Productions and another YouTube personality who sued for copyright infringement. The case was recently resolved with the judge siding in favor of the defendant's H3H3 Productions. What was a real eye-opener for me was the gravity of the case and how it nearly destroyed the business of H3H3 Productions and nearly cost them everything financially and personally. The litigation as reported in the videos, cost the defendants in excess of $150,000 to defend against the plaintiff's claims of copyright infringement. I am pretty certain that most escape room companies cannot afford to fight a lengthy court battle over a copyright violation.
Think about the Risk vs. the Reward
Everybody loves Harry Potter, especially in the Escape Room industry! The Harry Potter brand is worth BILLIONS, yes, BILLIONS with a B. In the last 6 months there have been numerous escape rooms announced that are utilizing the Harry Potter brand, most assuredly without permission from the Warner Brothers entertainment company. To my knowledge, as of the date of this writing, no escape room company has been sued for copyright infringement. At most, an escape room company may have received a cease and desist letter from the copyright holder's powerful attorneys. In my opinion it is only a matter of time before an escape room company is sued in a court of law and made an example of. Attaching your game to the Harry Potter Brand is pretty much a guarantee that you will have a wave of Potterheads at your door frothing at the mouth to play your game. In the words of Glenn Frey - The lure of easy money has a very strong appeal.
Is the School of Magic depicted above a violation of the Warner Brothers I.P.? I am not in a position to make that determination but it could conceivably be determined that there are elements that violate the Harry Potter brand. That is entirely between the copyright holder and the producers of this game.
The Author J.K. Rowling and the Warner Brothers WILL ENFORCE THEIR COPYRIGHT. The website Trademark & Copyright Law detailed a list of lawsuits filed to protect the Harry Potter brand. This article is a couple of years old but you get the idea. Not even the U.S. Army is immune to copyright litigation when it comes to the boy with the lightning scar.
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“The lawyers for J.K. Rowling and her licensees are always on the lookout for potentially problematic trademark usage and domain name registrations.”
A Video Introduction to Intellectual Property
The good folks over at CrashCourse have produced an excellent series of videos as an introduction to Intellectual Property. I would highly encourage every new escape room owner to view these videos to begin to understand what constitutes intellectual property and copyright protections. I have directly linked to the videos that pertain to copyright and intellectual property. The Entire series is outstanding and covers additional topics including Patents and Trademarks.
Myths and Facts in avoiding copyright infringement
Mark Radcliffe and Dianne Brinson co-wrote an excellent article all the way back in 1997 that details some Myths and Facts in Avoiding Copyright Infringement. The article gives a well-researched background of what intellectual property is and what is protected under United States Copyright Law. One of the key takeaways that pertain to what we do as Escape Room owners and designers were, this quote.
“Generally, you cannot escape liability for copyright infringement by altering or modifying the work you copy. If you copy and modify protected elements of a copyrighted work, you will be infringing the copyright owner’s modification right as well as the copying right.”
There are numerous instances of Escape Rooms that are violating copyrights. A simple Google search will reveal hundreds of unlicensed escape rooms. As an example I searched for the string "Saw Escape Room" There are currently in excess of 2700 links for Escape Rooms that use the SAW franchise as the "inspiration" for their games. Many directly use the name of the SAW movies in the name of their games. These games are not the only examples of games that are most likely using unlicensed intellectual properties. In an article posted to the escape room review web site Escape Authority author Chris Moschella posits the question "where do you feel the *actual* line is? “Inspired by” something is entirely within the law as long as it does not imply or claim to be an official implantation of that IP.
Update: 02/18/2018 An officially licensed SAW escape room was opened recently in Las Vegas, Nevada.
Here is an example of a company that is drawing on a major property for inspiration but not violating the copyrights of the owner. They are using tropes and themes from properties such as Star Wars, James Bond, Harry Potter, and The Walking Dead in a clever way without directly ripping off those properties.
Copyright Protection, It's the Law.
The U.S. Constitution delineates the Congress' authority to control copyright. The pertinent U.S. Law is covered in a 367-page document entitled Circular 92 Copyright Law of the United States
and Related Laws Contained in Title 17 of the United States Code
The use of intellectual property is an oft and hotly debated topic in the Escape Room forums on Facebook. There is no lack of support on both sides of the argument. Some international escape game manufacturers play pretty fast and loose with many high value IP's. If you are considering opening an escape room and don't want to design your own games, that is fine. I would advise you to carefully screen the games you are buying to ensure that you are not putting your business in jeopardy when a multi-national company comes to you with high paid attorneys. You can rest assured that the company you purchased the game from is not going to be standing next to you in court or refunding your money that you already spent.