The question of which is older – chess or copyright – is easy to answer. How they relate to each other, however, seems less straightforward.
Parallels between chess and art: this is how a German world champion argued in favour of copyright protection. Illustration: Franziska Raaflaub
The precursors of chess came from India to Europe in the Early Middle Ages. In 10th-century Byzantium, the pieces moved in circles on a round chessboard. ‘Versus de scachis’, which dedicates 98 verses to the game, was written between 900 and 950 AD. Tsar Ivan ‘the Terrible’ died while playing chess in 1584. Napoleon enjoyed playing chess – as much as his busy schedule of trying to conquer the world allowed it. Stefan Zweig’s ‘The Royal Game’ was published in 1942, Friedrich Dürrenmatt’s ‘Schachspieler’ [The Chess Player] in 1998 and the Netflix hit ‘The Queen’s Gambit’ became a cure for the lockdown blues in 2020.
Chess has been influencing culture and art for centuries. But what about its legal protection?
You often read or hear that no game is as closely linked to art as chess. If you think about legally protecting the game, this connection to art makes you automatically think of copyright law. Copyright protects works, i.e. ‘literary and artistic intellectual creations with individual character’ (Art. 2 para. 1 CopA). But why would anyone want to protect a chess game? Isn’t it in the public domain?
The world chess champion who fought to copyright chess games
One person who fought tenaciously to copyright chess games is the German world chess champion Emanuel Lasker. In his justification, he referred to the parallels between chess and art: “I was willing to give the chess world my art and my thinking and thereby support the chess world and promote the game, but I demanded that it take on and fulfil a responsibility [...] Admittedly, it [the chess world] argues that chess is not suitable as a career. However, the millions of chess fans who recreate published master games and enjoy and learn from them should not support this point of view. The music world could use similar arguments to deprive talented professional musicians of their bread and butter, which would obviously be an injustice. Only people who dedicate themselves completely to something achieve greatness in it” (translated from German). Lasker came from a rather poor background and lived through much hardship. His predecessor, the first world chess champion, Wilhelm Steinitz, was also unable to make a profit from his chess-playing throughout his life and died completely impoverished.
Emanuel Lasker wanted to create an opportunity to earn money by protecting chess games under copyright law. Photo: Swiss Federal Archives
Individual character? How chess differs from music
Emanuel Lasker wanted to create an opportunity (for himself) to earn money by copyrighting chess games. Among other things, he believed that those who publish games in newspapers or books should pay the chess players remuneration and thus ensure that the masters ‘no longer die lonely in hospitals’ in old age. The lawyer Walter Jung tackled the subject in 1931 in his dissertation ‘Gibt es ein Urheberrecht am Schachspiel?’ [Can you copyright a chess game?]. He came to the conclusion that the game of chess lacked the individual character required as grounds for copyright. Unlike in music, for example, where various means of expression are possible, a chess player can only express themself through moves. Moreover, the chess player’s intention is not to design the sequence of moves in a certain way, but to win the game. Accordingly, a description of a chess game that merely contains the details of the moves made must be available to everyone, just as it’s also permitted to communicate other purely factual events.
A legal opinion by the German Chess Federation (1994) also comes to the conclusion that a game of chess does not belong to literature, science or art and uses several case constellations to illustrate why intellectual property protection would be difficult to implement. The cases raise the question, for example, of whether the losing player would also have a share in a potential intellectual work, as their mistakes make an ‘artistic’ combination possible in the first place.
Discussion about protecting moves still topical today
A lot has happened in terms of finances since Emanuel Lasker – at least in top-level chess. The fortune of 17-time title-winning world chess champion Magnus Carlsen is estimated to be between 10 and 30 million US dollars. In 2023 alone, he won more than 700,000 US dollars in prize money. However, the debate in the legal community on whether you can copyright chess games hasn’t died down. In 2016, the District Court for the Southern District of New York dealt with the question of whether individual moves in a chess game are subject to copyright protection. It ruled that they are not by comparing the moves with scores and events in basketball, which are not protectable as they are facts. In 2019, the lawyer Daniel Hoppe addressed the issue in a journal article and criticised this approach. He pointed out that the communication of the moves does not equate to the communication of an intermediate result, but rather constitutes the transmission of the event itself. He counters the expert opinion of the German Chess Federation by stating that the involvement of both parties in the game is linked in a similar way to the improvisation of several people in theatre or music: “The work arises in co-operation and opposition while the game is being played.”
The game of chess as protected improvisation theatre? Photo: iStock
Protecting chess as if it’s improvisational theatre? What impact would this have on participants and broadcasters? The parties involved in the chess game could hardly be expected to carry out a copyright examination before adopting or adapting a game. Media and online portals that broadcast chess games would have to recognise the moment at which ‘the game enters the stage of an independent copyright-protected work’ and stop broadcasting – or conclude contracts with the parties in advance in order to obtain the corresponding exploitation rights. However, a collective remuneration model failed in the Netherlands in the 1960s and 70s.
Conclusion
The question of whether chess games are protected by copyright cannot be answered conclusively due to the scarcity of case law and sources. Nevertheless, it illustrates the balance of interests on which copyright law is based. What would have to be taken into account, in particular, is the interest of the chess player in generating income from his or her own ‘work’ and the interest of the general public in free use of the game, which becomes part of culture and maybe even art.
About the author: Franziska Raaflaub is a legal adviser at the IPI. She specialises in copyright law.
