Is it legal to rent board games?

Asked over 1 year ago - Brooklyn, NY

I know that some types of media (movies, software) have special rules regarding whether the purchaser can rent them to others for money. Is this true of board games?

Attorney answers (5)

  1. 8

    Lawyers agree

    1

    Answered . My conclusion is that, yes, copyright law permits renting lawfully acquired board games. And now for the rest of the story …

    Copyright law at 17 U.S.C. Section 106(3) provides that the owner of a copyright has the exclusive right “to distribute copies ... of the copyrighted work to the public by sale or other transfer of ownership, or by RENTAL, lease, or lending.” So the default rule is that the owner of a copyrighted board game cannot lawfully rent those games [or any copyrighted work] to the public because that is a "distribution" of a copyright-protected work.

    HOWEVER, 17 U.S.C. Section 109(a) provides that, notwithstanding the copyright owner’s Section 106(3) distribution right, the owner of a particular copy of the work "is entitled, without the authority of the copyright owner, to sell or otherwise dispose of that copy ... ."

    So ... while the distribution right granted to copyright owners by Section 106(3) includes the exclusive right to RENT physical copies of their copyrightable works, the Section 109(a) "first sale" statute confers on the owners of the physical copy of the work the right to "dispose of" their copies of that work however they chose -- including by renting to others.

    But that's not the end of the analysis, as you rightly note. The "copyright industries" are the software, music, and movie industries and the publishing community. The software and music industries persuaded Congress to EXCLUDE software and music from the first sale doctrine -- which means those types of works are once again protected under the 17 U.S.C. Section 106(3) default rule and so CANNOT lawfully be rented [see Computer Software Rental Amendments Act of 1990 and the Record Rental Amendment of 1984].

    The movie industry tried to persuade Congress to grant it a similar exemption but failed [see The Consumer Video Sales/Rental Amendment of 1983]. As a result, the 17 U.S.C. Section 109(a) first sale statute applies to movies and so physical copies of movies lawfully acquired may be RENTED. And the publishing community has not even tried to except out their literary works from the first sale statute.

    I’m unaware of any efforts by the board game industry to have board games excluded from the first sale statute. So I think it applies [just like movies]. Which means, to me, that they can be rented.

    Before you start a board game rental business, however, your own intellectual property attorney needs to do this same analysis to check my conclusion.

    The above is general information ONLY and is not legal advice, does not form an attorney-client relationship, and... more
  2. 5

    Lawyers agree

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    Answered . I would agree that a board game is not the same as software for example where you take possession under a license agreement that likely prohibits you from commercializing it.

    Once you purchase the board game it becomes your personal property and just like you can sell it I see no reason why you would not be able to rent it out.

    You cannot take my answer as conclusive, however, but at first blush nothing alarming jumps out at me here. I do think you would have to be careful how you represent to the public the game brands that you have so not infringe on their IP.

    I am not sure why you would consider this a profitable model but perhaps you see an opportunity somewhere.

    I would add that anytime you endeavor into a business venture you should be consulting with a lawyer to discuss your plans and to get proper guidance. Most of us here, including myself, offer a free phone consult.

    Best regards,
    Frank
    Natoli-Lapin, LLC
    New York, NY
    (see Disclaimer)

    The law firm of Natoli-Lapin, LLC (Home of Lantern Legal Services) offers our flat-rate legal services in the... more
  3. 4

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    1

    Answered . I see no reason why someone who buys a copy of a board game (such as monopoly) would be prohibited from renting the game to others. The First Sale Doctrine would allow the owner to sell and/or rent the game.

    This would not apply to video games or digital games which involve use of software. Typical software licenses relating to games prohibit the resale of the software and negate applicability of the First Sale Doctrine.

  4. 2

    Lawyers agree

    Answered . I agree with my colleague - consult with an attorney. There several such rentals.

    This is not a legal advice or solicitation, and does not create an attorney-client relationship. Consult with an... more
  5. Answered . Yes, this appears to be OK. As the other attorneys have noted, this falls pretty squarely under the first sale doctrine. The underlying legal principles are what allow many successful game stores (FLGS) to hold special events and tournaments. My memory is a bit hazy, but I also seem to recall my local public library doing this as well with games like Monopoly and Clue.

    Having said that, it's a completely unsustainable business model. The problem with board games is that they typically require having a full set of pieces, and if one or two are missing, the game becomes unplayable. And your target market is going to include children, who won't understand the necessity of keeping all the pieces together. If your board gets marked up, useless. If your Monopoly money gets all folded and ripped, useless. And board games are not particularly expensive -- your profit margins would be razor thin considering that the games themselves are only typically $8-$20. For the price and time effort involved in renting, most people will simply choose to purchase their own game -- if you plan to take any kind of security deposit, your profit margins will be non-existent. So if you're planning on doing this as a full-scale, full-time business, I'd suggest some serious research and consultation.

    Best of luck.

    I focus my practice on (video) gaming industry, casino gambling, and complex internet law issues, electronic free... more

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