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."
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.
Chess games without annotations cannot be copyrighted.
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.
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/copyright.html
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