(Last Updated On: July 22, 2019)

Escape room intellectual property law is an important issue, but it is often misunderstood.

Escape room owners want to protect their intellectual property rights. Escape room owners need to avoid infringing others’ intellectual property rights.

Below, I will briefly discuss how these two issues come up in relation to a few of the different types of intellectual property. Keep in mind, this article is simply a general overview of some intellectual property laws and does not constitute legal advice. Laws vary significantly by jurisdiction, and you must contact your local lawyer if you have questions or concerns about intellectual property law.

Copyright Law

Copyright laws protect original works of authorship–mainly literary, musical, dramatic, or other artistic works. The copyright owner of a work has the exclusive right to sell it, and they can sue anyone who copies/sells their work (or a substantially similar work) without permission.

Protect your copyright rights

First, it is important to note that copyright law does not protect ideas. Rather, copyright comes into play once an idea has been placed in a fixed medium (e.g., a painting, a play, a book, etc.) In the escape room context, copyrightable elements may include artwork you create for your room, photographs you take to put on your website, videos you shoot, and arguably even your room’s storyline—if it is fixed in some kind of dramatic script/play.

In many jurisdictions, copyright is automatic as soon as it is placed in the fixed medium, however, I always recommend registering your copyright with the appropriate government institution, because said registration will be physical evidence of your copyright ownership rights should you ever need to protect them. Copyright protection lasts for a set period of time (e.g., 70 years after the death of the author), and then the work becomes public domain.

Avoid infringing others’ copyright rights

As tempting as it may be to open a “Harry Potter” room (or some other popular story/brand), be aware that you may be violating copyright law. Books, movies, titles, characters, etc. are often protected, and if escape room elements are too similar to the original, it could lead to a very expensive lawsuit.

Copyright infringement can be intentional or innocent, and can be proven with merely circumstantial evidence that the copier had access to the original, and the copy is substantially similar. Substantial similarity will vary from case to case, but let’s consider the Harry Potter example. An escape room using wizards is not enough to constitute infringement. Wizards themselves are not copyrightable (they have been around for ages and appear in various histories/artistic works). However, an escape room with plot lines and characters very similar to the books (Hogwarts School of Witchcraft and Wizardry, a broomstick sport called Quidditch, a boy with a lightning bolt on his forehead, etc.) may be deemed substantially similar.

A copyright infringer can face a variety of penalties. First, the judge may issue an injunction–a court order to stop infringing. In the escape room context, this likely means that the room will be shut down. Another potential penalty is monetary damages. Typically, the copyright owner can seek damages for their lost profits, and/or any profits the copier earned from their infringement. In some jurisdictions, the owner may instead seek specific financial penalties outlined in statutes. In addition, the court has discretion to order infringers to pay the owner’s attorney fees. In rare cases, willful copyright infringers can even face criminal penalties, including jail time.

The best way to avoid copyright infringement is to create a unique theme/story for every escape game. Most escape room owners are creative people anyway, and should enjoy making up their own plots, characters, and symbols. In addition, playing a game with a completely new storyline can actually be more interesting for players.

Another option is to stick to general themes, that are too generic to be linked to any particular protected work. It is safer to call an escape game “wizard room,” “superhero room,” “gangster room,” etc. rather than invoking a specific brand.

If you really want to use other people’s material, consider reaching out to the copyright holder and asking permission. Sometimes the owner will be willing to partner with you or offer you a license to use their work.

Another option is to pull from works that are already in the public domain. Many great storylines are so old that they are no longer copyright protected. For example, books like Dracula and Treasure Island are in the public domain. Be careful though, because even though the original book may be in the public domain, films/other mediums based on the book may still be protected.

For those that insist on pulling from protected works; they should work hard to incorporate distinguishing features (so they can at least argue that it is not substantially similar to the original). In addition, copiers should be prepared to receive cease and desist letters from the owner of the work, and respond promptly. Most owners do not file a lawsuit right away, they simply send a letter demanding that the copier stop infringing their intellectual property rights. If an escape room owner immediately shuts down/changes the room upon receipt of the letter, the copyright holder should have no reason to drag the matter into court.

Trademark Law

Trademark laws protect an owner’s distinctive emblem, logo, or symbol that identifies their brand/goods in commerce, and distinguishes them from goods sold by others. Trademark owners can sue when someone uses their mark without permission, and use of the mark will confuse consumers.

Protect your trademark rights

In the escape room context, your trademark is your name/logo that distinguishes you from other escape room businesses. The first step is to choose a name that you can trademark—this typically involves a simple search of the trademark office database to make sure your desired name is not already owned. Once you choose your name and design your unique logo, you need to register the trademark(s) with the appropriate government institution (there is no automatic protection like copyright). Keep in mind, if you plan to operate your escape room in multiple locations, will likely have to trademark your name/logo in each jurisdiction you seek protection. For example, registering your name in the UK will not prevent someone from using that name in Australia. As with copyright, trademark protection lasts for a set period of time (e.g. 10 years) but you can renew it by notifying the trademark office that the mark is still in use.

Avoid infringing others’ trademark rights

You do not want to use any mark that would cause consumer confusion. As discussed above, you want to use a unique name. If you fail to do a name search in advance, you may end up copying someone else’s company name. In some cases that trademark holder can force you to change your name and re-design all of your signage/promotional materials. Not only are those changes costly, but you are likely to lose customers that know you by that name. Another trademark infringement issue in the escape room context occurs in the rooms themselves. For example, using something like the Batman symbol in a superhero themed room may constitute trademark infringement. That distinctive bat-shaped symbol is owned by DC Comics, and using the mark in an escape room would confuse consumers by suggesting that the escape room is somehow affiliated with their Batman brand.

A trademark infringer may be faced with an injunction ordering them to stop using the trademark. The court may also order that any object with the infringing trademark on it be destroyed. A trademark owner may also seek monetary damages based on lost profits/profits made by the infringer. In some jurisdictions, the judge has discretion to grant damage awards as high as three times the amount of actual lost profits. In addition, trademark infringers may be ordered to pay the owner’s attorney fees. In severe cases, infringers may even face criminal penalties.

Once again the best way to avoid infringement is to create unique marks. Think of a unique name/logo for your business, and do the proper searches to make sure you are not copying. Similarly, design your rooms carefully, for example with a made-up superhero with his/her own unique symbol.

Patent Law

Patent laws protect new useful inventions. Typically the laws apply to tangible scientific/mechanical inventions, and they give the inventor the exclusive right to sell/manufacture their invention for a set period of time (e.g. 20 years).

As an escape room owner, it is unlikely that you will need to apply for a patent. It is a lengthy expensive process that generally only makes financial sense if you are going to mass-manufacture an invention. In addition, most puzzles will not qualify, because they do not meet the requirements of an invention that is new, useful, and non-obvious. However, if you are a prop-designer in the escape room industry that invents a mechanical prop for mass production, you may want to consider a patent.

Trade Secrets Law

Trade secrets laws protect confidential information—this can include formulas, patterns, methods, compilations, programs, techniques, or processes. Trade secrets are ones used in business that give you an economic advantage over competitors who do not know/use that secret. Unfortunately I am not aware of any actual case law involving escape rooms, however, of all the branches of intellectual property law, this is the one most likely to protect escape room puzzles.

Protect your trade secrets

Trade secrets laws rely heavily on contract law, so you need to have players/employees sign a contract agreeing not to reveal your trade secrets. The easiest way to do this is to have each player sign a waiver before the game, promising not to reveal puzzles/inner workings of your room. I recommend digital waivers like EscapeAssist, Buzzshot, Escape Room Master, etc. because you can easily store/find a particular waiver if someone misappropriates one of your trade secrets. Similarly, you should have your employees sign contracts not to reveal trade secrets/confidential information because they have access to all your puzzles, business practices, and customer lists.

Unlike other types of intellectual property trade secrets are not protected for a set period of time, they remain protected until they are released/become generally known. The trade secret remains protected unless you fail to maintain secrecy, or the information is independently discovered. The key is to keep your trade secrets confidential. If you do think one of your trade secrets has been misappropriated you will need to prove that it was stolen from you, not discovered independently. For example, you will need records showing when the infringer played your escape room, a signed waiver agreeing not to reveal trade secrets, and evidence that the puzzle is a direct copy.

Avoid misappropriating others’ trade secrets

If you sign a contract promising not to reveal trade secrets, do not breach it. In most jurisdictions, you will face a civil lawsuit. A judge may order you to take steps to maintain the secrecy of the trade secret, order you to pay a royalty to the owner, or order you to pay damages to the owner (including court costs, and reasonable attorneys’ fees). I understand many escape room owners play their competitor’s games to get a feel for the kinds of rooms they offer. However, it is still essential to create your own unique rooms/puzzles to avoid litigation.

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About the Author

Laura Kendall is the Co-Founder and Marketing Director of EscapeAssist Software. The EscapeAssist team has designed an all-in-one escape room software—game manager, booking system, website builder, digital waiver, leaderboard, and automatic player follow-up all in one app! Laura is a licensed California attorney with experience in various areas of law, including civil litigation, employment, insurance defense, and intellectual property. She is an escape room enthusiast who has played over 50 games around the world. Laura is very active in the escape room industry as a blogger, top Quora writer, and contributing author for the escape room trade magazine “The Last Lock.”